HC Deb 13 March 1996 vol 273 cc948-55

1 pm

Mr. Brian H. Donohoe (Cunninghame, South)

This debate has been rather overshadowed by events in Scotland today. I understand that at Dunblane primary school in Dunblane 13 children and two adults have been killed and eight others have been injured. I offer my sincere condolences to the families and relatives of those killed or injured in the tragedy. I understand that, later today, formal statements will be made by the Leader of the House and the shadow Leader of the House. I also understand that the Minister of State wants to say a few words, and I give way to him.

The Minister of State, Scottish Office (Lord James Douglas-Hamilton)

The whole House will share the sense of distress, horror and outrage that children lost their lives at Dunblane primary school this morning in an appalling incident. The whole House will wish the deepest sympathies to be expressed to the families of the victims and to the families of those who have been injured. My right hon. Friend the Secretary of State for Scotland and the hon. Member for Hamilton (Mr. Robertson), the shadow Scottish Secretary, left this morning to travel to Dunblane, and I understand that the Under-Secretary of State responsible for education, my hon. Friend the Member for Aberdeen, South (Mr. Robertson), is already there.

The House should expect a full statement to be made as soon as all the facts have been established. My right hon. Friend the Leader of the House will confirm the arrangements for a statement at 3.30 pm today.

Mr. Donohoe

I am grateful to be able to present the case in this short Adjournment debate of Charlie Thom of 35, Ashgrove road in Kilwinning, which involves a march-fence division wall. The case could be considered to be very complicated. Indeed, from reading several documents and letters concerning it, I consider it complicated. I shall try to make it as simple as possible and break it down into three different sectors. The first concerns the courts, the second concerns politicians and the Government and the third concerns the Scottish Law Commission.

I shall try to approach the matter from a simple commonsense point of view and outline the case briefly. I understand that the wall was built in the early 1950s and that a wooden fence was subsequently built next to it without Mr. Thom' s permission. Lord Jauncey, the Lord Ordinary, heard the case over 28 days in 1987 and, on 24 April 1987, came to the conclusion that the case was not made by Mr. Thom. He said that huge sums of money had been spent in defending and prosecuting the case. It has been estimated that more than £50,000 was spent—concerning a wall that cost between £700 and £1,000 to build.

In the opinion of the pursuer, Mr. Thom, Lord Jauncey' s statement ignored all previous decisions. To find case history, one has to go back to the 19th century, when there were five cases that specifically concerned boundary walls. The first such case was Wallace v. Brown on 21 January 1808, and the last was Cochran' s Travellers v. Caledonian Railway Company in 1898.

Mr. Thom argues that Lord Jauncey came to his conclusion on the basis of tenement gable cases in the 1900s and took into account the minority view of the last case in the previous century, to which I have referred. Lord Jauncey concluded: However I can see no reason why the principles of law applicable to the interest in a gable built half on A's land and half on B's land should differ from the principles applicable to the simple division wall similarly built". I understand that the Scottish Office Minister became involved on 27 October 1987, when he wrote: The Secretary of State cannot interfere in the judgements of the courts. Such judgements can only be overturned in the normal manner by appealing to a higher court and Mr. Thom should consult his own solicitor regarding this. Two Lord Advocates became involved in the case. The first, Lord Cameron of Lochbroom, said on 21 December that Mr. Thom should refer the matter to the Scottish Law Commission, as did his successor, Lord Fraser of Carmyllie, on 2 March 1992.

At about the same time, Mr. Thom wrote to the Faculty of Advocates, and on 4 June 1993 was told by the dean of the faculty to take the matter up with the deputy principal clerk of session. That had disastrous consequences for Mr. Thom, of which I am sure the Minister is aware. It has caused such a delay that the case has still not been considered by a judge.

After a fairly lengthy written and verbal dialogue with Mr. Thom, the third vehicle in the case, the Scottish Law Commission, produced a consultation document in June 1992. It was very supportive, as was a letter from Lord Davidson, the chairman of the commission. Shortly before the research undertaken by the commission on the subject was completed, Lord Davidson said: case law on the subject is in disarray". I would argue that there is a remedy. It is clear that the law on dividing walls is in total disarray. The law faces two ways and there are two lines of decision that cannot satisfactorily be reconciled. It is clear that my constituent no longer has any confidence in the Scottish legal system—and with some justification, given what I have described. The extent of the events that have occurred in the Scottish Court Service is astonishing, as I understand the Minister is aware.

What can we do to remedy the situation? For one part, compensation is due. We need only to approach the matter from a commonsense point of view. Everyone knows that it is not possible to own half a brick, yet the judgment seems to suggest that it is. As it is not possible to own half a child, it is certainly not possible to own half a brick. Such a premise makes a nonsense of the law, and the law falls into disrepute in the eyes of the public as a result.

