Adam Riley (instructed by Burnetts Solicitors LLP) for the 4th Defendant
Mr Justice Adam Johnson:
Introduction & Background
This case raises an interesting question about jurisdiction.
At its heart is an unusual body referred to as the “Body of Trustees for the Urr Navigation in the Stewartry of Kirkcudbright.” Kirkcudbright is in Dumfries and Galloway in Scotland. As I will explain further below, the “Urr Navigation” comprises a harbour area on the River Urr and part of the estuary thereof, including any piers quays or wharves.
A “Body of Trustees” for the Urr Navigation was created by means of the Urr Navigation Order 1901. I will refer to this as the “1901 Order”. I will explain the background to the 1901 Order further below. It is obviously an historic instrument, but research by the parties indicates it has never been expressly repealed or varied since it came into force.
The 1901 Order described itself as an Order:
“For incorporating a Body of Trustees for the URR NAVIGATION in the Stewartry of KIRKCUDBRIGHT and for the improvement maintenance and regulation of the Navigation.”
Paragraph 4 of the 1901 Order, immediately under the heading “INCORPORATION AND CONSTITUTION OF TRUSTEES”, reads as follows:
“4. For the purpose of carrying this Order into execution there shall be a body of Trustees not exceeding twelve in number constituted as provided in this Order and those Trustees are hereby incorporated by the name of the Urr Navigation Trustees and by that name shall be a body corporate with perpetual succession and a common seal and with power to sue and be sued and to purchase take lease hold and dispose of land and other property for the purposes of but subject to the restrictions of this Order.”
In what follows, I will refer to the “Urr Navigation Trustees” by the abbreviation “UNT”. As the parties have explained it to me, the Urr Navigation is an example of a “trust port”. Again, I shall explain the concept a little further below.
From the limited documents I have available, it seems that the River Urr was a busy shipping lane for about 50 years after the 1901 Order came into effect. Over time, however, maritime trade declined. It appears the UNT may also have been neglected, at least during some periods. There is some correspondence suggesting it may have been regarded as defunct by about 2012. What is then said to have happened is that in about 2021, a group of individuals claiming to represent the UNT unlawfully transferred mooring income to an organisation known as the Kippford and Rockliffe Moorings Association (“KARMA”). At about the same time, steps were also taken to transfer certain of the UNT’s property – an area known as Barlochan Port at Palnackie Harbour – to a Scottish entity known as the Buittle Quest Scottish Charitable Incorporated Organisation (“Buittle Quest”).
These events are at the heart of the present claim. In about 2022 yet a further body of individuals claiming to represent the UNT came to be constituted. As I understand it, they are among the present Claimants, although the key protagonist is Mr Scott, who described himself as a beneficiary of the UNT. In his Witness Statement Mr Scott said that he had added the other Claimants to the Claim as a formality since they agreed with the claim and (in effect) needed to be bound by the outcome, but they were not themselves making “a formal claim to the Court”. Be that as it may, for now I will refer simply to “the Claimants”. The intended claim is essentially that the individuals who earlier acted to transfer mooring income and property away from the UNT, were acting unlawfully and in breach of duty when they did so. Those individuals are the intended Defendants. Amongst other relief, the Claimants seek an account of the mooring income which they say is rightfully the property of the UNT, not KARMA, and a declaration that the transfer to Buittle Quest was undertaken without authority, and without proper consultation, and is thus void and/or liable to be rescinded. There is also a discrete allegation that one of the individuals who approved the transfer to Buittle Quest, a Ms Erica Johnson, was misled into doing so.
A Part 8 Claim Form was issued in this Court by Mr Scott on 31 October 2023. There are six Defendants. Only one, Mr James Smith (Defendant 4) has filed an Acknowledgment of Service, but he has also issued an application seeking to challenge the English Court’s jurisdiction and/or for a stay of proceedings on forum non conveniens grounds (i.e., on the basis that even if the English Courts do have jurisdiction, they should not exercise it, because the Scottish Courts are also an available forum and are clearly the more appropriate forum given the nature of the dispute).
None of the other Defendants (i.e., Defendants 1-3 and 5-6) has filed an Acknowledgement of Service or otherwise entered an appearance in the proceedings.
Continue reading this Judgment here.
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