Paterson, Re Application For Authority To Disinter The Remains Of The Late Mrs Margaret Dunn Or Black & Peter Butler [2000] ScotCS 197 (14 July 2000)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish Court of Session Decisions You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paterson, Re Application For Authority To Disinter The Remains Of The Late Mrs Margaret Dunn Or Black & Peter Butler [2000] ScotCS 197 (14 July 2000) URL: https://www.bailii.org/scot/cases/ScotCS/2000/197.html Cite as: [2000] ScotCS 197 [ New search ] [ Help ] OUTER HOUSE, COURT OF SESSION P154/12/98 OPINION OF LORD PENROSE in Petition of JOSEPH PATERSON Petitioner; for Authority to disinter the remains of the late Mrs Margaret Dunn or Black and Peter Butler ________________ Petitioner: Summers; HBM Sayers First Respondent: Brown; Drummond Miller, W. S. Second Respondent: Ferguson; Simpson & Marwick, W. S. 14 July 2000 [1] The petitioner, Mr Paterson, holds a certificate issued on 14 April 1961 by the Cemetery Board of the Roman Catholic Diocese of Motherwell in respect of lair number 906 in St Patrick's Cemetery, New Stevenson. The lair certificate granted him the exclusive right of burial in the lair for a period of sixty years from the date of issue subject to the conditions restrictions and others laid down from time to time. Responsibility for management of the cemetery now lies with North Lanarkshire Council. [2] Mr Paterson avers that his mother-in-law, the late Mrs Helen Mitchell, was buried in the lair on 14 April 1961. During the later years of her life she had shared a home with the petitioner and her daughter, Mrs Ellen Paterson, and a close bond had developed among the three. The lair was purchased with a view to providing a final resting place for them respectively as they died. [3] Mr Paterson further avers that, in error, two burials have been permitted in lair 906 by North Lanarkshire Council after the interment of Mrs Mitchell, namely Mrs Margaret Black or Dunn and Mr Peter Butler. There are averments of circumstantial details explaining how the error came to be committed and of the subsequent actions of the Butler family and of the Council. These are not material for present purposes, since Mr Paterson's averments must be taken pro veritate at this stage. Mr Paterson has applied to the Court for an order to compel the Council to disinter the remains and to re-inter them in accordance with the wishes of the Butler family. [4] The Council and members of the Butler family have lodged answers opposing the prayer of the petition. They respectively dispute certain of the factual averments made by Mr Paterson, and they dispute the competence of the application and the relevance of the averments made in support of it. In addition each contends that Mr Paterson does not have a title to present the application and that the petition should be dismissed without enquiry. On the pleas of no title to sue the case came to debate. [5] The question whether to grant an order in the terms sought would give rise to serious legal and factual issues. These will remain unresolved after disposal of the question of title to sue if the petition is not dismissed. However, in the circumstances of this case, given the peculiar sensitivities which arise for the two families involved, there appeared to be no objection to isolating the single issue parties agreed on for disposal in the first instance. [6] The cases to which I was referred disclose few principles of general application on which one can rely in resolving the present dispute. Perhaps the most relevant help one can deduce from them takes the form of some particular propositions which may give guidance as to the approach one might adopt in the special circumstances of this case. [7] There is a distinction between burial in a parish churchyard or other recognised or authorised place of burial on the one hand, and irregular burial on the other hand. Mr Ferguson suggested, on the basis of a dictum in Earl of Mansfield v Wright 1824, 2 Shaw's Appeals 104, that the relevant distinction was between lawful and unlawful burial. In addition to recognised burial grounds, burial may be authorised by the proprietor of private property: Green's Encyclopaedia Vol 2 para 1265; Stair Encyclopaedia Vol 3 para 515. The ranges of acceptable places of burial and of the circumstances in which a burial may take place, seem too wide to permit of the distinction suggested if particular significance is to be attached to either expression. [8] Burial in property which has not been identified as a place of public burial, without the authority of the proprietor, is an invasion of the owner's property rights which the court may remedy without the consent of the relatives of the deceased and probably against their wishes. In my view that is the effect of Ouchterlony of Guynd v Officers of State 1823, 3 S. 437; 1825, 2 W&S 533. Members of the Ouchterlonie family had been buried within the ruins of Arbroath Abbey for some time. A wall had been erected to surround the