sc764/08 in the edinburgh sheriff court lindsays … · 2010-04-11 · in the edinburgh sheriff...
TRANSCRIPT
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IN THE EDINBURGH SHERIFF COURT
Lindsays
(claimant)
v
Graham Nassau Gordon Senior-Milne (formerly Milne)
(defendant)
Grounds for seeking recusal of Sheriff MacKinnon
or
‘The Man who bought a Kingdom by mistake’
SC764/08
G. Senior-Milne 39 Castle St Norham Northumberland TD15 2LQ
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Contents
Introduction .......................................................................................................................................... 3
Scottish feudal baronies – an overview ................................................................................................. 3
Purchase of Edrington House and report of Dr. John Robertson (1998) ............................................... 9
Report of Mr. Hugh Peskett (March 2002) .......................................................................................... 10
Petition to the Lord Lyon (May 2002) .................................................................................................. 13
Opinion of Professor Robert Rennie (December 2002 to August 2003) .............................................. 14
Draft submission of Sir Crispin Agnew of Lochnaw (October 2003) .................................................... 15
Opinion of Sir Crispin Agnew of Lochnaw (January 2004) ................................................................... 17
Correspondence following Sir Crispin Agnew’s opinion of January 2004 ............................................ 23
Sir Crispin Agnew’s second opinion (May 2004) .................................................................................. 24
Complaints to the Law Society and the Faculty of Advocates (2004 to 2005) ..................................... 26
Referral to the Sheriff Court Auditor (2006 to 2008) ........................................................................... 26
Petition to the Court of Session for a declarator of entitlement (October 2004) ................................ 26
Renewal of petition to the Lord Lyon (October 2004) ......................................................................... 28
Summary cause action in the Edinburgh Sheriff Court (November 2008 to date) .............................. 29
Conduct of Sheriff MacKinnon – Relationship with Sir Crispin Agnew ................................................ 29
Conduct of Sheriff MacKinnon – Solicitors’ negligence (the standard of proof) .................................. 30
Conduct of Sheriff MacKinnon – The burden of proof ........................................................................ 32
Conduct of Sheriff MacKinnon – Introduction of documents into the proceedings ............................ 33
Judgement of Sheriff MacKinnon ........................................................................................................ 34
Sheriff MacKinnon’s manner of dealing with the request for recusal ................................................. 36
Response of the Sheriff Principal ......................................................................................................... 37
Conclusion ........................................................................................................................................... 37
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Introduction 1. In this case the claimant firm of solicitors is suing the defendant former client (me) in relation to
the non-payment of an invoice for work carried out by the claimant on behalf of the defendant.
This work consisted of the preparation of an opinion by counsel and related correspondence
between the claimant and the defendant, as well as some other work related to making offers to
purchase various properties.
Scottish feudal baronies – an overview 2. The subject matter of the opinion concerned the question of whether the defendant owned a
Scottish feudal barony and in order to understand the case it is necessary to understand not only
the history of the case but some of the law relating to such baronies. This is regrettable but it is
impossible to do justice in this case (including in relation to my request that Sheriff MacKinnon
recuse himself) without such an understanding.
3. Until the relevant provisions of the Abolition of Feudal Tenures etc. (Scotland) Act 2000 came into
force in 2004, which was after the events giving rise to the claim occurred, a Scottish feudal barony
was a jurisdiction over an area of land; it was not, as is commonly believed, the area of land itself.
This jurisdiction was a franchise jurisdiction; it was a slice of royal (i.e. public) justice administered*
by the baron on behalf of the Crown. The distinguishing feature of this slice of public justice was
that it included the right of ‘life and limb’ (‘pit and gallows’); that is the right to try certain capital
offences (theft and manslaughter) committed within the barony (the area of the jurisdiction). Such
baronies are referred to as ‘ordinary baronies’ and are to be distinguished from feudal earldoms,
feudal lordships and regalities, which are explained below. It should be noted that a grant of a
feudal lordship or earldom implied no greater rights of jurisdiction than an ordinary barony, unless
that lordship or earldom was elevated into a regality, and that all ordinary barons, feudal lords,
feudal earls and lords of regality held their lands ‘per baroniam’ (‘by barony’) and sat in Parliament
by virtue of that holding.
*The baron did not decide cases; this was done by the jury, the peers of the baron’s court; that is,
the baron’s immediate vassals. The baron’s function was to ensure the proper administration of
justice within the barony; that is, that the proper procedures were followed. As a litigant in his own
court the baron’s standing was the same as any other litigant. This is confirmed by Professor Croft
Dickinson (see below).
4. There was a higher form of barony (but it was still a barony) called a regality. Regalities enjoyed a
higher jurisdiction which included the Four Pleas of the Crown; that is murder, rape, arson and
robbery. This meant that lords of regality enjoyed complete criminal jurisdiction excluding only
treason. A ‘lord of regality’ enjoyed ordinary baronial jurisdiction within the area of his regality but
he also enjoyed these higher rights of jurisdiction as well (so he had criminal jurisdiction in respect
of theft, manslaughter, murder, rape, arson and robbery). Royal officers, such as Justiciars, had no
authority in and were excluded from regalities and so the realm was divided into ‘royalty’, where
royal justice ran, and ‘regality’, where regality justice ran. So great were the powers of lords of
regality (which included rights of chancery, admiralty and mint, for instance) that they were, to all
intents and purposes, kings within their domains and Lord Bankton, an institutional writer (i.e. his
writings are accepted as authoritative in Scottish courts of law), in his ‘An Institute of the Laws of
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Scotland’ (II, III, 83), refers to them as ‘reguli’ or ‘little kings’ and he refers to the title as a ‘royal
dignity’. One of the rights of lords of regality was to create their own barons; that is, to grant
ordinary franchise baronial jurisdiction out of their franchise regality jurisdiction, thereby passing
on, as it were, a slice of the slice of the royal justice granted to them. This meant that the barons
within a regality would have their own baronial courts exercising their baronial jurisdiction, while
the lord of regality would have his regality court exercising its regality jurisdiction. It was also
possible for a lord of regality to be granted regality rights over a barony he did not hold. Appeals
from regality courts went straight to parliament.
Lord Bankton, ‘An Institute of the Laws of Scotland’, II, III, 83 (part)
5. Some earldoms and feudal lordships were erected into regalities, others were not. In addition,
some ‘ordinary baronies’ were erected into regalities. This meant that there were some ‘ordinary
baronies’ which enjoyed a higher jurisdiction than some earldoms. In this sense a barony which had
been raised into a regality was higher (its jurisdiction was regal) than an earldom which had not.
6. Regalities were normally granted only to members of the royal family and to great magnates. A
number were held by the Church (e.g. the Regality of St. Andrews).
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‘Regalities, earldoms and lordships in early 15th-century Scotland’ - from Alexander Grant’s
‘Franchises North of the Border’ (available as a download at http://eprints.lancs.ac.uk/633/). The
Regality of Mordington is shown in the extreme bottom-right on the border near Berwick-upon-
Tweed, as indicated. Note that this map shows the situation before the Barony of Mordington was
incorporated into the Regality of Dalkeith in 1540. Note also that Mordington is mentioned by
name in the map of ‘Regalities about 1405’ in Edinburgh University’s ‘An Atlas of Scottish History to
1707’ (p. 207). Both these maps were produced in evidence.
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7. Following the 1745 rebellion the government attempted to strip Scottish landholders of their
influence by passing the Heritable Jurisdictions Act of 1747. This removed the power of ‘life and
limb’ from baronial courts and reduced baronial jurisdiction to the power to impose a 40 shilling
fine for various minor criminal offences. This power survived until 28th November 2004. Regality
jurisdiction was reduced to the same level as baronial jurisdiction in 1747 but in the opinion of
senior counsel the title ‘lord of regality’ survived because the Act of 1747, which must be construed
by reference to its purpose, was an Act to remove jurisdictions and not titles. This is why the office
of ‘Hereditary Sheriff’, of which Sir Crispin Agnew of Lochnaw is one (Lyon Register, Vol. 60, Folio
36), has survived. Other Hereditary Sheriffs are the Marquis of Bute (Bute) and the Duke of Atholl
(Perthshire)). For the avoidance of doubt let’s get this clear; the Lord Lyon has officially recognised
that the title of Hereditary Sheriff survived the Heritable Jurisdictions Act 1747 and it therefore
follows that the title ‘Lord of Regality’ (a royal title remember) must have survived as well.
8. Ordinary baronies could therefore either be held directly of the King or a lord of regality or, indeed,
a feudal earl or lord. Even though they held no more than ordinary baronial jurisdiction, earls and
lords of feudal lordships (e.g. the Lordship of Badenoch) could also create their own barons (by
granting them, as it were, a chunk of their own jurisdiction) who then held their baronies of the
earl or lord. As Professor Croft Dickinson has stated in the introduction to his ‘Court Book of the
Barony of Carnwath 1523-42’: 'It is clear that in certain cases the earls granted lands to be held of
them with rights of public justice, and that their "barons" regarded these rights as being derived
directly from the earl who, to them, was "regulus" if not "rex" [i.e. king].’ Regalities, on the other
hand, could only be held directly of the crown.
9. A baron was therefore generally defined as someone who held his land in chief of the king and had
the power of pit and gallows (Sir John Skene’s glossary of Scots legal terms 1597), but we have seen
(a) that the jurisdiction was attached to the land and was not held personally by the individual and
(b) that baronies could be held of earls and other magnates.
10. There are a number of other matters relating to Scottish feudal baronies (the term being used in its
widest sense to refer to ordinary baronies, feudal lordships, feudal earldoms and regalities) that are
relevant to this case, as follows:
a. A barony or regality was attached to (centred on) a ‘caput’ (Latin ‘head’) which was
normally the chief building of the barony or regality, the castle or manor place, but could
be a field, a tree, a standing stone or some other natural feature, such as the moot hill at
Scone, which was the caput of Scotland. The caput was where the baronial or regality
courts were held and was the place where the king could seek the service due from the
lands. Sometimes the caput was specified in the charter of erection (i.e. the charter which
created the barony or regality), which explains references to ‘the earldom of the castle of
x’, but more often it was not, and even where specified it appears that the location of the
caput could move, such as where, for instance, a castle fell into decay and a new manor
house was built nearby. However, care had to be taken in relation to moving a caput and
people have been known to move the hearthstone of the old caput to the new caput in an
attempt to ensure that the status of the new caput as the caput was beyond legal doubt.
b. The caput and the barony (i.e. the jurisdiction) were legally indivisible (they were
impartible hereditaments), which meant that if the caput was sold the barony went with
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the caput, unless steps were taken to reserve the barony (see above); this is the general
rule of law as confirmed by Kidson-Montgomerie of Southannan 1951 SLT (Lyon Ct) 3.
Caput and barony were also legally indestructible except by some act of the Crown, such as
an Act of Parliament. Other impartible hereditaments were the dignity (the name of baron)
and the arms (the feudal arms of the barony, not the personal arms of the baron – the
arms of the Isle of Man, quartered by the Dukes of Atholl are an example); thus the caput,
barony (jurisdiction), dignity of baron and arms were, in law, an indivisible bundle.
c. The lands of a barony, on the other hand, were partible, which meant that they could be
alienated from the barony. This meant that a baron could dispose of all the lands of a
barony but if he retained the caput or the superiority of the caput, he retained the barony
and hence the jurisdiction, as well as the title and arms.
d. Alienation of lands from a barony occurred where the lands, or a part of them, were
resigned by the baron to the king or other superior for re-grant to another person, to be
held by that person directly of the king or other superior (i.e. resignation and re-grant*).
When this happened the lands ceased to be part of the barony (the lands were disjoined
from the barony) and fell within the jurisdiction of the local sheriff court or superior’s court
as applicable. A charter of this type is known as a ‘charter by progress’. It will be
appreciated that a barony could shrink as a result of successive alienations to the caput and
however much unalienated land was left around it, which might be just a few acres.
