AUDREY CANNING AGAINST GLASGOW CALEDONIAN UNIVERSITY AND DEMOCRATIC LEFT SCOTLAND
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2015] SC GLA 75
A359/14
JUDGMENT OF SHERIFF S REID, Esq
in the cause
AUDREY CANNING
Pursuer
against
GLASGOW CALEDONIAN UNIVERSITY
First Defender
and
DEMOCRATIC LEFT SCOTLAND
Second Defender
Act: Mr Rooney, Jones Whyte Law, Glasgow
Alt (2nd Defender): Ms Connor, Naftalin Duncan & Co, Glasgow
GLASGOW, 14th December 2015. The sheriff, having resumed consideration of the cause, FINDS IN FACT
(1) William Gallacher (“Willie Gallacher”) was a founding member of the Communist Party of Great Britain (“the CPGB”) and a figure of considerable repute within the Scottish labour and trade union movement.
(2) During his lifetime Willie Gallacher amassed a collection of books, pamphlets, photographs and other documents relating to Scottish working class history and left-wing politics.
(3) Following his death in 1965 the collection was designated by his executors as the William Gallacher Memorial Library (“the library”) and in 1968 it was gifted by the executors to the CPGB.
(4) Between 1968 and 2013 the library was augmented by acquisitions, donations and deposits reflecting a similar historical interest and political ideology.
(5) By 1979 the library comprised approximately 2,300 books and fifty boxes of pamphlets and other materials.
(6) In 1979 the library was relocated to rented premises in Carlton Place, Glasgow, occupied by the CPGB, and was re-named the “Scottish Communist Party Library”.
(7) In 1979 the pursuer came to act as a part-time volunteer librarian for the CPGB, initially assisting the then principal librarian (Bob Saunders) with the care of the library.
(8) From around 1980 (following the retirement of the principal librarian) until May 1987 the pursuer, with the full knowledge and consent of the CPGB, acted as the librarian of the library, on a part-time voluntary basis, with sole responsibility for the care, control, management and promotion of the library.
(9) Between around 1980 and May 1987 the pursuer reported and was accountable to the Scottish committee of the CPGB, latterly to Jack Ashton as the secretary of the said Scottish committee, regarding the discharge of her duties as librarian of the library; and, in turn, the Scottish committee reported and was accountable to the executive committee of the CPGB, based in London, regarding its activities (including in relation to the care of the library).
(10) The pursuer had sole charge of a modest library fund which was applied by the pursuer for the care, maintenance and promotion of the library.
(11) The library fund was derived, in part, from occasional contributions by the CPGB, its members and other benefactors, and, in part, from the proceeds of sale of surplus documents from within the collection.
(12) In or around April 1987 the CPGB, which was then experiencing substantial financial difficulties and internal factional conflict, required to vacate the Carlton Place premises as a matter of urgency, due to the imminent termination of the lease.
(13) At about this time the pursuer, as librarian, was advised by Jack Ashton of the urgent need to vacate the premises and of the failure of the Scottish committee, up to that point, to identify suitable alterative accommodation for the library.
(14) The pursuer was concerned that the library might be abandoned and left within the soon-to-be vacated Carlton Place premises, if suitable alternative accommodation for the library was not identified.
(15) On her own initiative, in or around late April 1987 the pursuer contacted the Scottish Trades Union Congress (“the STUC”) and procured its agreement for the library to be housed in the basement of the STUC’s headquarters in Woodlands Terrace, Glasgow, and for the pursuer to be provided with accommodation and facilities there in order to continue her voluntary work in the care, control, management and promotion of the library.
(16) One of the conditions attached to the STUC’s agreement to house the collection was that the name of the library would require to be changed from the Scottish Communist Party Library.
(17) In her discussions with the STUC in around April 1987, the pursuer proposed, and the STUC agreed, that the library would revert to its original designation, namely the William Gallacher Memorial Library.
(18) In or around early May 1987 the pursuer reported to Jack Ashton regarding the events narrated in findings-in-fact (15), (16) and (17); Mr Ashton was greatly relieved that suitable alternative accommodation had been identified for the library; and he authorised the pursuer to remove the library and all equipment ancillary thereto from the Carlton Place premises, and to relocate it to the STUC headquarters, on the terms agreed by her, for safekeeping under her custody, care and control.
(19) In or around the week commencing 8 May 1987, just a few days prior to the CPGB vacating the Carlton Place premises, the pursuer, assisted by her husband (Eric Canning), personally removed the entire library (and related shelving) from the premises and relocated it to the STUC’s headquarters in Woodlands Terrace.
(20) The pursuer hired a removal van to carry the library and shelving to the STUC premises, the cost of which was disbursed from the library fund held by the pursuer.