area used, which was apparently an overburden of rubbish covering the original floor of the abbey. The Crown proposed to clear the floor. In order to avoid distress to the families involved, the remains discovered were to be recovered, and permission was to be given to re-inter them under the floor of the restored interior. Ouchterlonie sought suspension of the operations and interdict against the Crown proceeding with them. Title to the space was in dispute, but that was resolved in the Crown's favour. The case appears to have been fought on the basis that that was determinative of the issue. Ouchterlonie's bill of suspension and interdict was refused. The Crown's declarator of ownership was granted. [9] There was no dispute that Ouchterlonie was related to the deceased persons whose resting place it was intended to disturb. Ouchterlonie was ordered to take down the wall, and it was apparently thought that that left the Crown free to remove the overburden. In the Inner House the Crown's undertaking to recover the remains and to provide for their re-interment was noted, and may have had a bearing on the decision. But there was no condition to that effect, and it was not given prominence in the decision of the House of Lords: Lord Gifford page 537. It is clear from the case that the owners of land in which a burial had taken place without authority would be entitled to enlist the court's authority in removing the remains, and that, if necessary, against the will of the deceased's relatives and representatives. [10] It was, however, a finding of the Lord Ordinary that "the small place claimed .... is no part of a church-yard". In Earl of Mansfield v Wright the relevant burials had occurred at a time when the ground in question was the local parish churchyard. There had been a series of excambions which had seen land pass between the heritors and the Earl's ancestor. In 1804 the relevant area was transferred to the family when a new location for the Church and churchyard had been provided. It was returned on condition that the land should not be disturbed until the remains of the bodies there interred should have returned to their original dust. The Lord Justice Clerk, at page 108 of the Court of Session report, made the comment on which Mr Ferguson relied: "There was no doubt that Mr Wright and his son were lawfully interred in the ground set apart for that purpose." More significantly for present purposes he said: "They were interred near the grave of the previous minister of the parish, and without objection on the part of Lord Mansfield, or of any other person. Leave to bury their bodies there, indeed, could not have been refused. It is clear as the sun at noon-day, that by the common law no person can interfere with these graves, or do any thing affecting the ground, that can tend in any way to injure the feelings of the connexions of those who are there interred. No one has a right to break up the ground of interment to the remotest periods of time. There the dust must remain." The House of Lords adhered. [11] The burials in Wright had been in exercise of the right of the incumbent Minister and members of his family dying during his incumbency to burial in the parish churchyard. No question of contract arose. In such circumstances, the relatives of the deceased were held to have a title to sue for restoration and preservation of the churchyard notwithstanding that the land had reverted to the Earl. The Lord Justice Clerk's unqualified observations appear inconsistent with the general understanding of the law of the parish: Duncan's Parochial Ecclesiastical Law below, and Steel v Kirk Session of St Cuthbert's 1891, 18 R 911. The issue which arises in the present case is in any event very different. The lair certificate makes reference to Roman Catholic canon law. Counsel could suggest no rule of that code which could have a bearing on the matter, even assuming that the provision remained extant. The rights of Mr Paterson and of the Butler family depend on contract. And it is clear from the temporal limitations in the certificate that one could not apply the Lord Justice Clerk's observations to either party without qualification. [12] The present case does not depend directly on the law relating to parishioners' rights of interment in burial grounds provided by the heritors of the parish. One is concerned essentially with a privately established cemetery, probably set up originally to cater for the interests of a significant religious denomination, but not a public parochial burial ground. The characteristics of lairholders' contracts in similar circumstances were considered in Cunningham v Edmiston 1871, 9 M 869. The Lord Ordinary, Lord Gifford, said at page 873: "..the whole rights, whether of proprietors or of lairholders, in a cemetery, may be said, with strict accuracy, to arise ex contractu , the one party giving and the other receiving exactly what is bargained for, and nothing more. But while this is undoubtedly the true legal character of the rights - a mere