*Often lands were resigned for re-grant to the same person. This was called ‘resignation
and confirmation’. This sort of charter was not really a ‘charter by progress’ since there was
no ‘progress’ of the lands from one person to another.
e. The other type of charter was a ‘feu charter’, where the baron granted a feu. The grantee
became the baron’s vassal and the lands remained within the barony and therefore subject
to the baronial jurisdiction. The vassal enjoyed the ‘dominium utile’ (use and possession)
and the baron enjoyed the ‘dominium directum’ (the superiority); in other words, the rights
of ownership of the superior were split in two and one part granted to the vassal. This was
the normal feudal superior/vassal relationship.
f. A barony could be conveyed without express mention, as stated by Halliday in his
‘Conveyancing Law and Practice (2nd ed., 33-49 at p. 288): ‘A conveyance of the lands
carries the barony and its bundle of rights without express mention. Conversely, a
conveyance of part of the lands does not carry the barony or, without express mention, any
additional rights associated with it. This, and indeed cases relating to territorial
designations may lead to enquiry as to where the seat of the barony (or lands) [i.e. the
caput+ lies to determine whether it has been sold or reserved.’ Therefore, if a baron
alienated half of his barony and then disposed of the rest without expressly conveying the
barony, the barony was conveyed nonetheless. This is what happened in this case.
g. Apart from in the very early days of feudalism grants of baronies were usually made by a
Crown charter granting the lands to be held by the grantee ‘in liberam baroniam’ (‘in free
barony’); grants of regalities were usually made in a similar way using the words ‘in liberam
regalitatem’ or ‘in libera regalitate’ (‘in free regality’). Sometimes the lands were
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specifically erected into a barony or regality in the charter but not always; there was no
legal requirement for a barony or regality to be specifically erected.
h. Any person examining a charter to ascertain whether it included a grant of a barony or
regality would therefore always look first for the three key words ‘in liberam baroniam’ or
‘in liberam regalitatem’ as the case may be. On this basis it is submitted that it is self-
evident that any solicitor or barrister who, claiming to be an expert in feudal law, examines
a charter containing these words and then issues a report saying that they are not present
is quite clearly negligent. It is also submitted that it is self-evident that any solicitor or
barrister who, claiming to be an expert in feudal law, actually quotes these words from a
charter in his report and then states, in the same report, that they are not present is quite
clearly negligent. This latter situation arose in this case.
i. Nonetheless, the use of the words ‘in liberam baroniam’ or ‘in liberam regalitatem’ in a
charter were not essential; what mattered was the grant of baronial or regality jurisdiction.
If baronial jurisdiction over the lands was granted then a barony was created, regardless of
the form of words used; thus the grant of the Barony of Seton in 1169 only referred to a
grant of ‘furca et fossa’ or ‘pit (fossa) and gallows (furca)’. The same principle applied to
regalities.
j. On the basis of what I have said above it is clear that all the regalities ever created in
Scotland still exist in law (or at least, since 2004, that the titles exist in law). To my
knowledge, however, there are only two possible ‘Lordships of Regality’ that appear to be
acknowledged today:
i. The first is the office of Hereditary Keeper of the Palace of Holyroodhouse,
currently held by the 15th Duke of Hamilton. It is clear that Holyroodhouse was a
regality and that the Hereditary Keepers appointed the Bailies of that regality,
something that they could only have done as lords of that regality.
ii. The second is the Lordship of Man. This regality was granted to Thomas Randolph,
1st Earl of Moray (also, interestingly, Baron of Mordington – see below) in about
1313. Although the island was permanently taken over by England in 1333, under
Scots law, of course, the regality is indestructible except by an act of the Crown –
and there has been no such act.
k. Although very important in their time, regalities are such an obscure subject that it appears
that no-one in Scotland was familiar with the law relating to them, including the senior
counsel (Sir Crispin Agnew of Lochnaw) who wrote the opinion for the defendant. Indeed,
Professor Robert Rennie, a distinguished Professor of Conveyancing Law at Glasgow
University who, I understand, helped to draft the Abolition of Feudal Tenures etc.
(Scotland) Act 2000, had not even heard of regalities until he was approached by the
defendant and he became concerned that the Act may have failed to abolish them.
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Purchase of Edrington House and report of Dr. John Robertson
(1998) 11. In 1998 my wife and I bought a house in Berwickshire, called Edrington House, and shortly
afterwards I asked a genealogist, a Dr. John Robertson, to investigate the history of the house. One
of the charters Dr. Robertson mentioned in his report referred to a grant by the Crown in 1636 of
Edrington House and its lands (then known as Nether Mordington) to be held by the grantee ‘with
right of regality’.
12. These words intrigued me (since the word ‘regality’ implied some sort of royal privilege) and I
began to research the matter. I wrote to the Clerk to the Lyon Court, who referred me to the most
authoritative writer on baronies, Professor Croft Dickinson, whose introduction to the ‘Court Book
of the Barony of Carnwath 1523-42’ confirmed that a regality was a form of barony (‘the regality
was still a barony’). I quickly concluded that since ordinary baronies had survived the 1747 Act, the
ordinary baronial jurisdiction of regalities must have survived as well, since it cannot have been the
intention of the Act to have retained the ordinary baronial jurisdiction of ordinary barons, albeit in
a much reduced form, but, at the same time, to have totally abolished the ordinary baronial
jurisdiction of lords of regality. The ordinary baronial jurisdiction of lords of regality must have
survived (as reduced by the Act); this meant, in turn, that lords of regality became ordinary barons
in 1747 (regardless of whether the title ‘lord of regality’ had survived as well). On this basis I aimed
to establish, inter alia:
a. that a regality was a form of barony (Croft Dickinson makes it clear that this was the case);
b. that lords of regality continued to enjoy ordinary baronial jurisdiction (as reduced by the
1747 Act) after 1747 (s.24 of the 1747 Act makes it clear that this was the case*);
c. that there had been a grant of a regality in 1636 and that Edrington House was the caput of
that regality (the 1636 charter is quite clear on this point, not only granting the lands to be
held ‘in libera regalitate’ but also stating that the grantee was to ‘enjoy and possess *the
lands] in all respects, just as the said earl possesses and enjoys, and his successors and
others will possess and enjoy the said lordship and regality of Dalkeith’ i.e. with the same
rights);
d. that any baronial or regality rights (including any baronial or regality title) had descended
to my wife and myself as owners of the caput (there was a clear descent of title of the
caput from 1636 to the present day).
*‘Provided always that, and it is hereby further enacted, that all and every person who shall
appear to have been lawfully possessed on the said twenty-fifth day of March one thousand
seven hundred and forty-eight, of any such justiciary, regality, or other jurisdiction hereby
abrogated, shall from and after the said twenty-fifth day of March retain such jurisdiction of
barony, or other lower jurisdiction, as such persons would have been intitled to, in case such
justiciary, regality, or other jurisdiction hereby abrogated had never been erected, granted,
or existed; such lower jurisdiction nevertheless being always subject to the regulations
hereby enacted concerning the like lower jurisdictions throughout that part of the kingdom.’
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13. It should be noted that Dr. Robertson’s report also mentioned a charter of resignation and
confirmation from the Crown in 1856 which confirmed the right of regality at that date i.e. 109
years after the passing of the Heritable Jurisdictions Act 1747.
14. As far as I can remember Dr. Robertson charged about £50 for his report.
Report of Mr. Hugh Peskett (March 2002) 15. In order to investigate this matter further I first approached a Mr. Hugh Peskett, who is widely
regarded as the world’s leading expert on Scottish feudal baronies and who is also the Scottish
Editor of Burke’s Peerage. After a considerable delay, repeated failures to reply to correspondence
and messages and, eventually, a telephone conversation in which Mr. Peskett became rather rude,
I repudiated the contract with Mr. Peskett and started proceedings in the small claims court in
England to recover a £500 deposit that I had paid to him. In the event we settled the matter by
negotiation; Mr. Peskett agreed to produce a report and I agreed to pay him accordingly.
16. Mr. Peskett produced his report in March 2002. The first thing he identified was that Edrington
House and its lands were anciently part of the Barony of Mordington, which dates back to before
the time of Robert the Bruce and, following resignation by the then baron, had been granted by
him to his companion-in-arms, Thomas Randolph, 1st Earl of Moray and Regent of Scotland after
Bruce’s death. This barony later passed by marriage to the Douglas family of Dalkeith, subsequently
Earls of Morton, and was incorporated into the Regality of Dalkeith in 1540.
17. According to Mr. Peskett’s report, in 1634 the lands of Over Mordington were granted by the then
Earl of Morton to Sir James Douglas, later 1st Lord Mordington. Apparently this charter was a feu
charter (see above) which meant that the Earl retained the superiority of the lands and hence the
barony. Mr. Peskett noted that the 1634 charter included a grant of right of regality which he said
was ‘almost an oxymoron’ since it meant that Sir James Douglas was granted right of regality
without holding the superiority. In other words, we appear to have a situation that is legally
impossible, namely a regality not being held directly of the king (see above).
18. In 1636, apparently, the remaining lands of the barony, the lands of Nether Mordington (which
later became known as Edrington House), were resigned by the Earl of Morton to the king for
regrant to a Thomas Ramsay, builder of the manor place later called Edrington House. These lands
of Nether Mordington were expressly dissolved from the Regality of Dalkeith and therefore also,
according to Mr. Peskett, from the barony. On this basis he said that I had no possible claim to the
Barony of Mordington.
19. However, Mr. Peskett noted that the 1636 charter granted the lands of Nether Mordington to be
held ‘cum jure regalitatis’ (‘with right of regality’). He concluded that if the words ‘cum jure
regalitatis’ equated to ‘in liberam regalitatem’ then a barony (regality) had been created in 1636.
He did not address the question of descent of title, which was partly why I later approached
Professor Rennie, Professor of Conveyancing Law at the University of Glasgow and a partner in
Harper MacLeod LLP.
20. Certain facts identified by Mr. Peskett are not in dispute. We know that the Barony of Mordington
was part of the Regality of Dalkeith (and was therefore in the ownership of the Earls of Morton) in
1589. We know that they no longer possessed the barony in 1642 because a grant of the Regality of
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Dalkeith at that time did not include the barony. We know that there were only two charters which
could have affected ownership of the barony in the intervening period (the charters of 1634 and
1636) and it therefore clear that the barony must have passed with one of them. The question is
‘Which one?’
21. The following points about Mr. Peskett’s report need to be noted:
a. Mr. Peskett was wrong when he said that the 1634 charter of Over Mordington was a feu
charter by which the Earl of Morton retained the superiority and therefore the barony.
Although Mr. Peskett did not examine the original wording of the charter, he did refer to
the summary of that charter contained in the Register of the Great Seal, as proved by the
reference to the Register of the Great Seal in his report*. The Register of the Great Seal
states quite clearly that Over Mordington was resigned by the Earl of Morton into the
hands of the king for re-grant to Sir James Douglas**. This means that the 1634 charter is
not a feu charter but a charter by progress (of lands ‘lying in the Barony of Mordington’),
which means that the lands of Over Mordington were dissolved from the Barony of
Mordington in 1634, which means that after 1634 the Barony of Mordington consisted
solely of the remaining lands of the barony (i.e. the lands of Nether Mordington - later
known as Edrington House), which my wife and I purchased in 1998. It was on this basis
that the Lord Lyon later recognised me as Baron of Mordington (as described below). Once
it has been identified that Over Mordington was dissolved from the barony in 1634 the
train of logic by which it becomes clear that my wife and I acquired the Barony of
Mordington when we purchased Edrington House in 1998 is simple and unavoidable.
*merely looking at the Register of the Great Seal (of which Mr. Peskett has a copy) is hardly
the ‘detailed research’ (to quote his words) that he said he would undertake when we
initially discussed the assignment.
**the word ‘resignavit’ leaps out at you from the page, as the following translation from
the Latin shows: ‘the lands and town of Over Mordington [etc., etc.] ‘lying in the Barony of
Mordington’ *i.e. what is being resigned is not the barony itself] which the said Earl, with
the consent of Robert, Lord of Dalkeith, his eldest-born legitimate son, has resigned’. This
resignation can only have been into the hands of the earl’s superior, the king.