(21) The foregoing removal and relocation by the pursuer was carried out with the full knowledge, consent and authority of Jack Ashton, in his capacity as secretary of the Scottish committee of the CPGB; and, in due course, with the knowledge and approval of the Scottish Committee of the CPGB, to whom Mr Ashton reported; and, in due course, with the knowledge and approval of the executive committee of the CPGB in London, to whom the Scottish committee reported.
(22) From 1987 to November 1991, with the knowledge and acquiescence of the CPGB’s Scottish committee and executive committee, the pursuer continued in her role as the sole librarian of the library, working on a part-time voluntary basis, from the basement of the STUC headquarters, with sole responsibility for the care, control, management and promotion of the library.
(23) In or around November 1991 the members of the CPGB voted to dissolve the CPGB and to assign the whole rights, property and assets of the CPGB to an unincorporated political association called Democratic Left (“DL”).
(24) In or around November 1991, DL was established.
(25) The pursuer was a member of the CPGB from 1951 until its dissolution in November 1991, from which latter date she ceased to have membership of any political association.
(26) In early 1997 the STUC advised the pursuer that it intended to relocate to new premises and that it would be unable to provide accommodation to house the library in those new premises.
(27) As a result, again on her own initiative, the pursuer made enquiries to identify suitable alternative accommodation for the library.
(28) In or around February 1997, following discussions between the pursuer and John Powles, collections manager for Glasgow Caledonian University (“GCU”), the pursuer procured the agreement of GCU for the library to be relocated to and housed in the premises of GCU (within its special collections department), and for the pursuer to be provided with accommodation and facilities there in order to continue her voluntary work in the care, control, management and promotion of the library.
(29) In around November 1997 the pursuer arranged for the library to be removed from the STUC’s premises and relocated to and housed within the special collections department of GCU, under her ongoing care, control and management.
(30) Items 5/1 & 5/2 of process are true copies of, respectively, letters dated 6 February 1997 and 19 November 1997 from GCU to the pursuer, which letters accurately record the terms upon which the pursuer and GCU agreed to house the library and to provide accommodation and facilities for the pursuer as librarian thereof.
(31) In terms of the agreement between the pursuer and GCU, it was expressly agreed inter alia (i) that GCU assumed no role in, or responsibility for, any management or financial decisions concerning the library, including any decision concerning acquisitions; and (ii) that no part of the library was to be removed from the GCU premises without the permission of the pursuer as librarian thereof.
(32) From around November 1997 until around May 2013 the pursuer continued to act as the librarian of the library, working on a part-time voluntary basis from accommodation within GCU, with sole responsibility for the care, control, management and promotion of the library, albeit assisted from time to time by the University’s staff.
(33) Between around March 1992 and May 1998, certain members of DL met, from time to time, in unincorporated groups operating within the federal structure and constitution of DL; the members of one such group (which included Douglas Chalmers) designed themselves as “Democratic Left Scotland”; and this particular group (designed as “Democratic Left Scotland”) formed part of DL.
(34) Items 6/7 and 6/8 of process are true copies of, respectively, letters dated 8 October and 16 October 1997 between Douglas Chalmers (on behalf of the group then designed as “Democratic Left Scotland”, as referred to in finding-in-fact (33)) and the pursuer.
(35) In or around May 1998 the second defender was established as an unincorporated political association distinct from and independent of DL.
(36) In around 1999 the members of DL voted to dissolve DL and to assign the whole rights, property and assets of DL to an unincorporated political association called “New Times Network”.
(37) In around 1999 NTN was established.
(38) In around 1999/2000 the second defender received a financial settlement of £60,000 from NTN; and, with the consent of trustees for NTN, judicial sanction was sought and obtained by the second defender from the Court of Session, Edinburgh for the transfer to trustees for the second defender of title to heritable property located in Bathgate, Scotland (title to which, at that time, remained formally vested in trustees for the CPGB).
(39) In early 2013, in contemplation of her retirement, the pursuer became concerned about arrangements for the future care and safe-keeping of the library; and GCU, having been advised of the pursuer’s intention to retire, also turned its attention to such arrangements.
(40) In May 2013 a dispute arose between the pursuer and the second defender as to the ownership of the library, whereupon GCU excluded the pursuer from the library and closed the library to the public pending resolution of the dispute.
(41) Between 1979 and 1991 the pursuer believed that the CPGB was the owner of the library (excluding such parts of it as were held merely on deposit for third parties).
(42) For a period between around 1997 and 2013 the pursuer believed that the second defender was the owner of the library (excluding such parts of it as were held merely on deposit for third parties).
(43) Between 1979 and May 2013 the pursuer never believed that she was the owner of the library or any part of it.
(44) From the date of the library’s relocation to the STUC premises until the date of dissolution of the CPGB, the CPGB disclosed neither to the pursuer nor to the STUC any proprietorial interest in or claim upon the library or any part of it.