contract right - still, the contract is generally so indefinite, and so much is left to implication, that it is useful to keep in mind the rights and privileges which are recognised to exist in public and parochial burying grounds, because many of these rights must be held to be implied in the purchase of a lair or burial-place in a cemetery, and the contract right of a lairholder in a cemetery, though it may be broader and different from the right of a heritor or parishioner in an allocated portion of a parochial burying-ground, can scarcely be less than that of such heritor or parishioner." [13] The Lord Ordinary held that the lairholders, though a small proportion only of the total number holding certificates in that case, had a title to challenge the proprietors' management of the cemetery. But the conclusions failed on their merits. In the Inner House, Lord Deas thought that the proprietors held the cemetery in trust for the lairholders, and on that basis he agreed that there was title to sue. Lord Ardmillan, Lord Kinloch and Lord President Inglis agreed with the Lord Ordinary's analysis. So far as they may have a bearing on the issues in this case, Lord Gifford's observations at page 875 can be summarised as follows: In a lair contract, in that case declared to be in perpetuity, no absolute right of property was conferred on the lairholder. The right purchased was a right to use the allocated lair for the sole purpose of sepulture. The ground could be put to no other use. The whole cemetery in which the allocated lair was situated was to be held as dedicated exclusively as a burial ground. [14] The contracts entered into with lairholders must have conditions implied, if not expressed, which derive from the peculiar sensitivities associated with the disposal of the dead, and the reverence in which their burial places may be held. These are the same considerations which are reflected in the common law rules governing relationships between the heritors as proprietors of parochial burial grounds and those holding allocated burial plots. The rights conferred were never absolute. I was referred to Duncan's Parochial Ecclesiastical Law , paragraphs 49 - 51. It is clear from the discussion in the chapter as a whole that apportionment of a plot for burial did not imply appropriation of the plot as a resting-place in perpetuity. What was conferred was a temporary right of repose until the body had returned to dust, a period generally thought to be between eighteen and twenty-five years. After that time the heritors, or the Kirk Session to whom management was often delegated, could re-allocate the ground. The place was revered in perpetuity as the last resting-place of the bodies buried there. But that did not prevent repeated use of the same plot for later burials, even of members of different families. [15] Lair contracts typically specify periods which may be longer or shorter than the common law rules would prescribe for exclusive undisturbed occupancy of a grave. The present case reflects a common departure from the idea of perpetual dedication of burial grounds reflected in Cunningham and Ouchterlony . Sixty years might or might not exceed the time which the common law rule would allow for total disintegration of the remains depending on the date of the last interment. But the time-limit on exercise of the right of burial means that the right itself will be exhausted at a fixed date, whatever the interests and wishes of the then holder of the certificate might be, subject to any fresh contract entered into with the proprietors of the cemetery at the time. And they, as owners, may refuse to extend the term. They may close the burial ground to fresh burials when all current rights expire. [16] Within the limits defined by his certificate, however, Mr Paterson had an exclusive right of burial in the lair purchased by him. I consider that he clearly had and has a title to enforce that condition against the Council at least as long as matters remain entire. "Every lairholder has a title to sue for vindication of his own rights...": Green's Encylopaedia at para 1267. [17] If Mr Paterson is to be held to have no title to sue in this case, it must be on the basis that, notwithstanding the usurpation of the exclusive right for which he contracted, there is an insuperable obstacle to his title which arises from the fact that the infringement of his rights took the form of burial of the bodies of deceased persons whose surviving relatives object to the remedy. A material question is whether the authorities demonstrate, in the context of contractual rights of burial, either positively that the Butler family have an exclusive title to any remedy which might involve disinterment, or negatively that Mr Paterson cannot have a title to pursue this petition. For the Council, Mr Ferguson argued that there was indeed an insuperable obstacle to the application. There were only two or at most three categories of persons who were entitled to seek the court's assistance in procuring the