Lord Jauncey had absolutely no right or power to change the law. As I understand it, to change a point of law in Scotland, five judges sitting together are required to make a majority decision. A single judge does not have that power.

The only other two ways in which the law can be changed are through the House of Lords, on a case basis, and through the House of Commons, by statute or by parliamentary order. Those are clearly not open to Mr. Thom. In terms of his rights of appeal, it would be nonsense for him to approach the case from the angle suggested by many people. The use of judicial discretion in the case has been highly questionable.

The most recent annual report of the Scottish Law Commission said that the case would have to be set aside because, as with other cases of equal importance, more resources are needed from the Government to continue with it. The Government must examine the resourcing of the Scottish Law Commission. In my discussions with the commission, that fact has been clearly borne out.

The time spent on the case has been inordinate. My constituent has been almost literally banging his head against a brick wall for more than 15 years. He feels that the system of law has been ganging up against him, and that there has been some form of collusion. So far as I can determine, all facets of the law suggest that he has a right of appeal. The Scottish Law Commission alone stands against that possibility.

About 3,000 years ago, in a book called the Mishnah, the Jews determined what would happen if two parties decided to build a dividing wall: If they acted with each other's consent, they should build the wall in the middle and make the boundary mark on either side; hence if the wall fell down the place and the stones belong to them both. I fail to understand why, if the Jews could get it right 3,000 years ago, the Government in Scotland cannot get it right after more than 10 years.

I hope that the Minister will not sit on the fence, so to speak, for another 10 years. Mr. Thom is becoming an old man; he is 79 years of age, and I argue forcefully that he deserves justice today.

1.12 pm
The Minister of State, Scottish Office (Lord James Douglas-Hamilton)

I congratulate the hon. Member for Cunninghame, South (Mr. Donohoe) on obtaining this Adjournment debate. I have studied the issue closely, and there is one issue of concern to me that may provide the basis for some claim for recompense—the failure of an officer of the Court of Session to process Mr. Thom's application for a reduction of Lord Jauncey's judgment in 1993. If the hon. Gentleman or Mr. Thom believes that that failure led to additional or abortive costs for Mr. Thom, I ask them to let the chief executive of the Scottish Court Service or myself have details so that consideration can be given to an ex gratia payment to cover those additional costs.

I shall describe to the hon. Gentleman and the rest of the House the present legal position. "Common property" means a single piece of property jointly owned by two or more people. "Mutual property" means a piece of property of which two or more people own a part. The law on boundaries is mostly common law not statute law, and it is interpreted by the courts in the circumstances of the time.

The modern interpretation of the law on garden boundary walls is that each neighbour owns his own half of the wall. The two neighbours have a shared interest in the upkeep of the wall as a whole. That interpretation of the law formed the basis of Lord Jauncey's judgment against Mr. Thom in 1987. In effect, he ruled that the garden wall was mutual property, whereas Mr. Thom had argued that it was common property. That interpretation of the law has been in place since 1886, and the leading authority on property law, "The Laws of Scotland Stair Memorial Encyclopaedia", says that The modern law on boundary walls is not now in doubt". The Scottish Law Commission is now examining the subject of property law, including the law relating to boundary walls. We shall consider carefully any recommendation that it makes in due course. In the meantime, there is no reason to say that the law is unclear or in disarray.

Mr. Donohoe

Surely the Minister must recognise the fact that the Scottish Law Commission has been dealing with the case for seven years. We require a decision in the near future, not one that will take two, three or four years. Some effort is needed, because the Law Commission has no resources to complete the consultation process and present to the necessary authorities the solution to the problem.

Lord James Douglas-Hamilton

My understanding is that the Law Commission is considering its conclusions, which will reach the Government without undue delay. I shall certainly ensure that the commission is made aware of the hon. Gentleman's concern that the matter should be processed without unnecessary delay.

I shall now deal with some of the specific issues that the hon. Gentleman raised. First, he asked about the description of the boundary wall in Mr. Thom's title to his property. In the title deeds, the wall is described as mutual property between the two householders. The hon. Gentleman argued that the terms "mutual property" and "common property" mean the same thing, but I must disagree. That was a key point argued by Mr. Thom in his original case before the Court of Session, and one that Lord Jauncey considered closely in his judgment.

That judgment distinguishes clearly between the idea of mutual interest in property and the legal concept of common property. Lord Jauncey refers to that distinction as it applies in many areas of property law. Put simply, mutual interest means very much what the ordinary sense of the term implies: both parties share an interest in the overall piece of property, although they separately own only individual parts of it.