(45) Between 1991 and 1999 DL disclosed neither to the pursuer nor to the STUC nor to GCU any proprietorial interest in or claim upon the library or any part of it.
(46) In October 1997 the unincorporated group then designed as “Democratic Left Scotland” (as referred to in finding-in-fact (33)), which group then formed part of DL, disclosed to the pursuer a purported proprietorial claim to part of the library.
(47) From around 1999 onwards NTN disclosed neither to the pursuer nor to GCU any proprietorial interest in or claim upon the library or any part of it.
(48) Apart from the pursuer and the second defender, no other person has intimated any claim upon or interest in the library or any part of it.
FINDS IN FACT AND IN LAW
(1) From 1968 until around late 1991, the library was owned by office-bearers of the executive committee of the CPGB as trustees for the CPGB.
(2) The library was not abandoned by the trustees for the CPGB in 1987 or at any time thereafter.
(3) In or around late 1991 ownership of the library was assigned by the trustees for the CPGB to trustees for DL.
(4) From around late 1991 until around 1999, the library was owned by office-bearers of the executive committee of DL as trustees for DL.
(5) In or around 1999 ownership of the library was assigned by the trustees for DL to trustees for NTN.
(6) From around 1999 to a date as yet unknown the library was owned by trustees for NTN.
(7) The pursuer has failed to establish ownership of the library or any part thereof.
(8) The second defender has failed to establish ownership of the library or any part thereof.
(9) In or around May 1987 the trustees for CPGB authorised and consented to the transfer of the library into the sole care, control and custody of the pursuer for safe-keeping by her qua depositary.
(10) Between around May 1987 and May 2013 the pursuer qua depositary exercised sole care, control and custody of the library.
(11) The rights and obligations of the pursuer qua depositary of the library have not been terminated or discharged by the owner of the library.
(12) The pursuer qua depositary was and remains obliged to take reasonable care in the safe-keeping of the library and to restore it to the owner upon demand.
(13) The pursuer qua depositary was and remains entitled to exercise sole care, control and custody of the library.
FINDS IN LAW
(1) The second defender having failed to establish that it is the owner of the library or any part thereof is not entitled to be ranked and preferred upon the fund in medio.
(2) The pursuer qua depositary of the library is entitled, to that extent, to be ranked and preferred upon the fund in medio.
(3) The pursuer qua depositary of the library is entitled, to that extent, to decree of delivery as craved.
ACCORDINGLY, Sustains the plea-in-law for the pursuer; Repels the plea-in-law for the second defender; Ranks and Prefers the pursuer qua depositary upon the fund in medio; Grants decree against Glasgow Caledonian University, Cowcaddens Road, Glasgow G4 0BA for delivery to the pursuer qua depositary of the fund in medio, namely the contents of the William Gallacher Memorial Library all as more particularly described in paragraph 2 of the first defender’s condescendence of the fund in medio and related inventory (item 8 of process); meantime, Reserves the issue of expenses and appoints parties to be heard thereon at a hearing before Sheriff Reid on 16 December 2015 at 2pm.
SHERIFF
NOTE:
Summary
[1] William Gallacher (“Willie Gallacher”) was a Scottish trade unionist and communist politician. He was one of the leading figures of the shop stewards’ movement in war-time Glasgow and a founding member of the Communist Party of Great Britain (“the CPGB”). In 1935, he became the first communist to be elected to the House of Commons independently of Labour Party endorsement; he is one of only three communists ever to be so elected; and, having served for 15 years as the member of parliament for West Fife, the loss of his seat in the 1950 general election marked the end of independently-elected communist representation in the Commons to this day. He died on 12 August 1965.
[2] During his lifetime, Willie Gallacher amassed a collection of books, pamphlets, photographs and other documents relating to the Scottish socialist and trade union movement. Following his death, the collection was designated by his executors as the William Gallacher Memorial Library and, in 1968, was gifted by them to the CPGB.
[3] Over the following four decades, the collection was augmented by donations, deposits and acquisitions reflecting a similar historical interest and political ideology. It grew rapidly in size and repute.
[4] During that period, the collection was moved to various locations, occasionally in circumstances of urgency and peril. It is presently housed within the special collections department of Glasgow Caledonian University.
[5] In 2013, a dispute arose as to the ownership of the collection.
[6] In this action of multiple poinding, there are two competing proprietorial claims to the library. On the one hand, Mrs Audrey Canning, the diligent and faithful volunteer librarian, who has devoted much of her life to the care of the collection, claims ownership. On the other hand, an unincorporated political association known as Democratic Left Scotland, which claims to be the political successor of the CPGB (or at least of the Scottish Committee of the CPGB), also asserts ownership. Glasgow Caledonian University, which houses the library, asserts no right or interest in it.
