Moncrieff v Jamieson [2007] UKHL 42 Case analysis.

This case concerns with the servitude rights under Scottish law. Servitude is right on another property similar to easements. However, Lord Neuberger stated in his judgment, though common law of servitudes in Scotland and common law of easements in England and Wales are not similar in every aspect but they are almost same.[1]  So, the cases, used in this case, are from both jurisdictions.

The importance of the case lies on changing the existing law of servitude in Scotland. This has been a grey area of law for many years. It was assumed that the common law do not recognise the servitude right of parking in Scotland and the courts are not going to increase the class of servitude unless the Parliament decides otherwise. However, the House of Lords in this case has changed this old presumption. Their Lords unanimously decided that a right of parking as servitude can exist under the law of Scotland.

The main point of the case can be defined in just a sentence of Lord Scott, ‘there can be an ancillary right of parking if it is reasonably necessary for the comfortable use and enjoyment of servitude’[2]. The case involves a dispute between two adjacent property owners. The pursuers’ property or dominant tenement is situated at the bottom of a steep slope by the sea. Vehicles cannot be driven onto the property and the only way to access the property is by driving across the defendants’ land from a public road; then walking down by a foot steep escarpment from a gate in defendants’ property or servient tenement. In 1973, the defendant allowed an express grant of access to the pursuers. The grant of access to the dominant property was silent about the route by which it should be exercised. However, it does not pose substantial problem as the dominant proprietor may choose the route over which the servitude is exercisable in any place most commodious for him, but not undue burden for others.[3] In the present case it can be assumed that the parties intended to use the road which runs up to the gate and still clearly visible and available to be used and for the last 20 years the pursuers accessed and parked their vehicles on defendants’ property without any complain until the dispute arose in 1998 about the right of parking vehicles. The defendants argued servitude right of parking is not recognised in Scots law.

Parking as Servitude

Though it is not necessary to decide in the present case whether or not a right of parking can exist as servitude under Scots law but this issue cannot be avoided. If there have to be an ancillary right of parking for servitude right of access, the right of parking vehicles has itself to be recognised by law as an independent servitude. It should not be presumed that servitudes are restricted only to certain known types.

New servitude may arise with the alterations in the progressive society.[4] But it cannot be concluded that Scots law recognises a servitude right of parking independent of any right of access[5] because parking is likely to prevent the sevient owner from using certain part of his land.

According to old law, if a claim for an easement on particular land amounts to virtual possession of the land, if necessary may exclude the owner, then the claim should fail.[6] The right appears for exclusive use of servient land; so incapable of being an easement in law as it is extensive and could not be in the contemplation of the parties that such right would be necessary in future.[7]In such a case the dominant proprietor will have unrestricted use of the land and would leave the servient owner without any reasonable use of his land[8]which will literally amount to adverse possession. This principle was later invoked in Batchelor v Marlow[9]the right to park for such a period prevents the owner of the land from making a reasonable use of it and makes his ownership illusory. Since, it ousts the servient owner from his property it falls foul of ‘ouster principle’ and incapable of being servitude.

Now all kind of easement interferes, at least to some extent, with the enjoyment of the owner. To prevent an easement from falling foul of ouster principle, what degree of use or enjoyment should be left for the owner is the main question here. According to their Lordships there is no fundamental objection to a right being recognised as servitude even if it prevents the servient owner from using part of his property. The ouster principle should rarely have any effect, it should only come into effect where the claimant is claiming unrestricted right to use; courts should not be too ready, at least in parking claims, to find the owner’s use of land has rendered illusory.[10]

According to Lord Scott, the test to decide whether there can be any servitude right is: whether “the purported servitude right is going to put the dominant owner is such occupation of servient land as to bar the servient owner from possession or control of the land”[11]. This indicates if a land can accommodate nine cars there can be servitude of parking up to eight cars.

In 2008, the law commission proposed: a right can be servitude where it is clear and does not involve unrestricted use of servient land. The proposal resembles the principle in Batchelor case than this one. Later, in William Old International Ltd v Arva[12]and Virdi v Chan[13]court held that right under easement must be exercised reasonably and without any undue interference with the servient owner’s enjoyment of his own land.

Ancillary right of parking:

Their Lordships opinions were different in this point. According to Lord Hope, the right of parking as an ancillary of other servitudes can easily be accommodated within established principles. When there is an express grant of an easement there is also grant for such ancillary rights as reasonably necessary to its exercise and enjoyment.[14] It will be sufficient if it can be shown that the right was in the contemplation of the servitude proprietor.[15] He said the test for ancillary right should be whether or not it is necessary for comfortable use and enjoyment of servitude. He thinks the words “necessary” and “comfortable” strikes proper balance between the interests of the servient and dominant proprietors. The servitude right must be construed in a way so that it does not put an undue burden on the servient proprietor but it should not be construed so strictly as to defeat the right granted to the dominant proprietor. Lord Scott emphasised that it should be “reasonably necessary” for the use and enjoyment of access. When it should be on the basis of the surrounding circumstances, it also should be considered what is normal and reasonable in one set of circumstance may not be reasonable in another case. In the particular circumstances of the case it is necessary to have right of parking on the servient tenement for the reasonably incidental use and enjoyment of the dominant property.