Part of the 1634 Crown charter of Over Mordington from the Register of the Great Seal –
showing the word ‘resignavit’ (RMS, IX, 214)
b. While the 1636 charter does include the words ‘cum jure regalitatis’, it also uses the words
‘in libera regalitate’ several times, including in the critical ‘tenendas’ clause, which defines
the tenure by which the lands were to be held*. However, the summary of the charter in
the Register of the Great Seal only uses the words ‘cum jure regalitatis’. It should be noted
12
that the words ‘jure regalitatis’ are used in the 1636 charter to refer to what the Earl of
Morton held** as well as to what Thomas Ramsay was granted, so that there can be no
doubt that ‘cum jure regalitatis’ means, at least in this case, ‘with right of regality’ and not,
as Sir Crispin Agnew later claimed ‘exemption from the regality’ (i.e. the Regality of
Dalkeith). In any event, why would a charter need to exempt Nether Mordington from the
Regality of Dalkeith when those lands were expressly dissolved from that regality in that
charter?
*Sir Crispin’s draft submissions quoted the Sir Robert Dixon case (1748) Brown’s Sup V page
757, which states: ‘It was said for the decision that the most ancient way of constituting
regalities was in the tenendas clause , by saying “tenendas in libera regalitate”.’
**‘Quequidem dicte villa et terre de Nathir Mordingtoun Cum maneriej loco molendino
alijsque predictis quo ad superioritatem earundem attinet[?] unacum jure regalitatis
privilegijs et casualitatibus earundem antea pertinuerunt ad dictum predilectum nostrum
consanguineum et familiarem consiliarium Willielmum comitem de Mortoun Et ad
redilectum nostrum consanguineum Robertum dominum Dalkeith eius filium natu
maximum aut eorum quemlibet’, which translates as ‘Which said town and lands of Nether
Mordington, with the manor place, mill and others foresaid, as far as the superiority
thereof is concerned, together with the right of regality, privileges and casualties thereof,
pertained formerly to our said beloved cousin and familiar counsellor, William, earl of
Morton, and to our beloved cousin, Robert, lord Dalkeith, his eldest son, or either of them’.
c. The holding of a regality otherwise than directly from the Crown was not ‘almost an
oxymoron’, as Mr. Peskett said, it was a downright legal impossibility. It would have led to a
situation where a lord of regality (Sir James Douglas) held of an ordinary baron (The Earl of
Morton as Baron of Mordington).
d. Mr. Peskett noted that ‘an undated charter of Robert III (1390-1406) has not survived but is
recorded by its confirmation in 1470, granted to James Douglas, Lord Dalkeith, baroniam de
Mordintoun and other baronies in free regality.’ This means that the Barony of Mordington
was a regality long before regality rights were granted over Nether Mordington in 1636,
which means, in turn, that if the Barony of Mordington passed to Thomas Ramsay in 1636
when he acquired Nether Mordington then he acquired regality rights as a result and any
new grant of regality rights at that time was superfluous . This is because when a barony is
dissolved from a regality (in this case the Barony of Mordington being dissolved from the
Regality of Dalkeith) the barony reverts to what it was before it was incorporated into the
regality, which, in the case of the Barony of Mordington, was a regality; that is, a barony
held in regality. In essence therefore the grant of regality rights in 1636 was not a new
grant of regality rights but a (strictly unnecessary) confirmation of regality rights held from
the time of Robert III (1390-1406). It follows that even if the 1636 charter was somehow
ineffective in creating a new regality, this did not matter because the lands were already a
regality and had been for over 200 years.
e. Mr. Peskett’s report makes it quite clear that his understanding of what I was looking to
identify was whether there was any form of baronial title attached to my property, not just
whether there was a barony arising out of a former regality (which would exclude any
13
ordinary barony that had never been a regality) and certainly not that I was only interested
in a barony called the ‘Barony of Nether Mordington’ to the exclusion of any barony by any
other name, which preposterous suggestions were argued in court by the claimant.
22. Shortly after Mr. Peskett had submitted his report I sent him the full texts of the 1634 and 1636
charters. These made it quite clear:
a. that in 1634 the lands of Over Mordington had been resigned into the hands of the king;
b. that the 1636 charter granted the lands of Nether Mordington to be held ‘in libera
regalitate’.
In spite of this Mr. Peskett replied that ‘the translation of the 1634 sasine *which includes the text
of the charter+ confirms exactly what I said in my report about it’.
23. There is, in my view, no reasonable possibility that someone of Mr. Peskett’s expertise and
experience could have accidentally overlooked the word ‘resignavit’ in the 1634 charter (the
summary of which in the Register of the Great Seal is very short). There is, in my view, no
reasonable possibility that someone of Mr. Peskett’s expertise and experience could have failed to
have been put on enquiry by the utterly illogical and legally impossible idea that someone could
hold a regality otherwise than directly from the Crown; indeed, that a regality could be held of a
baron. Furthermore, and more significantly, Mr. Peskett continued to assert that the 1634 charter
was a feu charter by which the Earl of Morton retained the Barony of Mordington after it had
become quite clear that this was most definitely not the case; it was ‘there in black and white’.
There can therefore be no other conclusion than that Mr. Peskett, the world’s leading authority on
Scottish feudal baronies, deliberately misled me in his original report and that when given an
opportunity to correct his mis-statements he declined to do so. There is no question that he lied to
me, though it took me some time to realize this fact. The only thing that I can think might account
for this conduct is that he was trying to ‘get his own back’ for our initial disagreement. No
reasonable person could, I believe, come to any other conclusion; the evidence is damning.
24. Mr. Peskett’s conduct is relevant to later developments in this case because I believe that it was an
unwillingness on the part of Sir Crispin Agnew of Lochnaw and Mr. Roy Shearer of Lindsays (they all
know each other) to ‘lay bare’ Mr. Peskett’s deception that governed their behaviour. I had not
woken up to the deception at the time and they only woke up to it when I pointed out to them that
the 1634 charter was not a feu charter as Mr. Peskett had claimed. It should be noted that Sheriff
MacKinnon refused me permission to introduce into court as evidence a document that
contradicted Mr. Shearer’s assertion (made in court and under oath) that he did not know Mr.
Peskett, even though he (Sheriff MacKinnon) had already allowed Mr. Shearer to introduce into
court without notice documents to support his arguments, as described below. Sheriff MacKinnon
could see the way I was heading.
25. Mr. Peskett charged £500 for his report.
Petition to the Lord Lyon (May 2002)
26. In May 2002 I submitted a petition to the Lord Lyon for a grant of arms with baronial additaments,
the normal method of obtaining recognition as a Scottish feudal baron. My petition was based on
14
the proposition that a regality had been granted in 1636, that this regality had survived the
Heritable Jurisdictions Act 1747 as an ordinary barony and that this ordinary barony had
subsequently passed to my wife and myself when we bought Edrington House in 1998; the old
Barony of Mordington formed no basis of the petition.
27. The Lord Lyon’s response in relation to baronial recognition (as opposed to the grant of arms) was
extremely negative, even to the extent of saying that the 1636 charter could not possibly have
granted a barony because it did not include the words ‘in liberam baroniam’. As I have pointed out
above, these words are not necessary; what matters is not the form of words used but whether the
grantee acquired baronial jurisdiction (since the jurisdiction was the barony). For what it is worth, I
eventually came to the conclusion that the Lord Lyon was not malicious, merely that his knowledge
of the law in this area was rather limited (an opinion that was confirmed by other experts in the
field).
28. The Lyon Clerk, Mrs. Roads, was also extremely negative and even took it upon herself to express
the opinion that I did not have any claim to ownership of a barony. Mrs. Roads argued that I
possessed only a small fraction of the lands of Nether Mordington (but including the principal
residence of course) and that since there is a ‘general acceptance that the baron possesses the
greater part of the lands’ any claim to be Baron of Nether Mordington in the absence of possession
of the greater part of the lands ‘would not be considered’. However, as I have pointed out above,
this is not true; it is possession of the caput that matters and a baron can dispose of the whole of
the lands of a barony and still retain the barony if he retains, as a minimum, the superiority of the
caput. Professor Croft Dickinson, to whom Mrs. Roads had referred me, makes this specific point.
Mrs Roads said that she considered that I had ‘no case’.
29. Mrs. Roads cannot have been unaware that, during her own tenure of office, a number of baronies
have been recognised on the basis of ownership of very small parcels of land which were mere
fractions of the original baronies; in fact, as Sir Crispin Agnew stated in his opinion (see below), this
was what normally happened when a land-owner sold a barony; he sold the caput (sometimes the
original caput but often a cottage or similar building that the landowner re-designated as the
caput) and a few acres of land around it.
30. On the basis that Mrs. Roads had quite clearly lied to me I complained about her conduct to the
Scottish Executive Justice Department but they fobbed me off with lazy evasions.
31. My petition effectively stalled at that point.
Opinion of Professor Robert Rennie (December 2002 to August
2003) 32. In view of the Lord Lyon’s attitude I approached Professor Robert Rennie, Professor of
Conveyancing Law at the University of Glasgow and a partner in Harper MacLeod LLP; I did this in
December 2002. As I confirmed later to him on 31st March 2003 ‘It seems to me (and, as always, I
am happy to be corrected) that there are two aspects to the question, namely, whether a barony
exists and, if so, who owns it. I am satisfied (as far as I can be) that a barony exists, it is on the
second question that I have approached you for an opinion, since it appears to me to be a pure
conveyancing question.’
15
33. Professor Rennie agreed to prepare a report but it took endless diplomatic prompting from me
over many months to get him to do so (it took him 9 months to produce his report). During this
period Professor Rennie accidentally forwarded to me a copy of an E-Mail to him from another
professor of law with whom he had consulted in the matter (a Professor Gordon) which made it
clear that they regarded my request for an opinion with disdain and some hilarity; the other
professor referred to my barony as a ‘barony of the nether regions’ (i.e. backside).
34. Professor Rennie issued his report in August 2003. He stated that ‘I do not think there is any doubt
that the lands of Nether Mordington were erected into a regality by the charter of 1636’ and, on
the assumption that a regality was a form of barony and that the barony survived the Heritable
Jurisdictions Act 1747 (see above), and having traced the descent of title, he concluded that that
barony was conveyed to my wife and myself in 1998.
35. Note that Professor Rennie addressed the issue of a barony arising out of a regality created in 1636
and not the question of what happened to the Barony of Mordington, which, on the basis of Mr.
Peskett’s report, did not appear to be relevant. However, his report on descent of title since 1636
applies equally in either case since any barony attached to Edrington House in 1636 would have
descended to the defendant and his wife in 1998 by the same route.
36. Professor Rennie charged £1500 for his report.
Draft submission of Sir Crispin Agnew of Lochnaw (October 2003)
37. Following on from Professor Rennie’s report I wanted some advice as how best to proceed with the
process of obtaining recognition as a baron, so I asked Mr. Shearer of Lindsays to ask Sir Crispin
Agnew of Lochnaw, senior counsel, for advice. I did this is September 2003.
38. In October 2003 Sir Crispin produced a draft of a submission to the Lord Lyon. This summarised the
arguments that Sir Crispin proposed to put to the Lord Lyon to the effect that I was the owner of a
barony arising out of a regality granted in 1636.
39. Broadly speaking, Sir Crispin’s arguments followed my own as outlined above, namely:
a. that a regality was a form of barony;
b. that lords of regality continued to enjoy ordinary baronial jurisdiction after the passing of
the Heritable Jurisdictions Act 1747 and that the title ‘Lord of Regality’ had survived that
Act;
c. that there had been a grant of a regality in 1636;
d. that a barony had descended to my wife and myself as owners of the caput (Sir Crispin
relied on Professor Rennie’s opinion in this regard).
