Book reviews

If there had not been a tradition of private collecting of court decisions we would know little about our early law.  

But when law reporting began in earnest, in the early nineteenth century, the publication of private collections all but ceased.

A notable exception was the two-volume collection of decisions from the sheriff court by Sheriff William Guthrie (1879 and 1894).

Now, after an interval of more than 100 years, we have a second collection from the sheriff court.

The title, Unreported Property Cases from the Sheriff Courts, is slightly misleading. Not absolutely all the cases are from the sheriff courts. One (British Railways Board v Ogilvie-Grant Sykes (p 34)) is a decision of the Inner House of the Court of Session.  Another (Christine v Miller (p 243)) is from the Lands Tribunal. Nor are absolutely all the cases unreported, for the report in Scots Law Times of Cloy v T M Adams & Sons (2000 SLT (Sh Ct) 39) won the race to publication. Indeed in a broader sense cases which have now been published, and in so generous a format, can no longer be said to be “unreported”. But in one respect at least the title can be accepted without qualification. All the cases in this volume are about the law of property. That is both a reflection of the interests of the editors, Professor Paisley and Sheriff Cusine, as well as an acknowledgement that a more wide-ranging collection would require a number of volumes. 

The story of how the collection was assembled is a fascinating one. No sheriff court stores material for more than 40 years and most stop at 20. In some courts the more recent decisions are indexed or at least marked out in some way. But for the most part the material is unindexed and hence undiscoverable except by a painstaking examination of thousands of processes. One can readily imagine the indefatigable editors touring the country like some latter-day Johnston and Boswell, with days spent in dusty basements and nights in reluctant hostelries, all in pursuit of the decision which would finally demonstrate, say, the existence of a servitude of parking or the true scope of the doctrine of jus quaesitum tertio.  

Nor did the process of rehabilitation end there. The sheriff’s opinion, taken by itself, was not always comprehensible. Sometimes pleadings had to be found, deeds tracked down, sites inspected, agents interrogated. Only then was there something which might reasonably be reported.

The expenditure of time and energy is awe-inspiring. Was it worth it? On the evidence of the present volume, the answer is undoubtedly yes. The volume collects some 70 decisions covering the following topics: agricultural leases, boundaries and encroachment, burial grounds, common interest, leases, missives, moveable property, public sector housing, real burdens, servitudes, standard securities, statutory rights, and trusts and executors. The collection is dominated by servitudes which accounts for 200 of the 500 pages. The cases are mainly from the 1980s and 1990s, with the oldest being decided in 1966 and the most recent in 2000.

It may be taken for granted that the editors did not publish most of what they found.  The cases have therefore been chosen for their interest and importance and, for the most part, it is hard to take issue with the editors’ choice. If there is nothing of overwhelming significance in the collection, there is much that is useful and instructive. Often the value lies in the application of familiar principles to new situations. For example, do substantial and home-made speed humps constitute an unlawful interference with a servitude of way?  (The answer, perhaps unsurprisingly, is yes: see Simpson and Robertson v Head (p 237).) More rarely, a decision will advance on new territory – for example, the meaning of that common but elusive expression “ex adverso” (Craig’s Trs v Carson (p 199)), or the proper scope of a reservation, in a deed of conditions, of a right to alter conditions or depart from a plan (Beith v Wimpey Homes Holdings Ltd (p 187)).  For the most part the cases record day-to-day disputes of a kind familiar to conveyancers but only rarely aired in Parliament House. That this is conveyancers’ rather than advocates’ law gives the collection a special value.

Each case is supplied with an extended and fully referenced commentary by Professor Paisley, models each of erudition and common sense. Less expectedly, there are also a number of styles, ranging from boundary agreements to petitions to disinter. If sometimes a case seems unequal to the weight of the commentary which it receives, the reader will at least learn much from the latter that is absent in the former. And to accord to decisions of the sheriff court a degree of scrutiny that would be unusual for decisions of higher courts is at any rate a form of expiation for past neglect.     

An index of cases by subject matter rather than merely by name would have made the collection easier to navigate. A summary of the facts and decision at the start of each case would also have been helpful. Some of the opinions would benefit from more drastic pruning, particularly in the discussion of issues of fact. But these are quibbles.  This is both an indispensable collection and a magnificent achievement.

In putting down this volume it is disquieting to think, both of the large number of decisions which have been destroyed and of the large number which remain, unindexed, perhaps to be discovered one day by a persevering researcher. Will there be further collections on the model of the present one? If so, would they add significantly to our knowledge and understanding of the law? And will we have to wait another 100 years to find out?

Kenneth G C Reid