Outer House case in which the Baron of Bachuil sought an interdict preventing the use of an access way across his property over which Mr Paine and his partner claimed a servitude existed to a croft (Croft Ballimackillichan). Mr Paine was the uninfeft (the disposition in his favour was awaiting registration) proprietor of the croft and his partner was a tenant at the croft.

Mr Paine argued:

  1. That an action had been heard at the Sheriff Court in Oban in 1899 at which it was found that a public right of way existed along a longer route of which the disputed access was part. Although the public right of way was no longer in use, Mr Paine argued that a private right remained flowing from the findings in 1899. As a result of the doctrine of res judicata (i.e. that a matter which has already been judged cannot be subject to further litigation), Mr Paine contended that the Baron could not challenge the servitude.
  2. That, following the comments by the Baron’s parents (when the Baron’s father was the sole proprietor of the property) indicating acceptance of the presence of the servitude (on which Mr Paine had relied when purchasing the croft), the Baron was personally barred from challenging the servitude.

Res judicata

Lord Turnbull found that Mr Paine’s plea based on res judicata was irrelevant.  The case had established a public right of way over a longer route in 1899 and did not confer a private right on anyone. It did not operate to found a right of servitude on the owner of the croft more than 100 years later.  The parties, subject matter and facts on which the decision was made were different in each case.

Personal bar

With regard to personal bar, Lord Turnbull found that, although it was only the Baron’s father’s comments which could found a plea of personal bar (he was the sole proprietor) and the comments relied on were mainly made by his mother, the father’s comments went further than a mere failure to dissent and could be construed as representations regarding access to the croft. As their weight might depend on the nature and detail of the conversation, Lord Turnbull allowed a proof at which Mr Paine would have the opportunity of leading evidence on that aspect of his case on personal bar.

Title to defend

Lord Turnbull also agreed with the Baron’s argument that Mr Paine’s partner had no title to defend the action. As a dispute over the existence of a servitude, the matter was one which concerned only the heritable proprietors of the two properties. Although the partner was a tenant, there was no evidence that the croft was let with a right of servitude in favour of the tenant.

The full judgement is available from Scottish courts here.