40. Sir Crispin noted however:
Act of Parliament of 1455
a. that an Act of Parliament of 1455 had decreed that no further grants of regalities were to
be made without the consent of Parliament and that, in the absence of such ratification,
16
prescriptive exercise of regality jurisdiction had to be proved. However:
i. although SIr Crispin had read Mr. Peskett’s report he did not seem to have noticed
that the Barony of Mordington had been held in regality since before 1406 (since
1381/2 in fact), as noted above, so that the grant of regality rights in 1636 was not
a grant of a new (post-1455) regality. These pre-existing regality rights would have
passed in 1636 without express mention (i.e. sub silentio) in any event, in exactly
the same way the Barony of Mordington passed sub silentio, as confirmed by the
Lord Lyon’s later recognition of me as baron, as described below.
ii. as Sir Crispin himself argued earlier in the same document in relation to the
Heritable Jurisdictions Act 1747 (see above), an act must be construed with
reference to its purpose (and certainly where there is any doubt about the
interpretation of the words of an act). The purpose of the 1455 act was to prevent
further alienation of crown property, rights and privileges and a grant of regality
rights in respect of Nether Mordington in 1636 was not a further alienation since
those lands were already within a regality; in other words, there was no net loss to
the Crown as a result of the 1636 charter so the 1455 Act did not apply. This
argument would have applied even if the Barony of Mordington had not already
been a regality in its own right dating from before 1406 because the barony was
within the larger Regality of Dalkeith in any event. Sir Crispin failed to apply his own
argument, which he had advanced in the very same document.
iii. Sir Crispin noted that regalities continued to be granted without Parliament’s
consent after the Act and subsequently ratified by Parliament. This raises an
interesting question of whether, where Parliament ratifies actions that are against
its own laws (which, if supreme, it must have the power to do), it is a necessary
consequence that the law in question is deemed to have fallen into desuetude;
after all, if Parliament passes a law that contradicts an earlier law, the later law
takes precedence. In this context it is worth noting (though Sir Crispin seems to
have overlooked the point for some unknown reason) that Scots law operates
differently in relation to pre-Union statutes, which do not necessarily require
repeal to render them inoperable. It is in fact a crime in Scots law to play football
or commit adultery, but no-one has been indicted for these ‘crimes’ for a very long
period because these laws are held to have fallen into desuetude (disuse).
‘Cum jure regalitatis’
b. that there was authority for the proposition that the words ‘cum jure regalitatis’ were
intended to infer exemption from the jurisdiction of an existing regality rather than a grant
of a regality and that this matter would require further investigation. Sir Crispin did not
attempt to explain why, if only an exemption from the Regality of Dalkeith was intended in
the 1636 charter, that charter:
i. stated that the grantee was to ‘enjoy and possess [the lands] in all respects [my
emphasis], just as the said earl possesses and enjoys, and his successors and others
will possess and enjoy the said lordship and regality of Dalkeith’ i.e. with the same
17
rights, including right of regality.
ii. stated in the tenendas clause that the lands were to be held ‘in libera regalitate’,
given that Sir Crispin himself had cited authority to the effect that ‘the most
ancient way of constituting regalities was in the tenendas clause , by saying
“tenendas in libera regalitate”.’
iii. used the words ‘jure regalitatis’ to refer to what the Earl of Morton held as well as
to what Thomas Ramsay was granted, as stated above, so that there can be no
doubt that ‘cum jure regalitatis’ means, at least in this particular charter, ‘with right
of regality’ and not ‘exemption from the regality’ (i.e. the Regality of Dalkeith).
In the face of this overwhelming evidence it is difficult to conceive that anyone could even
think of trying to argue that there was no intention to grant a regality in the 1636 charter,
independent of the question of whether that charter was sufficient in law to put that
intention into effect.
Opinion of Sir Crispin Agnew of Lochnaw (January 2004) 41. Having read Sir Crispin’s draft submission I decided that what I wanted from him was a
straightforward opinion as to whether I owned a barony or regality (which was a slightly different
thing from the draft submission i.e. he could put forward arguments to support a view he did not
hold). I made this decision because, given the Lord Lyon’s attitude (as explained above), I
considered it likely that I would need to petition the Court of Session for a declarator of entitlement
to a barony or regality rather than petition the Lord Lyon for a grant of arms with baronial
additaments. I intended to use Sir Crispin Agnew’s opinion to support a petition to the Court of
Session, if such a course of action became necessary.
42. I therefore sent by E-Mail to Mr. Shearer of LIndsays a letter of instruction asking him to ask Sir
Crispin to prepare an opinion. I asked Sir Crispin to prepare an opinion (a) as to ‘whether a barony
and/or regality of Nether Mordington exists’ and (b) ‘whether I own that barony’. I specifically
stated in this letter of instruction that ‘my objective is to establish ownership of some form of
barony [my emphasis] by the quickest and least expensive means’.
43. It is, I submit (and as I argued in court), quite clear that the words ‘some form of barony’ mean ‘any
form of barony’ (since nothing is excluded by the words ‘some form of barony’) and that the words
‘barony and/or regality of Nether Mordington’ therefore mean ‘any form of barony or regality
attached to (i.e. of) the property called Nether Mordington (i.e. Edrington House)’ and not ‘a
barony called the ‘Barony/Regality of Nether Mordington’ and no other name. Indeed, a request to
identify ownership of a barony with a specific name to the exclusion of all other possible names is
such a nonsensical thing (why would someone not be interested in knowing that they owned a
barony with some other name?) that even had Mr. Shearer believed that I was making such a
request he would have been duty bound to seek confirmation and clarification of that request. This
he did not do.
Summary of opinion
44. Sir Crispin’s opinion repeated the main arguments of his previous draft submission, namely that a
18
regality was a higher form of barony and that the baronial jurisdiction of lords of regality had
survived the passing the Heritable Jurisdictions Act 1747.
45. With regard to the phrase ‘cum jure regalitatis’ Sir Crispin cited authority (including various claims
for compensation for loss of regality rights in 1747) to the effect that such a grant was understood
to import no more than an exemption from the lord of regality’s jurisdiction. In other words, there
was no intention to grant a regality in 1636.
46. He also cited authority to the effect that any new grant of a regality had to be signed personally by
the king and that the signature of the barons of the exchequer was not sufficient in such
circumstances (although he never actually checked who did sign the original charter). In other
words, even if there was an intention to grant a regality in 1636, that charter was not effective in
law to achieve that intention.
47. Sir Crispin was therefore saying that not only was there no intention to grant a regality in 1636 but
even if there had been, that grant would have been ineffective in law to achieve that intention (one
begins to wonder at the competence of the law officers of the Crown, including the Barons of the
Exchequer, at the time). On this basis he concluded that a court would hold that I did not have a
claim to a barony arising out of a regality.
48. On the question of the descent of title, Sir Crispin agreed with Professor Rennie that had a barony
been granted or conveyed by the 1636 charter then that barony would have passed to my wife and
myself in 1998. Sir Crispin reached this conclusion on the basis that where the caput of a barony is
disposed of the barony passes with the caput unless steps are taken to reserve it.
49. With respect to Sir Crispin’s detailed arguments I would make the following points:
Signature by the king
a. With regard to his argument that grants of new regalities had to be signed personally by
the king (because a subject, even a lord of regality, could not create a lord of regality and
because the Barons of the Exchequer, who signed most Crown charters, could give no more
than was resigned to them), Sir Crispin completely overlooked the fact (stated quite clearly
in Mr. Peskett’s report) that the Barony of Mordington had been held in regality since
before 1406 (since 1381/2 in fact) and that there was therefore no grant of a new regality
in 1636, as stated above, given that what was ‘unbundled’ from the Regality of Dalkeith in
1636 can only have been what was incorporated into the Regality of Dalkeith in 1540,
namely the Barony of Mordington held in regality. As Professor Croft Dickinson stated quite
clearly, a barony retained its separate identity even when it fell into the hands of the king:
‘undoubtedly both the regality and the earldom, like the ‘honour’ in England, might at
times be a ‘bundle’ of jurisdictions; and if baronies were included therein, each would,
being indestructible, retain its own identity, whilst it might even retain its separate court.’
b. Furthermore, if Sir Crispin is right in saying that the 1636 charter should have been signed
by the King, why was this argument not put forward by the Crown against the claim made
in 1747 for loss of regality rights in respect of Nether Mordington/Edrington House? This
would have disposed of the claim very quickly. The fact that the Lord Advocate did not put
forward this argument strongly suggests that he did not consider it to be valid.
19
c. Furthermore, Sir Crispin argued that the King could not have signed the 1636 charter
because he was not in Scotland at the time but In 1747 William Maxwell of Nithsdale made
a successful claim for compensation for loss of regality rights with respect to the regality of
Terreagles and Kirkgunzeon based on a grant of 26th February 1635. Now, if Sir Crispin
Agnew is right in stating, as he did in his opinion, that the king ‘was only in Scotland during
1633 for his coronation and did not return until much later in his reign’ (and evidently not
until after 1636, the date of the Nether Mordington charter), then the charter of 1635
cannot have been signed by the king. So why did William Maxwell receive compensation?
Why did the Lord Advocate not raise this objection? Perhaps there is a good explanation,
perhaps not. This question would have occurred to Sir Crispin had he examined the
compensation claims properly, as Dr. Robertson did on my behalf (and in order to check up
on Sir Crispin).
‘Cum jure regalitatis’
d. As with his draft submission of October 2003, Sir Crispin did not attempt to explain why, if
only an exemption from the Regality of Dalkeith was intended in the 1636 charter, that
charter:
i. stated that the grantee was to ‘enjoy and possess *the lands+ in all respects [my
emphasis], just as the said earl possesses and enjoys, and his successors and others
will possess and enjoy the said lordship and regality of Dalkeith’ i.e. with the same
rights, including right of regality.
ii. stated in the tenendas clause that the lands were to be held ‘in libera regalitate’,
given that Sir Crispin himself had cited authority to the effect that ‘the most
ancient way of constituting regalities was in the tenendas clause , by saying
“tenendas in libera regalitate”.’
iii. used the words ‘jure regalitatis’ to refer to what the Earl of Morton held as well as
to what Thomas Ramsay was granted, as stated above, so that there can be no
doubt that ‘cum jure regalitatis’ means, at least in this particular charter, ‘with right
of regality’ and not ‘exemption from the regality’ (i.e. the Regality of Dalkeith).
e. The assertion that the words ‘cum jure regalitatis’ were only intended to infer an
exemption from a regality was based on the idea, according to one of the authorities Sir
Crispin cited (the Lord Morton case), that the phrase ‘cum molendinis et multuris’ in a
charter was only intended to infer an exemption from the requirement for a vassal to have
their corn ground at their superior’s mill – but this begs the question ‘If a vassal did not
have to get their corn ground at their superior’s mill, where did they have it ground?’ The
answer is that they must have been allowed to build their own mill, which means that the
phrase not only inferred an exemption from the requirement for the tenant to have his
corn ground at his superior’s mill, it must also have inferred a right for the tenant to build
his own mill. The exemption is useless without the complementary right to build one’s own
mill. So the reasoning put forward in the authority cited by Sir Crispin is demonstrable
nonsense; the phrase ‘cum molendinis et multuris’ actually means exactly what common
sense and plain English tells us it means i.e. with the right to build a mill (which, of course,
20
necessarily implies an exemption – so that the phrase does imply an exemption). This line
of thought evidently did not occur to Sir Crispin.
f. This, in turn, begs the question of why this argument concerning the phrase ‘cum jure
regalitatis’, if it is so obviously wrong, was put forward by the Crown against the various
claims for compensation for loss of regality rights after 1747. The answer is quite simple;
the law officers of the Crown were trying to save money so they advanced this specious
argument in an attempt, successful as it turned out, to deny compensation to the less
important claimants. The reality of the situation (as revealed by analysing the claims
themselves) was that the rich and powerful tended to get compensation, even where their
claims were dubious whereas the small fry tended to get sent away with a flea in their ear
(one claim for compensation, by William Dickson of Kilbucho, was rejected even though the
grant of regality had been ratified by Parliament). Such were the realities of life in
eighteenth century Scotland; the ‘cum jure regalitatis’ wheeze was a convenient scam
dreamt up ‘on the fly’.
g. In an E-Mail of 6 April 2004 I drew Sir Crispin’s attention to a crown charter of 1641 (and
there is another one of 1642 ) by which the Regality of Dalkeith was granted to the Earl of
Buccleuch using the words ‘cum jure regalitatis’. Since this was unquestionably a grant of a
regality this charter proves beyond question that the words ‘cum jure regalitatis’ could
mean ‘with right of regality’ and not ‘exemption from the jurisdiction of a regality’. Even if
there were circumstances where the phrase was used to grant an exemption from a
regality (which I do not believe was the case), it had become clear that this was not always
the case; sometimes, at least, the words were used to refer to right of regality. This means
that each charter must be considered on its merits.
h. Furthermore, Dr. John Robertson noted a claim (Falconer of Monkton) which was rejected
on the same basis that the claim in respect of Nether Mordington/Edrington was rejected
but where the claimant had been granted power to appoint court officers*. As Dr.