[7] The collection has been closed to the public since around May 2013, pending resolution of the present dispute.
The evidence
[8] The pursuer gave evidence on her own account. In addition, I heard evidence from Eric Canning (the pursuer’s husband); John Powles (a former employee of Glasgow Caledonian University); and Thomas McLennan (the current chairperson of the Scottish Labour History Society).
[9] For the second defender, I heard evidence from Douglas Chalmers (the current convener of Democratic Left Scotland (“DLS”) and a senior lecturer at Glasgow Caledonian University); Mhairi McGowan (a “non-active” member of DLS); Carol McCallum (an archivist at Glasgow Caledonian University); and Professor William Thompson (a member of DLS and retired academic).
Audrey Canning
[10] For 34 years, from 1979 until May 2013, Audrey Canning (79) was the part-time volunteer librarian to the William Gallagher Memorial Library. She described the history of the library and her association with it.
[11] She testified that the library includes the core personal collection of the late Willie Gallacher, together with items subsequently purchased, deposited, loaned and gifted by third parties, with resulting ownership conundrums. She also distinguished the CPGB archives from the personal collection forming the core of the library.
[12] She spoke to the chaotic circumstances of the relocation of the library in 1987 from the CPGB’s rented premises in Carlton Place, Glasgow to the Glasgow headquarters of the Scottish Trades Union Congress (“STUC”) (“the 1987 relocation”). The CPGB was said then to be riven with internal factional conflict; it had run out of money; it was facing eviction from Carlton Place; and Mrs Canning had been left unaided to find a safe haven for the library. She found a safe sanctuary (with the STUC); she reported to Jack Ashton (the then secretary of the Scottish committee of the CPGB); and with his full knowledge and approval, she boxed up, removed and relocated the entire library. She testified that the library would have been abandoned, but for her intervention.
[13] Between 1987 and 1991 she had sole responsibility for the care and operation of the library. In 1991, the CPGB was dissolved and its assets were said to have been transferred to a new political association called Democratic Left (“DL”).
[14] In 1997, the library was relocated again, this time from the STUC premises to Glasgow Caledonian University (“the 1997 relocation”). She spoke to the circumstances of the 1997 relocation.
[15] In 2012, in contemplation of her retirement, she became increasingly concerned about arrangements for the future care of the library. A dispute emerged with the second defender as to ownership of the library. Relations with the University deteriorated, resulting in her de facto suspension in May 2013.
[16] She spoke to her understanding of the proprietorial interests in the library over the years. For a period she believed that an association calling itself “Democratic Left Scotland” was both the political successor to the Scottish committee of the CPGB and the owner of the library, but she claimed to have been “misled” into that assumption.
[17] She disputed the second defender’s proprietorial claim. She spoke of her own intentions for the library if her claim was successful.
[18] In cross-examination, she was challenged regarding the alleged abandonment of the library in 1987, on her political affiliations and motivations, and on her previous apparent admissions that Democratic Left Scotland was the owner of the library. She acknowledged that DL (not the second defender) was the constitutional successor to the CPGB, and fell heir to all the archives and records of the CPGB, which archival material had merely been deposited in the library. She said she was “absolutely amazed” to be advised by solicitors in 2013 that she may be the owner of the library. She considered that an entity calling itself “Democratic Left Scotland” might have operated as a branch of DL prior to 1998, but that the second defender was not constituted as an independent entity until 1998.
Eric Canning
[19] Francis Eric Canning (80), the pursuer’s husband, is a retired architect. They have been married for 56 years.
[20] He spoke to his wife’s lengthy involvement from 1979 as a part-time volunteer librarian to the library through successive changes of name and location. He considered that prior to the 1987 relocation no individual or organisation owned the library: it was “the common property of the trade union movement”.
[21] He spoke to his recollection of the 1987 relocation. The library was “going to be left behind”. He spoke to the pursuer’s key role in re-housing (and re-naming) the library. He assisted his wife in packing up the library and transporting it to the basement of the STUC. The pursuer looked after the library for the following 10 years, with no involvement from CPGB. The collection flourished.
[22] He spoke to the creation of the Communist Party of Britain in 1987 at a time of mass expulsions from the CPGB; the dissolution of the CPGB and establishment of DL in November 1991; the creation of the Communist Party of Scotland in mid-January 1992 (of which Mr Canning was a founding member, holding office sometime later); and the creation of the second defender, as a separate entity from DL, in 1998. He acknowledged that there may have been a Scottish branch of DL prior to 1998 (perhaps even calling itself “Democratic Left Scotland”), but it was not an autonomous entity. He acknowledged that DL became the constitutional successor to CPGB in 1991. He disputed that the library formed part of the assets of CPGB or DL in 1991, still less of the second defender (which, he insisted, only came into existence in 1998).
