Moncrieff -v- Jamieson : House of Lords
Lords Hope, Mance, Neuberger, Rodger, and Scott issued the judgment of House of Lords on 17 October 2007 unanimously in favour of the Moncrieffs.
In so doing they considered not only the question of a right to park as ancillary to a servitude right of access but also the question of whether you could have a free-standing servitude right to park. A majority of the Law Lords thought you could thus allowing car parking to join the list of ‘known’ servitudes in Scots Law.
Iain G. Mitchell QC commented:-
“This case is hugely important for the law of both Scotland and England. Lawyers have been arguing for years over whether there is such a thing as a servitude or easement of parking, and, indeed, in Scotland, it had become received wisdom that the common law would never recognise any new servitudes beyond those which are already recognised.
In this judgment, the House of Lords has now recognised that there is a servitude of parking in Scotland and an easement of parking in England, and, at the same time, by doing so, the House of Lords has turned the received wisdom on its head.
The Scottish Parliament recently legislated on the recommendation of the Scottish Law Commission to open up what the Commission thought was a closed list of servitudes by providing for a statutory means of creating servitudes, but in light of this decision, we can see that the legislation may not have been necessary - the common law has once again proved itself to be flexible and adaptable to modern life. It will be very helpful for people whose cases do not fit within the narrow requirements for the statutory servitudes.”
Jimmy Moncrieff said:-
“Well we are obviously delighted that the House of Lords found unanimously in our favour. Five judges and no dissenting judges and that is a tremendous decision. It’s a vindication of our position and our rights to access and parking at our house but it has gone on far far too long. Its 9 years and has been a tremendous financial and personal cost but at least justice has been done at the end of the day”.
For advice on servitude rights or parking law contact Brian Inkster on 0141 229 0880 or send Brian an e-mail.