Robertson noted: ‘this is not exemption from someone else's jurisdiction’. In the same
letter he said: ‘Incidentally, there is a sasine of one of my alleged ancestors of 1628 in
which he was granted land 'cum nona petia multurarum', the other 8 parts of the multures
being reserved to John, Earl of Lauderdale, and it is unambiguous that that is not
exemption but an actual grant of the value of one ninth of the collected multures.’
*‘By Charter under the Great Seal dated 20.9.1702 proceeding on resignation of John, Earl
of Lauderdale with consent of Sir Robert Dickson of Inveresk, & sasine following, the
deceased Patrick Falconer of Monkton, the claimant's father, was vested in named lands
that had been parts of the regality of Musselburgh ... ac cum potestate dicto magistro
Patricio Falconer ejusque predict. facere et creare Balivos Justiciara[?] Deputatos Clericos
Serjandos Adjudicatores aliosque Officiarios curiae ... and to do all other things & enjoy all
privileges which pertain to any other free regality within this kingdom’
‘In libera regalitate’
i. At the same time that he argued that the words ‘cum jure regalitatis’ only implied
exemption from a regality, Sir Crispin ignored the fact that the tenendas clause of the 1636
21
charter contains the three key words ‘in libera regalitate’, which he himself had previously
acknowledged, on the basis of authority, were the words used to grant regalities. Not only
did Sir Crispin ignore these words but he said they weren’t in the charter at all, and he did
this in spite of the fact that he actually quoted the tenendas clause of the charter in his
opinion, in both Latin and English. In my view this was such a serious error of fact that it
invalidated his entire opinion.
j. It is important to realize that the reason why Sir Crispin said that the words’ in libera
regalitate’ were not in the 1636 charter was because he relied on Mr. Peskett’s report
and Mr. Peskett had only referred to the summary of the 1636 charter in the Register of
the Great Seal, which did not mention the words ‘in libera regalitate’. Initially Sir Crispin
simply repeated Mr. Peskett’s ‘mistake’ (in spite of the fact that he actually quoted in his
opinion the tenendas clause of the 1636 charter which quite clearly uses the words ‘in
libera regalitate’). It was, I believe, only later, after I pointed out to Sir Crispin not only
that the 1636 charter did contain these words but also that the 1634 charter was not a
feu charter, as Mr. Peskett had claimed, that Sir Crispin realized that if he acknowledged
that Mr. Peskett had ‘made an error’, he (Sir Crispin) would open the way for me to sue
Mr. Peskett for negligence and that I might actually use his (Sir Crispin’s) written opinion
against Mr. Peskett in court; this would be damning evidence indeed. Of course the
damage to Mr. Peskett’s reputation would be far worse if it came out that Mr. Peskett
had not just made a mistake but had deliberately misled me. Sir Crispin was therefore
caught between a rock and a hard place; on the one hand he owed a clear, if indirect,
duty to me via Lindsays; on the other he faced the prospect of being the cause of ruining
Mr. Peskett’s reputation. Once this is understood, Sir Crispin’s and Mr. Shearer’s conduct
is easily explained, including the fact that Lindsays waited 6 years before taking me to
court, because this meant that the limitation period for me to take legal action against
Mr. Peskett had expired. It all falls into place.
Claim for compensation in 1747
k. Sir Crispin stated that no claim for compensation for loss of regality rights with respect to
Nether Mordington had been made in 1747. He said that this suggested that the proprietor
of the time ‘did not consider that *he+ had a claim for loss of jurisdiction’. This was wrong
(another failing on Sir Crispin’s part). Such a claim was made and was dismissed by the
Court of Session on the grounds that the phrase ‘cum jure regalitatis’ inferred no more
than an exemption from the jurisdiction of a regality. While the decision of the Court of
Session is binding on lower courts, it is, for the reasons stated above, quite clearly wrong.
In general it is also clear that the Court of Session is not infallible and that, like any other
court, it can and does make wrong decisions and that there must be a mechanism for these
decisions to be challenged and overruled. One cannot simply say ‘Oh well, the Court of
Session has said x and that is the end of the matter’, the matter must be considered on its
merits and if the Court of Session was wrong in 1747 then its decision must be over-ruled.
This is a basic principle of justice.
22
Descent of title
l. Sir Crispin’s reliance on Professor Rennie’s opinion in relation to descent of title is in clear
breach of my letter of instruction in which I asked him to form his own view on the matter,
as stated above. Sir Crispin stated that he did not have ‘a full progress of title’ (i.e. all the
charters, dispositions etc.) but I had specifically authorised Mr. Shearer to uplift these
documents from the Lyon Court. At the very least Mr. Shearer should have picked up on
this point when he first read the opinion and resolved the matter by ensuring that Sir
Crispin was provided with these documents. This he did not do.
Act of Parliament of 1455
m. Sir Crispin did not mention the Act of 1455 in his opinion but, as with his draft submissions,
he overlooked the fact that grants of regality had been made and ratified by Parliament
after the 1455 Act prohibiting the creation of new regalities and that this meant that the
1455 Act had fallen into desuetude, according to the law of Scotland.
n. Again, as with his draft submissions, Sir Crispin overlooked the fact (although it was stated
quite clearly in Mr. Peskett’s report) that the Barony of Mordington had been held in
regality since before 1406 (since 1381/2 in fact), so that even if the Act of 1455 was still
valid in 1636 (had not fallen into desuetude) it would not have applied because Mordington
was a pre-1455 regality.
Charter of 1856
o. Sir Crispin made no mention of a charter of resignation and confirmation from the Crown in
1856 which confirmed the right of regality at that date (i.e. 109 years after the passing of
the Heritable Jurisdictions Act 1747), even though he had read Professor Rennie’s opinion
which mentioned this charter. The question is ‘Was this charter effective in creating a
regality or wasn’t it?’ (given that a resignation and confirmation is, in fact, a resignation and
re-grant, because if something is resigned it must be re-granted). If it was then all other
arguments about the wording of earlier charters or the use of signatures are completely
irrelevant and Sir Crispin would have been ‘barking up the wrong tree’ (even ignoring the
whole Barony of Mordington question). This was an extraordinary oversight. Although
Professor Rennie had expressed doubt as to whether the Crown could create a regality in
1856 (but without giving reasons for his doubt) it is clear that the Crown still had the power
to create baronies in 1856 - and if the Crown could create a barony in 1856 it could also
create a regality (which, by then, had the same jurisdiction as a barony). This is particularly
the case if, as Sir Crispin himself argued, the title ‘lord of regality’ had not been abolished in
1747 and therefore still existed in law in 1856. The creation of a regality with ordinary
baronial jurisdiction (as reduced by the Act) was not contrary to the 1747 Act and so was
effective in law because that Act only prohibited the creation of jurisdictions contrary to
the true intent and meaning of the Act.
Conclusion not in terms of letter of instruction
p. Sir Crispin concluded that ‘I am therefore of the opinion that any court is likely to hold that
23
the 1636 charter was not habile to grant or create a Lordship of Regality…’, but in my letter
of instruction I did not ask for Sir Crispin’s opinion on what a court would say, I asked for
his opinion on whether I owned a barony. Sir Crispin failed to frame his conclusion in terms
of my letter of instruction.
q. On page 8 of his report Sir Crispin says ‘this is a preliminary opinion’. It is clear that a
preliminary opinion is not an opinion; it is an opinion which is subject to further work. Sir
Crispin agreed to carry out whatever work was necessary to form an opinion. This he
plainly did not do.
Correspondence following Sir Crispin Agnew’s opinion of January
2004 50. On the basis of what I have said above it is clear that I had very serious concerns about Sir Crispin’s
opinion. More than this it was clear that his opinion contained a critical error of fact in that he said
that the key words ‘in libera regalitate’ were not in the 1636 charter when they were; and not only
were these words in the charter but Sir Crispin actually quoted the relevant clause in the charter
which included these words (in both Latin and English) and then said they weren’t in the charter 3
pages later.
51. I raised my concerns with Mr. Shearer of Lindsays by E-Mail. Without going into the
correspondence in detail Mr. Shearer basically tried to answer my questions on Sir Crispin’s behalf
(partly by conjecturing what he thought Sir Crispin meant in certain cases), which was something
that he was clearly not qualified to do given that he had no knowledge of regalities whatsoever. In
a letter dated 18 January 2004 I wrote ‘I would be grateful if Sir Crispin could respond, in his own
words, to the points I have raised.’ In a letter dated 28 January 2004 Mr. Shearer replied to my
various questions and concluded ‘I am very conscious that whatever I may say, I am simply giving
my view of what Sir Crispin has said. *…+ I think he is likely to defend his opinion along the lines I
have sought to do so.’ In other words, Mr. Shearer refused to put my questions to Sir Crispin and
attempted to answer them himself when he was clearly unqualified to do so – a clear breach of his
professional duty.
52. On 30 March 2004 I wrote by E-Mail to Mr. Shearer pointing out that the lands of Over Mordington
were resigned into the hands of the king in 1634 for re-grant to Sir James Douglas. I wrote that this
must have meant that these lands of Over Mordington were dissolved from the Barony of
Mordington at that time, that this meant that after 1634 the Barony of Mordington had consisted
solely of the lands of Nether Mordington and this meant that when Nether Mordington was
granted to Thomas Ramsay in 1636 he must have acquired the Barony of Mordington at the same
time, because, in accordance with Halliday’s dictum (see above), the barony passed ‘sub silentio’
even though not mentioned in the 1636 charter.
53. After I had sent several reminders to Mr. Shearer I received an ‘invoice’ directly from Sir Crispin for
work done to date. I declined to pay this invoice on the basis:
a. that the ‘invoice’ was a statement and not a proper invoice;
b. that Sir Crispin was not working for me but for Lindsays, and that he should therefore have
24
invoiced them and not me;
c. that I had not agreed to make payments on account.
I stated that I was quite prepared to pay the agreed sum when I received the agreed deliverable but
that, as far as I was concerned, I had not received the agreed deliverable. I asked that Sir Crispin
should prepare an amended opinion (not an additional opinion) which satisfactorily addressed my
various points, including correction of the critical error of fact about the words ‘in libera regalitate’
in the 1636 charter; in other words, that he would prepare a new opinion to replace his first
opinion.
54. It is my view that it was at this point that Sir Crispin and Mr. Shearer realised that this matter could
become the subject of a dispute and they therefore tried to extract as much money from me as
they could before this happened. It is also my view that it was at this time, and as a result of my E-
Mails concerning the 1634 charter referred to above, that they realised that Mr. Peskett had, at the
very least, made a very serious error concerning the 1634 charter in his report, that this laid him
open to an action for damages that might seriously damage his reputation and that any statement
by either Sir Crispin or Mr. Shearer that recognised that Mr. Peskett was wrong in this respect
might be used against him in court. I believe that this is why Sir Crispin steadfastly refused to look
into the 1634 charter.
Sir Crispin Agnew’s second opinion (May 2004)
55. On 24 May 2004 Sir Crispin produced what he called ‘Opinion of Senior Counsel (No. 2)’. This was
not a replacement opinion but merely a document which attempted to deal with some of the
points I had raised about his original opinion. It was my view that even if this document dealt with
my points adequately, it, taken together with the first opinion, did not constitute ‘an opinion’ in the
way that phrase is normally understood. An opinion is a single document which contains a
description of the relevant facts, arguments backed by authorities and a conclusion in the form of
an opinion. What I had was two documents, the first of which contained a critical error of fact,
serious inconsistencies, assertions not backed by authority and which did not address all the issues
I had originally asked to be addressed; the second of which contained various explanations of the
inadequacies of the first. Thus, if I had wanted to refer another party to this ‘opinion’ I would, for
instance, have had to have explained that the first document contained a critical error of fact at
page so and so but that this was explained in the second document at page so and so. This is highly
unsatisfactory and completely unacceptable from any professional, and especially from Senior
Counsel. Mr. Shearer should not have accepted this document from Sir Crispin and he failed in his
duty to me by doing so.
56. With regard to the words ‘in libera regalitate’ in the tenendas clause, Sir Crispin stated that the
‘issue was perhaps which is the governing phrase of that clause. I take it to be the first appearance
of the relevant words…’ (This is an outright lie of course. Sir Crispin said that the words were not
even in the charter, so how can he refer to the position of non-existent words in relation to other
words?)