[23] He spoke to the circumstances of the 1997 relocation, in terms broadly reflecting the pursuer’s evidence.
[24] Mr Canning supported his wife’s claim, though his evidence fluctuated. He did not support a claim for her to “personally own the collection” but rather to “take it into a proper housing that was not in the control of any political faction”; he then testified that the pursuer was the “de facto owner”, and subsequently the “rightful owner”, and later that she was the person most responsible to secure the future of the library.
[25] In cross-examination, Mr Canning was also challenged on the assertion that the library had been abandoned upon the 1987 relocation. His political allegiances and motivations were also questioned.
John Powles
[26] John Albert Powles (65), retired, was employed in various roles by Glasgow Caledonian University (“GCU”) between 1985 and 2010, latterly as research collections manager. He worked with the pursuer from 1997 until his retirement in 2010.
[27] He spoke to the circumstances in which, in 1997, the library came to be transferred to GCU from the STUC. He had a direct and primary role in negotiating and implementing the 1997 relocation. He spoke to the correspondence between the pursuer and GCU recording the terms upon which GCU had agreed to house the library. He conceded that the issue of ownership was “not at the forefront” of his or anyone’s mind at that time; questions concerning the provenance of specialist archives, such as the library, were often very difficult; but he had felt assured that the pursuer had the necessary authority and knowledge to deal with the 1997 relocation.
[28] GCU dealt exclusively with the pursuer in relation to the 1997 relocation and subsequent operation of the library. As far as he was aware, there had been no discussions between GCU and DL (or any entity calling itself Democratic Left Scotland, or specifically with Douglas Chalmers) regarding the care of the library between 1997 and 2010 (when he retired). He was aware that Mr Chalmers was a GCU employee during that period.
[29] He was complimentary of the pursuer, commended her contribution to the library, but knew nothing of her intentions regarding its future.
[30] In cross-examination, he acknowledged having received a handwritten letter from the pursuer (item 9, second defender’s second inventory), while he was employed by GCU, bearing to identify an entity called Democratic Left Scotland as “the legal owners of the original collection”. He testified that in the field of library management items can be deposited with or without accompanying transfer of ownership, and with or without a formal deposit agreement. This library was said to be “an extremely complex hierarchy of collections”, with an intricate set of possible owners and depositors. He had never clarified who actually owned all or part of the collection. He explained his role as being to “conserve material, to make it available for research”. Issues of ownership were secondary to him. He did not have definitive view on ownership.
Thomas Alastair Stewart McLennan
[31] Thomas Alastair Stewart McLennan (64), retired, is the current chair of the Scottish Labour History Society. He has attended the Society’s conferences for 36 years, has been a member of the Society’s committee for 33 years and has held the chair since 2008. The Society was founded by academics and amateur historians in the labour movement to preserve and promote labour history as a distinct field in historical study. [32] He testified that the pursuer has been a member of the Society’s Committee for the last 25 years. He had previously known her due to his frequent attendance at the library at Carlton Place, Glasgow for research purposes. He had no direct involvement in the 1987 relocation. He spoke to “common knowledge” of the circumstances surrounding that move, namely that the CPGB premises required to be “evacuated” in great haste in 1987; that the pursuer and her husband physically transferred the entire library to its next “resting place” with the STUC; and that, but for their intervention, the library “would possibly have been abandoned”.
[33] He spoke to the flow chart (item 1, second defender’s first inventory) bearing to record the history and fragmentation of the CPGB. He described himself as being well acquainted with the circumstances of the dissolution of the CPGB in 1991. He testified that the CPGB was dissolved, and ceased to exist, in 1991; a number of other associations emerged, at varying times, from that dissolution (the first being DL, another, shortly thereafter, being the Communist Party of Scotland); but that the second defender, as an autonomous association, was not established until 1998.
[34] He had no prior knowledge, or involvement in the drafting, of the “resolution” document (item 19, second defender’s fourth inventory) purportedly transferring assets from the CPGB to DL. He criticised the second defender’s claim of ownership as “preposterous” and unvouched. He criticised the failure of GCU to clarify the provenance of the library at an earlier stage.
[35] In cross-examination his impartiality was questioned. He also opined that the pursuer, while she may not be the owner, had a “prior claim to custodianship”.
Douglas Chalmers
[36] Douglas Chalmers (57) is a member and current convener of a political association called Democratic Left Scotland (“DLS”). He is also employed by GCU as a senior lecturer in media and journalism.