Lord Rodger tends to disagree with this test. According to him, an express grant of servitude may carry with it an implied right on the servient land if the right is essential to make the servitude effective or carry out the purpose for which the servitude was granted. This kind of implied rights will put undue burden on the servient tenement and “civiliter doctrine” is not enough to safeguard the servient owner against this.

Lord Neuberger agreed with Lord Hope and Lord Scott but he added an extra requirement with it. He said there can be an ancillary right if it is reasonably necessary for the exercise and enjoyment of servitude and dominant tenement. The main point of having servitude is the reasonable enjoyment of dominant tenement. He emphasised on using the combination of servitude right and dominant tenement. He compared the case with contract law cases where you can imply terms as long as they are necessary and within the contemplation of parties. But it cannot change the literal meaning of the words that indicates the intention of the parties.[16] To specifically decide the degree of ouster is required to resist a right from being servitude would dangerously compromise with party’s’ intention. So, he decides, with reasonable doubt, that there cannot be parking right on a specific space

Although their Lordships could not agree on a specific test in this point of law but they all agreed in the unusual circumstances of the case there should be a servitude right of parking. They based their decision on ancillary right of parking vehicle on the defendants’ property. The implication of the case is that it has increased the possibility of other rights to be existed as an ancillary to servitude if they are necessary for reasonably enjoyment in the particular circumstances. Though, it is likely to be difficult to prove what is reasonably necessary for comfortable use unless the circumstances are quite unusual as Lord Rodger mentioned in his judgment. However it has opened the way for new types of servitudes to be recognised in law. Now, any right of limited use may be capable of being created as servitude, but it should not be assumed that any limited use can be servitude.  Their Lordships have proved again how flexible common law can be where it is required for the changing circumstances of society.

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[1] See paragraph 108,111 & 136 of the judgment.

[2] See Paragraph 52.

[3]Lord Hope

[4]Harvey v Lindsay (1853) 15 D 768

[5]Nationwide Building Society v Walter E Allan Ltd (unreported)

[6]Copeland v Greenhalf[1952] Ch 488, 498.

[7] Grigsby v Melville [1972] 1 WLR 1355.

[8]London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278.

[9][2003] 1 WLR 764.

[10] A Hill-Smith, ‘Rights of parking and the ouster principle after Batchelor v Marlow’ [2007] ConvPL 223, 234.

[11]Lord Scott in Para 47 and 59.

[12] [2009] 2 EGLR 141.

[13] [2008] EWHC 2901 (Ch).

[14] Jones v Pritchard [1908] 1 Ch 630,638.

[15]Ewart v Cochrane (1861) 4 Macq 117.

[16]Waterman v Boyle [2009] EWCA (Civ) 115.

"New Image Rights in Guernsey and Notion of Property"

An individual’s proprietary rights in his personality are often referred as ‘image rights’. These rights give the power of preventing others from making unauthorised use of name, likeness or other personal attributes (such as physical or style characteristics, signatures, nicknames or slogans associated with them). A person can exploit his image rights in different ways, which can be merchandising, product endorsement etc. or simply protect his reputation by not allowing others to use it without authorisation.

In terms of the new position in Guernsey, any personage^[1] will be able to register his one or more image rights. The definition of image in the legislation is relatively wide; it would include names, signatures, characteristics, likeness, gestures, photographs and even illustrations.^[2] The registration will give the person exclusive rights in the registered images, and it can also be used to protect other unregistered images against unauthorised uses by proving that people associate it with the person.^[3] There will be infringement of the protected image if the image has actual or potential value and distinctiveness that can be recognised as being associated with the registered personality by a wide sector of public, which can be in any part of the world.^[4] The registered images will presumably have value and distinctiveness unless the defendant proves otherwise.^[5] The burden is on the defendant to prove it. The infringement can also occur where an image has been used which is identical and confusingly similar to the protected image or similar to protected image and trying to take advantage of its reputation or impairing the distinctiveness of the plaintiff’s image.^[6]  It does not matter whether the unauthorised use is regarding sponsorship, for the purpose of marketing, endorsing, affixing or packaging goods.^[7]