57. Furthermore, in the first place, to say ‘perhaps’ does not amount to an opinion; in the second
place, Sir Crispin’s statement that he took the governing phrase to be the ‘first appearance of the
25
relevant words’ was simply an unsupported assertion, which he later refused to justify by reference
to authority in spite of the fact that I specifically asked him to do so; in the third place, he did not
resolve the issue that his first opinion still contained a critical contradiction in that he quoted the
words ‘in libera regalitate’ in the tenendas clause of the 1636 charter and then said, 3 pages later,
that the words weren’t in the charter. Sir Crispin was clearly refusing to acknowledge that he had
made any form of mistake and I regarded his statement as mere evasion.
58. With regard to the 1634 charter Sir Crispin said that he said that ‘I note the comments in the e-
mails of 3 & 4 April 2004 and agree that it could be argued that the Barony of Mordington came
with the 1636 charter. However copies and translations of the relevant conveyances at the time
will be required and I have not seen all of them so cannot comment. I do not have full text of the
charter to Sir James Douglas but I would be surprised if Hugh Peskett misconstrued the charter.’
59. I sent the full translated text of the 1634 charter (which was all that was required to enable Sir
Crispin to conclude that Mr. Peskett had made a serious error) to Mr. Shearer on 30 March 2004
and asked him to forward it on to Sir Crispin. In any event, since the text of that charter was clearly
so important and given that I had specifically raised serious questions about that charter all Sir
Crispin had to do was to ask to have sight of it before preparing his second opinion. Why, in these
days of instant communications, did he fail to do this? To write an opinion which says ‘I cannot
comment’ in such circumstances is quite simply preposterous.
60. Sir Crispin addressed various other issues I had raised but the two mentioned above were the most
important. I submit that these two examples are sufficient to demonstrate that Sir Crispin failed to
satisfactorily resolve the main issues in his second opinion.
61. Sir Crispin demanded a further £1,250 for preparing his second opinion.
62. On 27 May 2004 I wrote to Mr. Shearer about Sir Crispin’s second opinion. Among other issues I
asked him to ask Sir Crispin to examine the 1634 charter (which, of course, I had already sent to Mr.
Shearer some months before and asked him to forward to Sir Crispin at that time) and give his
opinion as to whether the Earl of Morton had retained the superiority of Over Mordington at that
time. I stated, amongst other things, my view that Sir Crispin should have been put on enquiry by
Mr. Peskett’s description of Sir James Douglas holding a regality without holding the superiority (i.e.
holding as a vassal of the Earl of Morton’) as ‘almost an oxymoron’ (i.e. a legal impossibility).
63. On 2 June 2004 I wrote to Mr. Shearer concerning Sir Crispin’s demand for a further £1,250 to say
that I did not consider it reasonable that Sir Crispin should expect to be paid for sorting out his own
mistakes and also to say that Sir Crispin had agreed to prepare an opinion and that if he
underestimated the amount of work involved then that was his problem.
64. On 1 July 2004 Mr. Shearer wrote to me. He attempted to address the issues I had raised but in
doing so he was, of course, answering on Sir Crispin’s behalf and in relation to matters of which he
was wholly or largely ignorant. The general tenor of his letter was that these were difficult issues
that could only be resolved by a court (I was already aware of this fact and was not prepared to pay
thousands of pounds to be told the obvious) but I found his letter to be vague and evasive. He
started his explanations with phrases like ‘It seems to me’, ‘I do not know’, I do not believe’ and ‘I
am not sure’ (these words taken from 4 paragraphs in succession). As an answer to my points his
26
letter was worse than useless. Mr. Shearer expressed the view that Sir Crispin was entitled to his
fee and hoped that I would now pay it.
65. It should be noted that Sir Crispin refused to examine and consider the full 1634 charter in spite of
repeated specific requests from me that he do so.
Complaints to the Law Society and the Faculty of Advocates (2004
to 2005) 66. On 2 July 2004 I informed Mr. Shearer that I intended to make a complaint against him to the Law
Society of Scotland. In the event I did not make this complaint until November 2005. In broad terms
the Law Society of Scotland replied that they did not have the power to interfere with the exercise
of professional judgement unless it was exercised in a way that no reasonable solicitor would
exercise it. I pointed out to them that this was exactly what I was complaining about since no
reasonable solicitor should have accepted an opinion from counsel that contained a critical error of
fact (concerning the words ‘in libera regalitate’ in the 1636 charter). I got nowhere.
67. In July 2004 I complained to the Faculty of Advocates about Sir Crispin Agnew of Lochnaw. In
February 2005 (6 months later) the Faculty dismissed my complaint with a two line letter which
said: ‘'The Committee came to the view that your complaint is one of professional negligence
rather than of misconduct or of inadequate professional services' (note that no reasons for the
decision were given, merely the conclusion). I referred the matter to the Scottish Legal Services
Ombudsman on the basis that my complaint against Sir Crispin was not a question of opinion but
one of refusal to correct a critical error of fact (concerning the words ‘in libera regalitate’ in the
1636 charter) and of refusal to consider a critical document (the 1634 charter). I got nowhere other
than an award of £100 in respect of the delay in handling my complaint.
Referral to the Sheriff Court Auditor (2006 to 2008) 68. Eventually the matter was referred to the Sheriff Court Auditor but, in the end, I declined his
jurisdiction because he could only consider whether the work was necessary and was charged at a
reasonable rate. In my view it is not possible to deal with this case justly without a full
understanding of the facts and the underlying law as well as the ability to take in account, and act
on, all relevant issues, including negligence.
69. I was also concerned about his independence after he effectively threatened that legal proceedings
would be initiated against me if I did not allow him to determine the matter. I considered his
statements in this regard to be wholly inappropriate.
Petition to the Court of Session for a declarator of entitlement
(October 2004) 70. In October 2004 I petitioned the Court of Session in person (i.e. without legal representation) for a
declarator of entitlement to a barony arising out of a regality granted in 1636. The ancient Barony
of Mordington formed no part of this petition.
71. The basis of seeking a declarator was:
27
a. that in June 2003 the Scottish Executive Justice Department had written to me to the effect
that 'The Lord Lyon's view is that if you wish to obtain a judicial decision on the question of
whether or not you are the owner of a barony, the appropriate procedure would be for you
to raise an action of Declarator in the Court of Session.'
b. that the Scottish Law Commission’s ‘Report on Abolition of the Feudal System’ (Scots Law
Com 168) at 2.40 states: ‘If the Lord Lyon were not satisfied, on the evidence produced,
that an applicant for a coat of arms with baronial additaments was entitled to a barony,
and refused the application in relation to the additaments, then it would be open to the
applicant to seek a declarator of entitlement to the barony in the ordinary courts and, if
successful, to return to the Lord Lyon with that declarator.’
c. that in June 2004 I had approached Turcan Connell, a leading firm of Edinburgh solicitors,
for specific advice on this matter and they had advised me (at a cost of £1,500 for one
meeting) that proceeding by way of petition was the correct thing to do. They also
provided me with extracts of the relevant court rules and examples of actual petitions.
d. that the court staff in the Petitions Department at the Court of Session (who are legally
obliged to advise people on procedure – and identifying the right form is a matter of
procedure) had also advised me that this was the correct procedure (or at least did not
inform me that what I told them I was proposing to do was wrong – and I spoke to them
several times precisely in order to check that I was doing the right thing) and had also
provided me with a sample of an actual petition.
e. that in Earl of Balfour (Appellant) v Keeper of The Registers of Scotland and Others
(Respondents) [2002] UKHL 42, being an appeal from the Court of Session to the House of
Lords, Lord hope of Craighead said, at 3: ‘This is an appeal from an interlocutor of an Extra
Division of the Court of Session (Lord Cameron of Lochbroom, Lord Macfadyen and Lord
Sutherland) refusing the prayer of a petition* in which the appellant had asked the court
to pronounce an act and decree declaring him to be the fee simple proprietor of the lands
and the barony of Whittingehame and others ("the heritable property"): 2002 SLT 981.’
*Only petitions have prayers (i.e. a description of what is being asked for), summonses do
not.
72. The Court of Session refused to consider my petition on the basis;
a. that it was not in the correct form and should have been by way of summons (form 13.2 -
A) and not by way of petition (form 14.4) (see above). (This appears to be a direct lie by the
judge.)
b. that I appeared to have fallen out with my legal representatives and had not proved that I
could not afford the ‘protection’ of legal representation (this made me hoot with laughter).
I was, in fact, unemployed and on incapacity benefit at the time following a heart attack
and having lost my job but had not considered this relevant because I was under the
impression – correctly, but let that pass - that under the law of Scotland everyone has the
right to represent themselves in court (but this right has effectively been removed by the
simple expedient of requiring, under rule 4.2(5)*, a signature of someone with a right of
28
audience i.e. a barrister or solicitor advocate).
*’Where a party litigant is unable to obtain the signature of counsel or other person having
a right of audience or an agent on a document as required by paragraph (1), (2) or (3), he
may request the Deputy Principal Clerk to place the document before the Lord Ordinary for
leave to proceed without such signature; and the decision of the Lord Ordinary shall be
final and not subject to review.’
c. my petition appeared to contain a lot of irrelevant historical material. But how could the
judge know that the material was irrelevant when he knew nothing about regalities? And
was the court not under an obligation to make allowances for someone representing
himself? The judge appeared to think not but he would do well to read Article 6 of the
European Convention on Human Rights, if he is not already familiar with one of the basic
principles of justice; namely, the need to ensure equality between the parties (which
means that you don’t demand the same standards of knowledge from a party litigant as
you would from a qualified lawyer).
Renewal of petition to the Lord Lyon (October 2004) 73. Around this time I came to the conclusion that there was no doubt whatsoever that the lands of
Over Mordington had been detached from the Barony of Mordington in 1634, that after 1634 the
barony consisted solely of the lands of Nether Mordington (later called Edrington House), that the
barony had passed sub-silentio to Thomas Ramsay in 1636 and had descended to my wife and
myself when we bought Edrington House in 1998. Although I was equally convinced that a regality
had been created in 1636 and that a barony arising out of that regality had survived the passing of
the Heritable Jurisdictions Act 1747 and had passed to my wife and myself in 1998 when we
purchased Edrington House, and that the title ‘Lord of Regality’ had survived as well, it was obvious
that it would be much more difficult to persuade a court on this point – not because the case was
any less sound but because the court would simply refuse to recognize a lord of regality, regardless
of what the law actually was (such a title being, as Lord Bankton stated (see above) and therefore
as the court would be bound to recognize in the absence of compelling arguments to the contrary,
a ‘royal dignity’).
74. In October 2004 I wrote to the Lyon Clerk to ask whether I could amend my existing petition for a
grant of arms with baronial additaments to the effect that the baronial additaments I would be
claiming would be those of the ancient Barony of Mordington and not those of a barony arising out
a regality created in 1636. This was based on the premise stated above, namely that the lands of
Over Mordington had been detached from the barony in 1634, that after 1634 the barony
consisted solely of the lands of Nether Mordington (later called Edrington House), that the barony
had passed sub-silentio to Thomas Ramsay in 1636 and had to descended to my wife and myself
when we bought Edrington House in 1998. She replied that I could.
75. On 11 November 2004 the Lord Lyon issued an interlocutor recognizing me as Baron of
Mordington. He did this is spite of the fact that I had sent to him two post-1636 Crown charters
which purported to grant the Barony of Mordington to the then owners of Over Mordington. The
Lord Lyon ruled (as I had argued) that these charters were of no effect since the Barony of
Mordington had passed to the owners of Nether Mordington in 1636 (and not to the owners of
29
Over Mordington in 1634) and that the Crown could not grant a barony it did not hold; in other
words, since the owners of Over Mordington did not own the barony, they could not resign it, and
if they could not resign it, the Crown could not grant it out again.
Summary cause action in the Edinburgh Sheriff Court (November
2008 to date)
76. In November 2008 Lindsays began proceedings against me in the Edinburgh Sheriff Court for
payment of the monies they claimed were due to them and for which they had invoiced me,
namely £4,862.41; being £1,250 in respect of work carried out by them (mostly in relation to the
opinion but including two offers on properties made by Lindsays on my behalf), plus £3,525 in
respect of Sir Crispin Agnew’s opinion, plus VAT on both these amounts, less £131.34 in their
hands. Note that Sir Crispin’s outrageous demand for an additional £1,250 for his second opinion
had been dropped. The initial hearing was on 11 November 2008 and the last hearing was a hearing
on expenses on 11 December 2009.