[37] He spoke to the history of his political affiliations and various offices held by him. In 1987 he was the Scottish “organiser” of the Scottish committee of the CPGB and subsequently became Scottish secretary. By the date of dissolution of the CPGB the Scottish committee was said to have become increasingly autonomous “though leadership remained in London”. When DL was formed, Mr Chalmers “continued in post as convener” of a group now calling itself “Democratic Left Scotland” albeit within, and forming “part of”, DL. He described the situation as involving “total continuity in Scotland”. He acknowledged that DL and the group calling itself Democratic Left Scotland were “linked financially”. In 1999, when DL decided to re-constitute itself as New Times Network (“NTN”) in England and Wales, the second defender (“DLS”) was established as an autonomous organisation independent of DL. This separation was said to be “relatively amicable”, with DLS receiving, in due course, £65,000 in cash from NTN together with transfer of title to heritable property in Bathgate, West Lothian. The library was not mentioned in that settlement because, he said, its ownership was not in dispute. He adopted the terms of the flowchart (item 1, second defender’s second inventory) bearing to depict the history of the CPGB fragmentation.
[38] Mr Chalmers spoke to a document that he called the DL “constitution” and an asset transfer “resolution” document (items 18 and 19, second defender’s fourth inventory), both of which were drafted by the CPGB and approved by majority vote of the CPGB members at the dissolution Congress in November 1991.
[39] He spoke to his recollection of the 1987 and 1997 relocations. He said the pursuer had always acknowledged that the second defender owned “the core of the library.” He conceded that other parts of the library may be owned by third party depositors.
[40] In cross-examination, Mr Chalmers was challenged to clarify the mechanism by which ownership of assets was said to have transferred from the CPGB to the second defender. He referred (for the first time in his testimony) to clause 5.d of the DL “constitution” (item 18, second defender’s fourth inventory). He testified that once DLS had constituted itself as a “national organisation” in terms of clause 5.d – which, he said, occurred in early 1992, just a few months after the CPGB dissolution - this would have had the effect of transferring the “Scottish assets” to DLS. He was questioned about the precise status of DLS and why the library did not feature in the negotiated settlement with NTN in 1999.
[41] In re-examination Mr Chalmers confirmed the chain of ownership from CPGB to DL and, by virtue of clause 5.d of the DL constitution, to DLS.
Mhairi McGowan
[42] Mhairi McGowan (59) is the manager of a specialist domestic abuse advocacy service operated by Glasgow City Council. She is also a non-active member of DLS, having first joined in 1991/1992.
[43] She spoke of her political interests and affiliations from an early age, including her knowledge of the library. In 1987 she was elected to the executive committee of the CPGB (also known as the “national executive”), the party’s highest decision-making committee, which met in London. In 1989, at the 42nd congress of the CPGB, she was elected as co-chair and thereby came to be involved in chairing the final (43rd) Congress of CPGB in November 1991. She gave a closing speech that “made the link” between CPGB and DL. She disputed that the library was ever abandoned. She spoke to a meeting of DL in 1992 at which the Communist Party Library and the Gallacher Memorial library were specifically discussed.
[44] In cross-examination, she spoke to her interpretations of the CPGB transfer “resolution” (item 19, second defender’s fourth inventory), and of clause 5.d.2 of the DL constitution. She acknowledged that, with hindsight, the wording of the latter could have been better. She said it was “taken as read” that “all Scottish assets belonged to Scotland”.
Carol Mary McCallum
[45] Carol Mary McCallum (52), a long-term employee of Glasgow Caledonian University, latterly as a university archivist, spoke to the general circumstances in which the library came to be housed at GCU. She conceded having no particular involvement in its operation.
[46] Prior to its relocation no checks were carried out by GCU to determine the provenance or ownership of the library. The parties to the written agreement to house the library were the pursuer and GCU. The pursuer had never suggested to Ms McCallum that the library had been abandoned or that the pursuer owned it. Ms McCallum understood (through John Powles) that the core of the library belonged to DLS. She spoke to events in 2013 leading to a breakdown in communication between all parties.
Professor William Thompson
[47] William Gilbert Thompson (76) was latterly professor of contemporary history at GGU. He retired in 2001. He is a member of DLS and writes for its journal.
[48] He spoke to his political associations over the years, to the history of the CPGB and various successor organisations, and to extracts from his book entitled “The Good Old Cause: British Communism 1920-1991” (item 15, second defender’s third inventory). He did not attend the dissolution meeting in November 1991, but confirmed his understanding that the assets of CPGB were transferred to DL. He testified that an association calling itself Democratic Left Scotland was “effectively in existence” from 1991 but was first “formally constituted” at a conference in 1993, at which time its name also first appeared on headed notepaper. In 1998, DL changed its structure by re-forming itself as NTN. It was said that Democratic Left Scotland did not change.
[49] He offered his interpretation upon the meaning of extracts from the DL constitution and the document bearing to be a transfer “resolution” (items 18 and 19, second defender’s fourth inventory). He had not seen the latter document before. He opined that assets located in Scotland would have been owned by DLS. With reference to contemporaneous entries in his personal diary (item 21, second defender’s fourth inventory), he claimed credit for initiating the 1997 relocation of the library to GCU. He disputed the pursuer’s claim of ownership.