The IRO will allow the claimants to recover such damages which is equivalent to “the actual prejudice the claimant has suffered due to infringement” after considering all the relevant factors.^[8] In deciding the relevant factors, the court will take into account whether the defendant knew or had reasonable ground to know that at the date of infringement the right was registered.^[9] The court will also have the power to award such additional damages as the justice of the case may require after having regard to all the circumstances and seriousness of the infringement,^[10] However, there are some cases where the registered image rights would not be infringed (i.e- fair dealing for the purpose of news report, satire,  honest practice in trade, for the purpose of research, art, temporary copies and for education). ^[11]

To find out whether new image rights in Guernsey match with the notion of property, it is important to know what property is. Usually, property designates to those items which are confined and governed by the rules of property institutions and attributes rights and liabilities on the owner of it.^[12] Property encompasses two functions use of things and allocation of items in of social wealth and it will have two main characteristics- (1) ownership and (2) right to exclude others.^[13] Historically, courts used to consider property as something that can be restored to the dispossessed owner rather simply giving compensation for loss.^[14] In broader sense, property is something that concerns with the ownership of object(s) which can be bought and sold, giving the owner of it exclusive right to exclude others from making any kind of interference with it.^[15] However, physical existence of the object might not be necessary while share in a company is considered as property though the physical existence of share certificate itself values very little.^[16] In addition, something can also be recognised as property if it gives rise to a right of action.^[17] Something can also be property where the owner of it has sufficient control over the use of it.^[18] The protection of image rights may depend mainly in the exclusion of others from interfering with it because the courts in the UK are protective in recognising new aspect of proprietary rights.^[19] So, it can be said, property is ownership or quasi-ownership interest in things (either tangible or intangible) which confers rights over such things to exclude all-comers and rights to gain monetarily form them.^[20]

Now there can be many justifications for recognising image rights as property. It will be ideal to compare the protection of image rights in Guernsey with the notions of property to find out whether they can be accommodated. The common law trespass rule to protect the right of the author should exist there. According to Locke, misappropriation or free-ride on someone’s property amounts to theft or unjust enrichment and should give rise to action in law.^[21] If someone is owner of something, he would have power of transmission, inter vivos or death to another.^[22] The Ordinance has recognised image rights as proprietary rights^[23] and the image rights can be considered as property for many reasons. Where, Fraser provides his justification for proprietary right in image on the basis of economic value of those.^[24] But rights on a fictional character and rights on your own personality may be different in some aspects. There may be some rights which do not have any substantial market value but very important to the person (i.e. right of privacy). So, some may disagree with this notion of property. Jeffy argued, though images may generate considerable financial benefits, it should not automatically infer a proprietary right on those.^[25] The value on someone’s image comes from wide public acceptance rather from any specific labour, skill or investment by the person.^[26] However, Fraser contests this argument, according to him commercial value of image can be a by-product of public acceptance but it might have taken considerable investment of time and efforts to get this acceptance, and that should justify control over it or exploitation of it.^[27]

Most of the image rights in Guernsey will certainly have monetary value which can be assigned and licenced. Hiring a car can be a good example of this, where the person who is renting the car has right to use it reasonably but the ownership is not transferred to him and the car is still a property to the owner. Similarly, image right can be licenced to people giving them right to use it but would not get exclusive right of ownership. Although, licencing might be limited in some cases but it is allowed for most of the image rights and licencing will bind the successors in title.^[28] Image rights will be registered like other real properties or trade mark.^[29] It is personal or moveable property^[30], and it can be assigned in the similar way.^[31] There also can be co-ownership of image rights by two or more persons jointly or by a group^[32], which can be replaced by another person when co-owned by a group^[33]. Another important aspect of property is taxability and ability to licence the property.^[34] What is certainly allowed by the new legislation of Guernsey.

 

The new legislation in Guernsey has changed this perception where anyone can register their images and get for protection for those. It has certainly expanded the scope of protection by giving the registered person exclusive right and control over but there is any case yet to come to the court to see its potential. The legislation has codified the image rights, and it has also classified the infringements when it will automatically give rise to right of action. However, the scope of exception is still wide enough to justify many breaches of image rights, which might question the exclusive control on property as the person would not be able to resist trespassing into his property. On the other hand, registration of the rights has given the person ownership on those rights. Just like real properties, a person can assign, licence or transfer it during his life time and can automatically bind the successors in title. All these qualify saying that image rights match with the notion of the property unless there is any justification for trespassing.

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[1] The Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (IRO) s.1 A natural or legal person including such person(s) who has died within last 100 years or any two or more persons who are perceived to be intrinsically linked or who are perceived to be linked in a common purpose and who form a group or any fictional human character.

[2] The Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (IRO), s.3(1)

[3] http://www.taylorwessing.com/download/article_guernsey_image_rights.html (accessed 27/02/13).