Conduct of Sheriff MacKinnon – Relationship with Sir Crispin
Agnew 77. Before the first hearing before him Sheriff MacKinnon explained that he was a contemporary of Sir
Crispin Agnew (or some similar form of words) and he asked whether I was happy for him to hear
the case in light of this fact. I said that I was. In point of fact I considered, based on my own
knowledge and experience (see above for my experiences not only with Mr. Shearer of Lindsays,
and Sir Crispin Agnew of Lochnaw, but also with the Law Society of Scotland, the Faculty of
Advocates, the Lyon Court and the Court of Session – my view was, and is, that the whole bunch
were, and are, just a seething cesspit of back-scratching corruption, but you make your own mind
up), that the chances of obtaining justice against one Edinburgh lawyer in a case heard by another
Edinburgh lawyer (especially where negligence on the part of the first lawyer was asserted) were
virtually non-existent and that if I objected to a hearing in front of one contemporary of Sir Crispin
Agnew the chances were that I would simply find myself in front of another contemporary of his,
given that all the judges were of a similar professional background (i.e. Edinburgh barristers) and
likely to be of the same age group. The only guarantee of justice in such circumstances (and
remember that justice should not only be done but should be seen to be done) was a hearing in
front of a jury but my right to this appeared to have been removed (although enjoyed by our feudal
forebears – see above), and if I had a right to ask for such a thing no-one was informing me of it.
78. In any event, I consider that Sheriff MacKinnon did not fully disclose the nature of his relationship
with Sir Crispin Agnew; he did not, for instance, disclose the fact that they are members of the
same professional body, the Faculty of Advocates.
79. Note that Sheriff MacKinnon later stated that Sir Crispin Agnew was not a party to this case but,
even so, a judgement in my favour could be highly damaging to Sir Crispin, a fellow barrister, senior
counsel and distinguished member of the Scottish legal profession.
80. Whether you, the reader, feel happy to dismiss my concerns on this point out of hand, it is a fact
that the ordinary man in the street would consider it probable that a person may well not obtain
justice in such circumstances (to put it mildly).
30
Conduct of Sheriff MacKinnon – Solicitors’ negligence (the
standard of proof) 81. The proceedings, which were spread over 4 days (which, I believe, is highly unusual for a summary
cause action), were unnecessarily protracted as a result of the judge’s failure to identify a critical
preliminary issue, namely the question of the standard of proof that was required to establish
professional negligence on the part of the claimant solicitors, or of Counsel, whose opinion was the
cause of the dispute, and whether I was going to be able to meet that standard of proof, bearing in
mind the fact that I had not indicated any intention of calling expert witnesses. Indeed, the judge
allowed the claimant to ambush me at the end of the hearings by allowing him to conceal this issue
of the standard of proof from me until the very last possible moment; that is, until it was too late
(or until they thought it was too late) for me to frame a proper response. The tactic of the claimant
was quite simply to say, at the last minute and after all other arguments had been advanced, ‘the
merits of your case and all the arguments and evidence you have put forward are quite simply
irrelevant because you have not met the required standard of proof to prove, by calling expert
witnesses, that I, the claimant, or Sir Crispin Agnew were negligent’ and, in fact, this is exactly what
the claimant did.
82. The standard of proof required is laid down, as eventually revealed by the claimant, in ‘Solicitors’
Negligence’ by Professor Rennie (p. 34) where he says that professional negligence must normally
be established by professional expert witnesses who are senior practitioners with lengthy
experience in the particular branch of law concerned. Quite simply, it was obvious to the judge
from the moment he decided that I should lead in the proof that I was bound to fail because I was
not proposing to call any such expert witnesses. A neat trap.
83. Given that the judge, as a barrister of many years standing, CANNOT have been unaware of the
required standard of proof in relation to solicitors’ negligence, it is clear that he must have
DELIBERATELY failed to address this critical preliminary issue at the appropriate time (i.e. at the
beginning of the hearing). In other words, the claimant took advantage of my lack of knowledge
and tried to ambush me, which is specifically prohibited by solicitors’ rules of professional conduct
(The Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008, para 13(4)*), and the judge
was complicit in this ambush. It is clear therefore that the ENTIRE 4 day hearing was simply a
charade designed by both the judge and the claimant to give the appearance of justice while
denying me any possibility of obtaining it.
*’Where solicitors appear against a person who represents him or herself, they must avoid taking
unfair advantage of that person and must, consistently with their duty to their client, co-operate
with the court in enabling that person’s case to be fairly stated and justice to be done.’
84. Although this issue of the standard of proof was, in the event, argued by the parties and even
though the judge specifically stated that, in his view, my main problem would be proving
negligence to the standard required, he glossed over this issue completely in his judgement; he
merely referred, in paragraph 26 of his judgement, to the fact that negligence will not be proved
unless ‘the advocate has followed a course which no ordinary competent member of his profession
would have adopted if acting with ordinary care’ and, in paragraph 30, to the fact that I ‘did not
lead evidence from any professional lawyer to speak the steps which a solicitor or Counsel of
31
ordinary competence would have taken if acting with ordinary care’. But there is no assessment of
this issue in the judgement (what is its effect on the case?) or of the arguments that I put forward
on the question of professional compared to ordinary negligence; the judge’s statements are left
hanging in the air as mere facts with no description of the arguments put forward on either side or
of the judge’s assessment of those arguments. What is the judge’s conclusion on this critical issue?
We don’t know.
85. The point is that if, as the judge says, I needed to prove that ‘the advocate has followed a course
which no ordinary competent member of his profession would have adopted if acting with
ordinary care’ and I also needed to prove this, as the claimant argued and the judge agreed, by
means of evidence from professional expert witnesses who are senior practitioners with lengthy
experience in the particular branch of law concerned, and given that I did not do these things and
was quite evidently not proposing to call expert witnesses from the very start of the proceedings,
then the whole case could have been disposed of on this basis and all the protracted
explanations of and arguments concerning obscure areas of feudal law and all the evidence
submitted in support of those arguments, which took over 4 days of hearings, were (although
evidently of interest to the judge) quite simply unnecessary.
86. The judge was under a duty to manage the case in the interests of justice and to identify and
resolve critical preliminary issues accordingly. He failed to do so and I submit that his failure must
have been deliberate – and if not deliberate then grossly negligent.
87. The judge erred in law (and not, in my view, accidentally) by not assessing in his judgement the
arguments and evidence submitted by the parties in relation to this issue and, in particular, to my
argument that the negligence of the claimant and of Counsel was of such a basic nature* that it did
not constitute professional negligence but ordinary negligence; in other words, and using the
analogy I used in court, that it is hardly necessary to produce expert evidence to the effect that a
surgeon should wash his hands before an operation because it is ordinary common sense that he
should do so, and that failure to do so is not professional negligence but ordinary negligence. Thus,
a professional person can be guilty of ordinary negligence in the conduct of his professional duties
and this ordinary negligence does not need to be proved to the same standard as professional
negligence. In other words, you do not need expert evidence, you just need to refer to the conduct
of the reasonable man, which the court can do on its own.
*e.g. saying that the critical words ‘tenendas in libera regalitate’ were not in a critical charter when
they quite obviously were – and he even quoted these words from the charter in another part of
his opinion. In other words, Counsel contradicted himself with regard to the most important
question of fact within the same document.
88. My view is that the arguments that I put forward on this matter were so self-evidently compelling
and legitimate that the judge (who was clearly aware of Mr. Shearer’s ambush and expected it to
succeed for reasons stated) decided to ignore them completely in his judgement. What other
reason can he have for failing to assess the impact of something which he himself had identified as
the main issue? Note, in this context, the judgment of Lord Brown in South Bucks District Council
and another v Porter [2004] 4 All ER 775 where he states at para 36: ‘The reasons for a decision
must be intelligible and they must be adequate. They must enable the reader to understand why
the matter was decided as it was and what conclusions were reached on the "principal important
32
controversial issues", disclosing how any issue of law or fact was resolved.’
Conduct of Sheriff MacKinnon – The burden of proof 89. That the question of the standard of proof was a critical preliminary issue would have become
obvious to the judge the moment he decided that I should lead in the proof; that is, that the
burden of proof was on me to establish professional negligence rather than on the claimant to
establish that he had carried out the work instructed. The judge would have known of this matter
before the hearing, of course, because Mr. Shearer submitted an application to the court
concerning the matter.
90. In fact, at no stage was the claimant required to establish that he had carried out the work
instructed; the judge put the onus on me to prove that he didn’t and/or that he did so in a
negligent manner.
91. It is a ground of my request for recusal not only that the judge erred in law (and not, in my view,
accidentally) in placing the burden of proof on me, as argued below, and in not requiring the
claimant to prove that he had carried out the work instructed, but that the judge also erred in law
(and not, in my view, accidentally) in failing to inform me properly of the consequences of his
placing the burden of proof on me, since he had a duty to do justice to the parties and to place
them on an equal footing, as far as possible.
92. At the beginning of the hearing the claimant asked the court to rule that I should lead in the proof.
The judge asked me whether I had any objection to doing so and I replied that I might as well do so
since, as far as I could see, it would not make any difference, given that I would have to put my
arguments to the court at some stage and it didn’t appear to matter to me in which order the
arguments were put.
93. Clearly, however, the question of who should bear the burden of proof makes a considerable
difference. It was a much greater burden on me that I should have to prove non-
delivery/negligence than that the claimant should have to prove that he carried out the work
instructed – which is exactly why the claimant asked to have the burden of proof reversed in the
first place.
94. Mr. Shearer sought to gain an unfair advantage over me (in breach of the solicitors’ rules of
professional conduct*) by failing to explain the consequences of a particular step (placing the
burden of proof on me) and the judge allowed Mr. Shearer to take advantage of me by failing to
explain these consequences himself. My view is that the judge must have done this deliberately
since he cannot have been unaware of these consequences.
*(The Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008, para 13(4), state ’Where
solicitors appear against a person who represents him or herself, they must avoid taking unfair
advantage of that person and must, consistently with their duty to their client, co-operate with the
court in enabling that person’s case to be fairly stated and justice to be done.’ I assume that a judge
is under a similar obligation.
95. In this context ‘The Laws of Scotland’, Stair Memorial Encyclopaedia, ‘Evidence’, states (para. 275)
that the burden of proof generally lies ‘with the party who would fail if no evidence were led from
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the other side’; which is nearly always the claimant of course (i.e. if you sue someone for payment
of a debt you must prove that they owe you the money; it is not for the defendant to prove that he
doesn’t owe you the money). Although I accepted that I did instruct Mr. Shearer to obtain an
opinion from counsel, at no stage have I accepted that he actually delivered an opinion in terms of
what I instructed. It was clearly incumbent on the claimant to established that he had done so and
the claim should have failed had he been unable to do so. Following on from that, once the
claimant had established that he had delivered what was instructed, it would then (and only then)
have been for me to argue either that he didn’t deliver what was instructed or that he did so
negligently. Thus, the court completely missed out the critical first step, which was to establish that
the claimant delivered an opinion in terms of what I instructed, and left me to establish that they
didn’t or did so negligently.
96. After all, if a company sues a customer for non-payment of an invoice for physical goods, it is not
enough to prove that the goods were ordered, the claimant also has to prove that the goods
ordered were delivered according to the specification – or instructions in this case (this is why
people have to sign for deliveries). The defendant must then establish that the goods delivered
were faulty. Why should this case be any different?
Conduct of Sheriff MacKinnon – Introduction of documents into
the proceedings 97. The rules of the court specify certain requirements relating to introduction into proceedings of
documents on which parties seek to rely, and one of these relates to notice. ‘Documents’ means
any document (as confirmed to me in writing by court staff) and therefore includes authorities.
Although I believe the court has a discretion to allow the introduction of documents without notice,
it is clear that this discretion must be exercised reasonably and not at all if it will put a person
representing himself at a serious and unfair disadvantage.