[50] In cross-examination, Professor Thompson acknowledged that he was not involved in the drafting or approval of the DL constitution or the transfer “resolution”.
Closing submissions
[51] The parties’ agents lodged written submissions, for which I am grateful.
[52] For the pursuer it was submitted that her claim of ownership was based principally upon abandonment. This method of acquisition was said to be governed by the Civic Government (Scotland) Act 1982 (“the 1982 Act”). It was conceded that no report had been made by the pursuer to the police of her alleged “finding” of the fund in medio. Separately it was submitted that the fund was “abandoned” to the pursuer by the CPGB in 1987 at which time she became the “de facto owner”. Esto the court was not satisfied that the pursuer owned the library nevertheless I was invited to prefer her claim over that of the second defender. No further guidance was offered in submission to justify that preference. The second defender’s claim of ownership was disputed.
[53] For the second defender I was invited to conclude that the library was not abandoned by the CPGB in 1987. In any event, even if the property had been abandoned it was submitted that it would thereby have become the property of the Crown on the principle quod nullius est fit domini regis. Reference was made to the Scottish Law Commission report (no. 228) on prescription and title to moveable property and to the Prescription and Limitation (Scotland) Act 1973, section 8. The 1982 Act claim was rejected as groundless, absent compliance with the statutory procedure. Instead, I was invited to conclude that the second defender’s title had been established. It was acknowledged that over the years there had been a “lack of focus” upon the issue of formal legal title, but that this was to be expected given the politics of the protagonists. I was invited to “look behind the wording” of the DL constitution and “infer that what was meant was that all assets in Scotland would remain in Scotland”.
Discussion
[54] The pursuer and the second defender advance competing claims to ownership of a library. The pursuer’s claim of ownership is founded principally upon the proposition that the library was abandoned in 1987 by its former owner, the CPGB. The second defender claims to be the “successor” to the former owner (whom it identifies as the Scottish committee of the CPGB). The second defender’s claim came to be founded principally upon consecutive alleged assignations: firstly, from the CPGB to DL; secondly, from DL to the second defender.
[55] In my judgment neither claim has merit, in fact or in law. Neither the pursuer nor the second defender has established ownership of the library. I explain my reasoning below.
Abandonment
[56] The pursuer avers that the library was “abandoned” in 1987 (closed record, articles 2 and 3, lines 66 and 127, respectively).
[57] Abandonment infers an intentional relinquishing of right, title and claim to the property in question. The pursuer’s claim, so far as founded upon abandonment, fails for three reasons. Firstly, even if the former owner of the library had abandoned it, as matter of law ownership would then have vested in the Crown, not the pursuer. Secondly, on the evidence I conclude, as a matter of fact, that the owner of the library did not abandon it in 1987 or subsequently. Thirdly, to the extent that the pursuer’s use of the term “abandonment” is to be understood as meaning some form of direct assignation or voluntary transfer of ownership to her, I conclude that no such assignation or transfer occurred.
The legal consequence of abandonment
[58] Ownership of corporeal movable property can be original or derivative in nature. The acquisition of a new title involves original acquisition, the acquisition of title derived from a previous owner is derivative acquisition.
[59] Where a corporeal movable has never had an owner, it may be acquired by taking it. That is the mode of acquisition which is generally known by the Roman law term occupatio (ie. occupation or seizure, or its English equivalent, occupancy) (Stair Memorial Encyclopedia, Volume 18 (Property), 539). The title of the owner is necessarily “original” because there is no owner from whom he could derive title. As a general rule in Roman law, anything which was capable of private ownership and which was not already owned could be acquired by occupatio (that is, by seizing or taking possession of it). The applicable principle is quod nullius fit occupantis (what belongs to no one becomes the property of the taker).
[60] In Roman law occupatio applied both to things which had never had an owner (such as shells, pearls or pebbles on the seashore, wild animals, birds, fish and the like), and to things which had ceased to have an owner (for example, because they had been abandoned, though an exception applied to treasure).
[61] However, in Scots law occupatio, as a mode of original acquisition, applies only to things which have never had an owner. Where things were once owned, but no longer have an owner, a different rule applies. That different rule is that such property vests in the Crown. The applicable principle is quod nullius est fit domini regis (what belongs to no one becomes the property of the Lord King). Thus, if a question arises over the ownership of things which have once been appropriated, but have now been lost, forgotten or abandoned, the Crown will have title unless some special rule applies (Stair Institutions, II, 1, 5; Stair, Institutions, III, 3, 27; Erskine, Institute of the Law of Scotland, II, 1, 12; Bell, Principles of the Law of Scotland, 1287-1291; Stair Memorial Encyclopedia, supra, 540). The principle is said to be founded upon public expediency “to avoid fraud, contests, and litigation, together with some slight purpose of adding to the public revenue” (Bell, supra, 1291).