disinterment of human remains: relatives of the deceased; the managers of the cemetery; and certain people standing in special relationships to the deceased. [18] As a matter of logical analysis the scheme of this submission might be thought to be flawed. If the managers of the cemetery are entitled to seek authority to disinter, it might be difficult to see, as a pure question of title to sue, how a person with a right which has been infringed by an interment authorised by them or on their behalf should not be able to require them to use their admitted title to seek the court's authority to disinter for the benefit of the injured lairholder. But it is appropriate to consider the classification proposed in the light of the authorities to explore the argument that there are restrictions which prevent Mr Paterson having a title to present this application. [19] It appears to be clear that close relatives of a deceased person may apply to the court in appropriate circumstances for authority to disinter and re-inter the remains. In Morrison Petitioner 1983, 20 R 902, a widow's petition for authority to disinter her late husband's remains was remitted to the sheriff for inquiry. In Solheim & Others Petitioners 1947 S. C. 243, the court granted the prayer without remit where the petitioners were widows of Norwegian seamen buried in Scotland during the occupation of Norway. In Helen McGruer Petitioner 1898, 15 Sh. Ct. Rep. 38, the mother of an illegitimate child was held to have no title to apply for authority to disinter her daughter's remains because the natural relationship was not recognised in law. If correct, that decision would suggest that "relationship" should be construed narrowly. But there is no other indication of that, and the decision cannot stand with the earlier decision in the case of Kilpatrick Petitioner 1881, 8 R 592 referred to below. [20] In Steel v Kirk Session of St Cuthbert's , the heritors of the parish were held entitled, as proprietors in trust of the parish church and churchyard, along with the Kirk Session, as managers, to encroach on the burial ground in enlarging the church. This involved removing soil in which there had been burials. But it was held that no private rights were interfered with since the burial ground had been closed for sufficient time to ensure that the remains had resolved into their natural dust: Lord President Inglis at page 918. If the hypothesis was correct, disinterment was hardly a practical issue. But the decision reflected the general law as discussed in the chapter in Duncan referred to earlier. It is inconsistent with the unqualified comments in Earl of Mansfield v Wright and suggests that those comments should only apply to actions at the person's own hand, without the authority of the court, in cases of private ownership. That apart, the decision is inconsistent with the view that relatives of the deceased persons buried in a cemetery have an effective right of objection to another qualified person's title, or an exclusive title themselves to apply to the court. The case is perhaps as clear an example as one could find of the validity of Lord Gifford's observations of the relative value of the rights of heritors and those having contractual rights. It supports the title of the owners of a burial ground to seek authority from the court to interfere with the subjects in appropriate circumstances. [21] The application of Sister Jarlath 1980 S. L. T. (Sh Ct) 72 was said to fall into the same category. In it the ecclesiastical superior of a convent in Glasgow sought authority to disinter the remains of members of the order who had been buried in the convent burial ground for reburial in a different cemetery when the convent buildings were demolished for redevelopment. The sheriff granted the application even though the process of disintegration could not be said with confidence to have been completed in a number of instances. Sister Jarlath was Mother Superior of the convent. She was not, however, the proprietor of the land. The petition was continued for intimation to the whole trustees of the relevant province of the order as owners. They in due course consented. But strictly the case is an extension of the ground of title, and an illustration of an application by an interested party who could not independently instruct title to sue on either of the two principal bases suggested. [22] Of the cases referred to, there remain two in which disinterment was authorised. In my opinion, neither falls within the either of the two principal categories on which Mr Ferguson relied. Further they display no common characteristics such as would entitle one to define a third category. Mr Ferguson's submission that they illustrated a category in which persons with a special relationship with the deceased had sought and been granted authority. I do not agree. [23] In Commonwealth Graves Petitioners , 6 May 1961, unreported, the Court authorised the disinterment of German and Italian war dead buried in Scotland for re-interment in