Duffield Morgan Ltd v. Historic Scotland [2004] ScotCS 32 (13 February 2004)

Duffield Morgan Ltd v. Historic Scotland [2004] ScotCS 32 (13 February 2004)

The 1950 Agreement did not create an independent public right of access; the right of access is an incident of guardianship, subject to the guardian's control and regulation. Such a right is not capable of prescription and will subsist so long as the guardianship agreement is not terminated, regardless of public use.

Citation
[2004] ScotCS 32
Parties
Pursuer: Duffield Morgan Limited; Defender: The Right Honourable Colin Boyd, Q.C. Lord Advocate as representing Historic Scotland
Jurisdiction
Scotland
Judgment Date
13 February 2004
Procedural Posture
Civil / Procedure Roll (pleas to Relevancy and Specification)
Outcome
Pursuer's plea in law repelled; decree of absolvitor granted by sustaining defender's second plea in law.
Legal Topics
Guardianship of Ancient Monuments, Public Right of Access, Prescription and Limitation, Statutory Rights, Servitude, Imprescriptible Rights
Property Law Public Law Statutory Interpretation Guardianship of Ancient Monuments Public Right of Access Prescription and Limitation Statutory Rights Servitude +1 more

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Parties

Duffield Morgan Limited

Pursuer

The Right Honourable Colin Boyd, Q.C. Lord Advocate as representing Historic Scotland

Defender

Procedural Posture

Civil / Procedure Roll (pleas to Relevancy and Specification)

Legal Issues

  1. 1 Nature of public right of access under guardianship agreement
  2. 2 Whether public right of access is capable of prescription
  3. 3 Interpretation of statutory guardianship scheme

Ratio Decidendi

The 1950 Agreement did not create an independent public right of access; the right of access is an incident of guardianship, subject to the guardian's control and regulation. Such a right is not capable of prescription and will subsist so long as the guardianship agreement is not terminated, regardless of public use.

Court Disposition

Pursuer's plea in law repelled; decree of absolvitor granted by sustaining defender's second plea in law.

Orders

  • Decree of absolvitor in favour of defender
  • Pursuer's plea in law repelled