Having property in common involves a much closer relationship, because the parties are held to be joint owners of the whole property and therefore have to agree about how any part of it is treated, and share the costs of upkeep. As I made clear earlier, the law as it stands treats garden walls, such as Mr. Thom's wall, as mutual between the householders and not as common property. That is a sensible approach.

Indeed, it could be argued that treating a garden wall as common property in the strict legal sense would raise a lot more problems than it would solve. For example, should it be necessary for the party on one side of the wall to get agreement from his neighbour before he can fix a trellis to the wall and grow roses up it? That could be the effect of regarding such a wall as common property. If a garden wall built on both sides of the dividing line between two pieces of ground is regarded as common property, should the ground on which the wall is built not also be regarded as held in common?

The hon. Gentleman also suggested that the papers issued by the Scottish Law Commission following Mr. Thom's case implied that the commission—

Mr. Donohoe

On the question of a common wall versus a mutual wall, does the Minister not concede that the Thom case itself changed the definition? Before that, all case law was seen by others as based on 18th and 19th-century case history, and Lord Jauncey could show nothing to suggest that a change had taken place between the 19th century and the 20th century. Clearly from a commonsense point of view, nobody could understand what a "mutual wall" means in real terms. Does not that demonstrate a fundamental failure in Lord Jauncey's approach, in terms of common sense?

Lord James Douglas-Hamilton

The modern interpretation of the law on garden boundary walls is that each of the neighbours owns his or her own half of the wall concerned and they have a shared interest. The hon. Gentleman may disapprove of that, but that is the position. The hon. Gentleman may want to return to the position as it was hundreds of years ago, but I suspect that, were we to do that, many people would argue that we should bring the law up to date.

We are awaiting the conclusion of the Scottish Law Commission, which I hope will not take too long. I strongly disagree with the hon. Gentleman's view that "common property" and "mutual property" mean the same thing. The consultation paper issued by the commission makes clear distinctions between the technical meaning of "common property" and the sense of the term "mutual property".

The paper refers specifically to the outcome of Mr. Thom's original case, not to Mr. Thom's view of the law. It also says that the paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission". As the commission has still to complete its report on those issues, its final views are not known.

I was interested to hear what the hon. Gentleman said about Jewish law on boundaries between property. I admit that much of that was new to me, but the Scottish Office is always ready to consider and learn from good practice from other jurisdictions and I should be grateful if the hon. Gentleman would let me have papers on the Jewish legal framework. We shall study them with considerable interest.

The hon. Gentleman described the law on boundary walls as being "in disarray" and said that the interest shown by the Scottish Law Commission in Mr. Thom's case showed that the commission supported that view. The law is not in disarray. I draw the attention of the House to the firm statement about the law on boundary walls made in paragraph 223 of the current edition of Stair's "Laws of Scotland": The modern law is not now in doubt … each proprietor owns to the mid-point". I am aware of no justification for the suggestion that the Scottish Law Commission supports the idea that the law is "in disarray". The commission has a long-standing project reviewing the whole law of property, the feudal system and the law of the tenement. It has included in that project consideration of the law on boundary walls. It issued its consultation paper in 1992 and has yet to issue its conclusions. If the commission had believed that the law on boundary walls was in a critical condition, it would have made specific recommendations on the subject much earlier.

Following on from that point, I should address the hon. Gentleman's concern—

Mr. Donohoe

rose—

Lord James Douglas-Hamilton

May I develop this point? I should address the hon. Gentleman's concern that the commission's review of the issues surrounding property law has taken a long time. The commission's considered views on the specific legal issues relating to boundary walls will not be available for some time but, as I explained, the commission takes the view that there are many detailed and related issues covering the whole law surrounding property where interests may overlap or be shared. The commission wishes to explore all those issues carefully before producing final views about any aspect of property law. The commission is right to take a prudent approach. The hon. Gentleman eloquently argued the importance of the law relating to property, especially domestic property. It is important that all the complex and related issues should be carefully considered.

On the issue of compensation for Mr. Thom, I am sure that the hon. Gentleman will accept that there can be—

Mr. Donohoe

Obviously the Minister was not listening to what I said about the Scottish Law Commission. Viscount Davidson, the chairman, wrote to Mr. Thom on 16 October 1990 to say that, having researched the matter, he believed the law to be in disarray. That was in 1990; here we are in 1996, and nothing has been resolved. The latest-30th—annual report of the Scottish Law Commission says about boundary walls: Because of the need to divert resources to more urgent matters. this project has been temporarily suspended. That gives no sign of the urgency that should be applied to the matter by the Government and legal departments.