[4] IRO s.28(1)&(2)

[5] IRO s.28(3)

[6] IRO s.27(1)

[7] IRO s.27(4)

[8] IRO s.49(2)(a)

[9] IRO s.49(1)

[10] IRO s.49(3)

[11] The Image Rights (Bailiwick of Guernsey) Ordinance, 2012. S.31

[12] C Harpum & Others, The Law of Real Property (7^th ed. Sweet & Maxwell, 2008) p.2, 1-002.

[13] JW Harris, Property and Justice (OUP, Oxford 1996) pp.4&5.

[14] C Harpum & Others, The Law of Real Property (7^th ed. Sweet & Maxwell, 2008)p.6, 1-011 (though it later recognised the interests on land is also real property, page-7)

[15] R Smith, Property Law (7^th ed. Longman Pearson, Essex 2011) p.3-5.

[16] Ibid p.4

[17] Ibid p.5 (money in a bank account can be good example of it)

[18] Yearworth v North Bristol NHS [2010] QB 1 para-25, 45, 60.  In this case, Y claims against N for damaging his semen by careless storage. The question before the court was whether semen should be considered as property or not. The court ruled where it was deliberately produced for using later and the claimant had sufficient control over its use or destruction it should be considered as property and he is entitle to damages.

[19] As above 51, p.6 para-1&2.

[20] JW Harris, Property and Justice (OUP, Oxford 1996) p.137

[21] C Colston & J Galloway, Modern Intellectual Property Law (3^rd ed. Routledge, Abingdon 2010)p.736

[22] JW Harris, Property and Justice (OUP, Oxford 1996) p.46.

[23] IRO ss.5(1) & 110

[24] Ibid, p.737

[25] P Jaffey, ‘Merchandising and the Law of Trade Marks’ [1998] IPQ 240.

[26] A Story, ‘Owning Diana: From People’s Princess to Private Property’ [1998] 5 Web JCLI, http://webjcli.ncl.ac.uk/1998/issue5/story5.html (accessed 28/02/13)

[27]As above No.57 p.737 para 4.

[28] IRO s.61

[29] IRO s.1(1)(e)

[30] IRO s.51(1)

[31] IRO s.52(1)&(2).

[32] IRO ss.53, 54 &55.

[33] IRO s.1(3)&(4).

[34] JW Harris, Property and Justice (OUP, Oxford 1996) p.140, para3.

New Visa regulation and its impact on the UK

Historically, the United Kingdom has been known worldwide for the quality of their higher education. It is the second most popular destination for the prospective students who are willing to get higher education from abroad. For years, students have been coming here to full-fill their ambition of getting a British degree with some relevant work experience. For many courses, UK is the first choice for students. i.e. law.

In the past years, students had the opportunity of getting a 2years work-permit visa after finishing their higher education. The main purpose was to allow students getting some work experience before they return to their country. However, the UK government has abolished this visa in April last year. The main reasons for the government to implement this policy is- the gov election manifesto to reduce immigration by tens of thousands and there were substantial abuse of this opportunity by the non- EU students.

In the point of reducing immigration, there may have been different approach, because not necessarily the immigrants are students. There are hundreds, if not thousands, of immigrants who are not students. They came in this country under different working visas. After all, the 2 years work-permit visa was for the non-EU students as EU students don't need any visa to stay and work in the UK. And, in the last years, hundreds of European immigrants came in the UK. So, different immigration policy would have been more effective to reduce immigration because there is no guarantee to be immigrant in this country.

Students came in this country with their student visas not the work permit visas. When it is said about misuse of visas it should be student visas, where students were not studying properly but working only. Now, if a student is not studying sincerely then he is likely to end up with bad result which can be used to qualify for the work-permit visa. If not, students are producing good results even after working should be appreciated, it won't encourage others to follow them.

International higher education has become a big financial market. It is estimated that non-EU students generate 5 billion pound annually in the UK economy. It is a market where competition is becoming fierce among many countries (especially western countries) to draw the attention of prospective students. There used to be around 30000 students every year from India alone and thousands more from China, South-East Asians, middle-east and central Africa. Since the introduction of new regulation there is reported to be more than 40% drop in application from non-eu students. University of Wolverhampton reported 70% drop of indian students this year. This drop of non-eu students have forced many educational institutions to go bankrupt and contributed to the closure of more than 30% of educational industries both here in the UK and abroad.

The government is arguing that there is still opportunity for genuine students to get a work-permit visa in the new policy. Under the new visa policy students can apply for work-permit visa after finishing their education if they can show that they got a job with a salary more than £20000. The gov is saying it is normal graduate level job salary. Needless to ask, how many students can start their profession with a salary of this amount, where I can say as a trainee solicitor you get just £17000.

It is not only undermining the country's position as a popular study destination but it may allow other countries to divert substantial portion toward them. The impact is not just economic but overall quality of education in the competitive market and the adverse effect on native students, who are the next generation of the country. It may play an important role in the privatisation of most of the top educational institutions, if it ever to happen in the upcoming years.