dedicated war cemeteries in England. The German dead were identified, but their relatives could not be traced. Their consent or approval was not sought. In the case of the Italian remains, the bodies could not be individually identified. Research in the records indicated that the Scottish cemeteries were not under the management nor in the ownership of the Commission. There was no relationship between the Commission and the deceased. An interest would be created, no doubt, by the operations intended, in respect that the re-interment would be in cemeteries under the management and control of the Commission. But it is difficult on the information provided to me to identify any title to seek authority to disinter in the first place, if that requires to be instructed on some defined basis, and in particular by reference to a special relationship between the appellant and the deceased at the time disinterment is sought. [24] Kilpatrick Petitioner is equally difficult to classify. The testamentary trustees of the deceased held £500 for the erection of a mausoleum over his grave. He was buried in a plot belonging to a deceased relative. The relative's representatives refused permission for the erection of the mausoleum. In due course the other provisions of the testament were fulfilled. The last surviving trustee wished to resign. A judicial factor was appointed on that trustee's application. He sought and was granted authority to disinter the remains for re-burial in another site where he could erect the mausoleum. The judicial factor was an officer of the court. He could have no relationship with the deceased in that capacity and none was suggested. As judicial factor his function was to complete the administration of the estate. He could have no rights relating to the body, even to the extent of preventing a third party from interfering with the grave. No one has property in human remains. The case appears again to be inconsistent with the notion that only a narrowly defined class of persons has title to sue. [25] The circumstances in each of these cases were unusual. But that cannot instruct title in itself. In my view they negate any proposition that the first and second categories of cases are exhaustive of title to apply to the court. They tend to suggest that the court has a wide discretionary power to resolve these sensitive issues when asked by a person having some colourable title and a sufficient interest rather than that narrow issues of title to sue determine the approach to be adopted. It is of interest to note the tentative terms in which the article in the Stair Encyclopaedia at para 535, puts forward a general rule, and in my view rightly so. Taking the whole cases so far discussed together it is difficult to discern any general principle or any basis from which a principle could be deduced. [26] Mr Ferguson relied on Black v McCallum 1924, 40 Sh. Ct. Rep. 108 as authority for the proposition that, whatever the scope of the general rules, a lair certificate did not instruct a title to present such an application. There was no dispute that the sheriff substitute's disposal of the case was correct. The petitioner did not hold the lair certificate at the time of the interment of the body which it was proposed to remove. It appeared that the burial took place at the instance of an appropriate relative and with suitable consents. It is the more general observations which cause difficulty, and in particular the implication that only relatives of the deceased might present an application for authority to disinter. In my opinion that was clearly wrong. It was inconsistent with the decisions in Kilpatrick and the Commonwealth War Graves Commission case. [27] In my view there is no basis in authority for any definitive or exhaustive list of persons who may have title to present an application for disinterment. Title will depend on the rights which the applicant contends are available to him. In the present case the petitioner has contractual rights. They have been infringed, on his averments. Prima facie he has a title to enforce his contractual rights. None of the relevant authorities precludes that title, in my opinion. [28] Counsel made submissions about the general nature of the court's jurisdiction. I shall reserve my views on these matters. As indicated at the beginning of this opinion, the resolution of the issue of title to sue will leave unresolved a number of important legal and factual issues. Until there has been full argument it would be inappropriate to comment on the general or particular principles applicable in the disposal of the merits of the petition. [29] In the circumstances I shall repel the pleas of no title to sue for each respondent. I shall have the case put out By Order for discussion of further procedure. Parties should consider with care the alternatives to proof before answer in ordinary form which might be open, given the sensitive issues which would arise for the two families involved. 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