Lord James Douglas-Hamilton

The hon. Gentleman may believe that changing overnight the law on such an issue, the interpretation of which is clear in the courts, would solve many problems, but it might create many more problems. It is the job of the Scottish Law Commission to investigate all the complexities surrounding the matter and reach conclusions. That it will do, and it would be wrong for the Scottish Office to try to pre-empt its consideration because, if it were to do so and it introduced legislation, that legislation might have to be changed immediately in the light of all the evidence.

The hon. Gentleman draws only one case to the attention of the House.

Mr. Donohoe

rose—

Lord James Douglas-Hamilton

May I go on to discuss consultation? I am sure that the hon. Gentleman will accept, as I do, that there can be no suggestion of compensation for costs arising from the original court case. Mr. Thom initiated the action against his neighbour at his own instance and chose to persist in that action. The judge found against Mr. Thom and awarded restricted expenses against him. It would be wrong for the Scottish Office to take a different view and award compensation to Mr. Thom, and it would be unfair to the other party in the case, his neighbour, who is also a constituent of the hon. Gentleman.

I can see no case for compensating Mr. Thom for costs that he incurred in pursuing his view of the law with the Scottish Law Commission and others; he did so by choice. Although the commission has been grateful for Mr. Thom's detailed submissions, it does not necessarily share Mr. Thom's view of the law, although it did use some aspects of the original case as material in its 1992 consultation paper. That paper records the position of both sides in the dispute and, of course, Lord Jauncey's judgment.

The hon. Gentleman mentioned a possible judicial review of Mr. Thom's case. I am sure that the hon. Gentleman appreciates why I cannot respond directly: it is for the courts, not the Scottish Office, to decide on individual legal cases. In this instance, Mr. Thom has unsuccessfully sought to bring his case to appeal and has since tabled another application to the Court of Session, which remains outstanding, so it would be inappropriate for me to comment on that aspect of the case at this stage.

The current law in Scotland in relation to domestic boundary walls is clear. Both householders own their half of the wall and they have a shared interest in the wall as a whole. That is a practical and commonsense view, and I suspect that many householders regard it as sensible. There may be a case for placing the current law on a statutory footing, but that issue can be argued with intensity both ways and it is best tackled when we have the considered views of the Scottish Law Commission on all related property law issues.

Finally, while I admire the tenacity shown by the hon. Gentleman's constituent in pursuing his view of the law, I cannot support his or the hon. Gentleman's conclusion that the law relating to boundary walls requires urgent change. The view of the law that Mr. Thom holds is based on judgments made in the 19th century. I cannot help feeling that, if the original case had gone in favour of Mr. Thom, we might now be debating whether a more modern interpretation of the law was required—perhaps at the instigation of another constituent of the hon. Gentleman.

I am grateful to the hon. Gentleman for raising this matter, and Mr. Thorn's energy and application in pursuing a complex point of law are worthy of remark. Mr. Thom's case is a telling example of how a small domestic dispute can involve complex legal issues.

I consulted "The Laws of Scotland Stair Memorial Encyclopaedia" on boundary walls and fences. It begins with a short paragraph that hon. Members may believe sounds a warning note. In earlier times, boundaries, or "marches" as they were known, were set out with markers called march-stones, rather than walls or fences. March-stones could be moved and so were not entirely reliable. Stair records: When march-stones are solemnly set, boys used sometimes to be laid upon them and sharply whipt, whereby they will be able to remember,*and be good witnesses as to those marches when they are old, that impression on their fancy lasting long. The more modern use of boundary fences and walls may lead to some difficult legal problems, but at least small boys can rejoice in that connection.

As I understand it, the original case involving Mr. Thom began as a result of long-standing disagreement between him and his next-door neighbour. It centred on the boundary wall between the two properties. In 1982, Mr. Thom's neighbour created a fence along her side of the boundary wall. Mr. Thom argued that the erection of the fence had damaged the foundations of the wall and that the action of the wind on the fence caused further damage to the wall structure. In 1983, Mr. Thom raised an action in the Court of Session seeking a declaration that the wall was common property and that his neighbour should do nothing that would affect the wall without his consent. He sought to have the fence removed and the wall restored to its original condition.

The case was strongly contested on both sides, with Mr. Thom representing himself from a very early stage in the proceedings. By the time the case came before the court, the judge, Lord Jauncey, was so concerned about the expense of money and time on the case that he tried to encourage the parties to settle their dispute between themselves. He pointed out that the combined cost of replacing both the fence and wall was only about £2,000.

Mr. Deputy Speaker (Sir Geoffrey Lofthouse)

Order. Time is up.

Back to