98. During the hearings the judge refused me permission to introduce a document without notice (an
E-Mail from Mr. Peskett) but he allowed Mr. Shearer to do so, and he allowed Mr. Shearer to do so
without requiring him to explain why he should be allowed to do so or why he had failed to
introduce the document properly (i.e. with notice). Since the judge was given no good reason to
exercise his discretion, it follows that he exercised his discretion without good reason; that is,
unlawfully.
99. The document that the judge allowed Mr. Shearer to introduce without notice was an extract from
‘Solicitors’ Negligence’ by Professor Rennie and Mr. Shearer needed this authority to support his
argument that professional negligence must be proved by calling expert evidence. As I have stated
above, Mr. Shearer introduced this argument at the last possible stage of the hearing in order to
ambush me (that is, to deny me an opportunity to frame a proper response to the argument). This
was an unfair and improper tactic by which Mr. Shearer sought to take advantage of my lack of
knowledge of the law and the judge, far from preventing him from doing so, actually aided him.
Indeed, the judge must have been aware that I would be seriously prejudiced by his allowing Mr.
Shearer not only to introduce a critical argument at the last minute without notice but also by his
allowing Mr. Shearer to introduce authority to support that argument without notice. A double
whammy.
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100. What was curious about the introduction of this document into the proceedings was that the judge
allowed a copy of the relevant pages of the work in the library to be made during the lunch hour
and he asked if I would like to have any documents copied from the library as well. Since I had not
asked for any documents to be copied this was a rather nonsensical thing to do. My view is that this
was designed to make me feel that I also had an opportunity to have documents copied and that
this somehow made the process legitimate and fair. In short, it was designed to ’put me off the
scent’, to lead me away from forming the view that what was going on was actually illegitimate and
unfair, something both Mr. Shearer and the judge were fully aware of.
101. It is scandalous that a judge should allow a person representing himself to be prejudiced in this
manner.
Judgement of Sheriff MacKinnon 102. The judgement of Sheriff MacKinnon dated 22 September 2009 is so full or errors, omissions,
misleading statements and conclusions not supported by reasons that it is difficult to know where
to start. All of these matters will be raised by way of appeal in due course but, for the purposes of
my request for recusal, I only provide details of the following matters.
103. It is clear that one of the most important issues in this case (if not the most important, as I would
argue) is the question of what it was I instructed Sir Crispin Agnew, via Lindsays, to do. Sir Crispin
Agnew’s opinions only dealt with the question of whether there was a barony arising out of a grant
of a regality in 1636, whereas my letter of instruction to Mr. Shearer quite specifically stated that I
was looking to identify ‘some form of barony by the quickest and least expensive means’. I argued
in court that the words ‘some form of barony’ clearly meant ‘any form of barony’ (as Mr. Peskett
had clearly understood in preparing his report) and because Sir Crispin’s opinion only dealt with the
question of whether there was a barony arising out a grant of regality in 1636 and not the question
of the ownership of the Barony of Mordington, which he knew existed and of which my property
had at least once been a part, he had fundamentally failed to provide an opinion in terms of what I
had instructed. In fact, because it had turned out that I did actually own the Barony of Mordington,
Sir Crispin Agnew had been ‘barking up the wrong tree’ all along and most of his work had been
entirely unnecessary. Mr. Shearer argued that what I had instructed them to do was to identify
whether there was a barony called the Barony of Nether Mordington (and no other name) and
arising only out of a grant of a regality in 1636 (and in no other way). I submitted to the court that
this argument was self-evidently nonsense; why would someone not be interested in knowing that
they owned a barony with some other name or a barony created in some other way (i.e. other than
by a grant of regality in 1636)? Indeed, it was quite clear from the fact that I ‘bombarded’ (I think
they would accept the use of that word) Sir Crispin Agnew and Mr. Shearer with questions about
the 1634 charter that I most definitely considered the question of the 1634 charter, and what
happened to the Barony of Mordington, to be within the scope of my instructions. Indeed, it is clear
that because neither Sir Crispin nor Mr. Shearer responded to my ‘bombardment’ with the question
‘Why are you asking us to look into this issue; it isn’t in your letter of instruction?’, that they
accepted that the issue was within the scope of my letter of instruction.
104. The key words in my instruction were therefore the words ‘some form of barony’. But it is not just
the words themselves that are critical, the question of where those words occur is also critical. It is
clear that if these words are included in the actual letter of instruction (as they were) by way of
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summary explanation in that letter (as they were) they will have far greater force than if they are
merely some sort of afterthought in some other general communication, not being the actual letter
of instruction or a communication clearly supplemental to the letter of instruction. On this basis it is
critical that in order to arrive at a sound judgement in this case the judge should be absolutely
crystal clear, both in his own mind and in his written judgement (which explains the process by
which he has come to his conclusion) about where these words occurred.
105. Now Sheriff MacKinnon knew, because the letter of instruction had been put to him in evidence,
that these key words were included in the letter of instruction by way of summary explanation, yet,
in spite of this, he stated in his judgement that these words were merely stated ‘in his [i.e. my]
correspondence’ (paragraph 7 of the judgement). The effect of this statement is to reduce the
significance of these words to such a degree in the mind of the reader that they are not given their
proper weight. The question is why Sheriff MacKinnon, given that he was dealing with my letter of
instruction in paragraph 7, failed to make clear that these critical words were in that specific
document and why, by describing them as being ‘in his correspondence’ rather than ‘in his letter of
instruction’, he misled the reader on this critical point. Judges know the critical importance of
words and the importance of exactitude in such matters as where words occur, particularly in
relation to key contractual documents. So is this merely an unimportant mistake? Well, it is clearly
not unimportant because it concerns probably the four most important words in the entire case. So
was it a mistake? I do not believe that it was; I believe that Sheriff MacKinnon was trying to
deliberately downplay the significance of these words because once their significance is
appreciated it becomes obvious that Sir Crispin Agnew failed to follow my instructions in a
fundamental respect.
106. Moving on to the next issue. With regard to the 1634 charter, Sheriff MacKinnon states, in
paragraph 37 of his judgement, that ‘I was not satisfied that, in the circumstances, there was any
duty to conduct further research into the 1634 charter’. In paragraph 38 he continues ‘I was not
persuaded that the defender’s contentions that agents and counsel were negligent in declining to
look at the 1634 charter were sound. Although the charter had been referred to in Mr. Peskett’s
report it was only by E-Mails sent in March 2004 i.e. after senior counsel’s first opinion, that the
defender drew attention to the detailed terms of the 1634 charter.’ So the sole reason that Sheriff
MacKinnon was ‘not persuaded’ was because of the timing of the E-Mails. (By the way, if you pay a
lot of money to an expert to carry out research and form an opinion based on that research, whose
responsibility is it to ascertain the terms of key documents – yours or theirs? Quite.)
107. Let us try to identify the general principle that Sheriff MacKinnon is applying here. What Sheriff
MacKinnon is saying is that if, shortly after counsel has issued an opinion, the client notifies him of
a potentially serious issue which he has not dealt with in his opinion and which may seriously
undermine that opinion (which in this case it did), counsel is under no obligation to look into the
matter even where information was previously put before counsel which could, or arguably should,
have put him on enquiry about that issue. So the general principle is that where someone is
contracted to carry out work for another person, if they are notified of a potentially serious
problem with that work after they have completed it, they are under no obligation to do anything
about it. Is this not what Sheriff MacKinnon is saying?
108. Let us apply this general principle to another set of facts to assess whether it is sound. Sir Crispin
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Agnew takes his car to a garage to be given ‘a general service’. He returns later that day and says
‘Have you finished servicing my car?’ The answer is ‘Yes’. Sir Crispin drives the car away. He has not
gone ten yards when he discovers that the steering is loose (and potentially dangerously so), as it
was before the service was carried out. He returns to the garage and tells them of the problem.
They refuse to fix it. Sir Crispin sues the garage. Sheriff MacKinnon dismisses Sir Crispin’s claim on
the basis that since the garage were not told about the problem until after they had done the
service, they were under no obligation to do anything about it, even though the garage should,
arguably, have been put on notice about the problem when they examined the car and that the
words ‘general service’ clearly include inspecting the steering.
109. It becomes obvious that Sheriff MacKinnon’s reasoning is preposterous nonsense.
110. In paragraph 14 Sheriff MacKinnon says that ‘having regard to the wording of the 1634 charter, the
defender considers that Over Mordington was dissolved from the barony of Mordington and
afterwards the barony consisted solely of the lands of Nether Mordington.’ This does not fully
reflect what I pointed out to the court, which was that I cannot have been recognised as Baron of
Mordington unless the lands of Over Mordington were dissolved from the barony in 1634. It follows
(must be the case) that it is not just me who is of that opinion, it is the Lord Lyon as well. And, in
fact, I pointed out to the court that the Lord Lyon had written to me to this effect. I did not produce
the actual letter because the grant of arms recognising me as baron, which I did produce, was
sufficient to prove the point. In other words, the judge has ignored the fact that I proved to the
court that the Lands of Over Mordington were dissolved from the barony in 1634.
111. In paragraph 15 Sheriff MacKinnon says that ‘the defender considers that in terms of the 1636
charter, the Earl of Morton resigned the barony into the hands of the King. He also considers that
the 1634 charter was a charter by progress rather than a feu charter.’ Again, this statement does
not reflect what I said to the court, which was that I cannot have been recognised as Baron of
Mordington unless the Earl of Morton resigned the barony to the King in 1636 and the charter of
1634 was a charter by progress and not a feu charter. The fact that I was recognised as baron
proves that this must have been the case. The logic is very simple and I explained it in simple terms
to the court.
112. I could go on (and in my appeal document I do just that) but I think I have made my point.
113. In my view, these issues clearly demonstrate Sheriff MacKinnon’s bias.
Sheriff MacKinnon’s manner of dealing with the request for
recusal 114. When I asked Sheriff MacKinnon to recuse himself I explained very clearly (and I have this on tape)
that I was unable to give full reasons for my request because I had not had sufficient time to
prepare them. I was therefore only able to give a broad summary or indication of my reasons. In
spite of this Sheriff MacKinnon proceeded to refer the matter to the Sheriff Principal for review. He
clearly should not have done this; he should have given me an opportunity to present my full
reasons to him since he should not, in the interests of justice, have excluded the possibility that he
might have been persuaded by them.
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115. I regard this as further evidence of bias on Sheriff MacKinnon’s part. He was clearly keen to ‘get my
request out of the way’ as soon as possible without properly considering it.
Response of the Sheriff Principal
116. The fact that I had not had an opportunity to present my full reasons to Sheriff MacKinnon meant
that he, in turn, was not able to respond properly to my full reasons in his note to the Sheriff
Principal (How can Sheriff MacKinnon respond to reasons he does not know about?).
117. Although it was obvious to the Sheriff Principal that he was only seeing, as it were, ‘one side of the
argument’ (because I had made no submission to him) and although he should, in the interests of
justice, have given me an opportunity to make submissions, he did not do so. He refused my
application solely on the basis of consideration of Sheriff MacKinnon’s note to him.
118. I regard this as evidence of bias on the Sheriff Principal’s part. He was clearly keen to ‘get my
request out of the way’ as soon as possible without properly considering it.
Conclusion 119. It should be clear on, on the basis of what I have described above, that I have absolutely no
expectation whatsoever of achieving justice in this case. But as I said to Sheriff MacKinnon during
the last hearing, there is a very easy way to ensure justice and that is to put the matter to a jury.
They would, I am perfectly certain, give very short shrift to the specious arguments put forward by
the claimant in this case. I will not be given this opportunity.
120. As I also said to Sheriff MacKinnon during the last hearing, this case has been a ‘stitch-up’ from
beginning to end. I know it, you know it and any reasonable person reading this document will
know it.
121. Why on earth, therefore, have I gone to all the trouble of preparing this document? The answer is
because this paper will be permanently available from the home page of Lindsays website and from
the homepage of the Scottish Courts Service and from the homepage of the Faculty of Advocates.
(via Sidewiki - http://www.google.com/sidewiki/intl/en_GB/index.html).
122. I cannot prevent you stitching me up (as you have known all along) but, by God, I can make sure
that people know about it. Welcome to the Age of the Internet.
“Experience hath shewn, that even under the best forms [of government] those entrusted with
power have, in time, and by slow operations, perverted it into tyranny” – Thomas Jefferson
Graham Senior-Milne