[62] The flaw in the pursuer’s claim of ownership, so far as founded upon abandonment, is that, in Scots law, property which was once owned does not become “ownerless” upon abandonment or otherwise susceptible to acquisition by merely taking or keeping possession of it. Instead, in law, abandoned property vests in the Crown.
[63] A subtle difference between the parties emerged in evidence as to whether, prior to the 1987 relocation, the library was owned by the Scottish committee of the CPGB or by the (London-based) executive committee of the CPGB. On this particular issue, the precise identity of the owner is immaterial. Either way, it is not in dispute that the library was owned by someone in May 1987. Therefore, if the library was indeed abandoned by the owner, it would have fallen to the Crown. It would not have vested in the pursuer.
The pursuer as “finder” under the Civic Government (Scotland) Act 1982
[64] Perhaps recognising this legal difficulty, in his closing submission the pursuer’s agent sought to argue that the pursuer was the “finder” of the library and that her acquisition of ownership derived from the statutory mechanism set out in the Civic Government (Scotland) Act 1982 (“the 1982 Act”). This submission was not foreshadowed in the pleadings or the evidence.
[65] The belated invocation of the 1982 Act procedure was forlorn.
[66] It is correct that sections 67 to 79 of the 1982 Act provide a mechanism whereby the finder of lost or abandoned property may acquire ownership of that property from the Crown. The legislation is binding on the Crown and the Crown’s common law right in lost or abandoned property is capable of being extinguished by a disposal in terms of the Act (sections 78(1) and (2)). However, the Crown’s rights are affected only by such a disposal (section 78(3)). Therefore, the prescribed statutory procedure must be followed.
[67] The procedure is straight-forward. The finder of the property must, without unreasonable delay, deliver it (or report the fact that he has taken possession of it) to a police constable (section 67); the Chief Constable is obliged to take reasonable steps to ascertain the identity of the owner or person having right to the possession of the property, and to notify him where it can be collected (section 68(3)) (presumably also requiring communication with the Queen’s & Lord Treasurer’s Remembrancer) (Stair Memorial Encyclopedia, supra, 548); the property must normally be kept by or at the direction of the Chief Constable for a minimum period of two months from the date on which it was first delivered or reported to the police constable (section 68(4)); and, if the property has not been successfully claimed by the owner or person entitled to possession of it, the Chief Constable may then dispose of it (section 68). Where it is disposed of to the finder (or any third party) the person obtaining it thereby acquires title (section 71(1)). However, that title remains precarious in respect that if the property was not acquired for value the previous owner may “recover possession of the property as owner” within one year of the Chief Constable’s disposal (section 71(2)), subject to the usual defences available to a bona fide possessor.
[68] In summary, the mere finding of lost or abandoned property does not confer a proprietorial right upon the finder. The rights of the true owner (and the Crown’s common law rights) are preserved. In order to acquire title as a “finder” under the 1982 Act, the statutory procedure must be followed.
[69] There was no evidence that the 1982 Act procedure had ever been instigated or even considered by the pursuer. Accordingly, she cannot avail herself of this statutory mechanism of acquisition.
Was the library ever actually abandoned?
[70] These legal issues apart, in my judgment, as a matter of fact, the library was not abandoned by its owner in May 1987 or, indeed, at any time thereafter.
[71] The testimony of the pursuer and her witnesses regarding the alleged abandonment in 1987 was advanced somewhat faint-heartedly.
[72] In her evidence-in-chief, the pursuer did not assert that the library had actually been abandoned. Instead, she expressed a concern that it “would just have been left”, if a new home had not been found for it; she acknowledged the proposition - put in a leading question - that the library “would have been abandoned”; but she never explicitly stated that the library was abandoned. In cross-examination the same subtle but important distinction emerged. She acknowledged the library “would have been” abandoned; that “it would probably have been left for the owners coming in and disposed of”; and that the CPGB “didn’t say they were abandoning it” but that she took it upon herself to “find a new home for it”.
[73] The evidence of Eric Canning was in broadly similar terms. He spoke to his recollection of events in the weeks leading up to the CPGB vacating Carlton Place in May 1987. His “impression” was that the library “would be skipped”. In evidence-in-chief, he said:-
“My sense from speaking to Jack Ashton [the then secretary of the Scottish committee of the CPGB] during this frantic period – because the Party was in a state of factionalism – was that the library was the last thing on their minds. I know it was a great relief to Jack Ashton that [the pursuer] had found a home for it. If she hadn’t done that, and the bookshop couldn’t take it, it would have been left. In a word, it was abandoned.”
[74] The same theme emerged in cross-examination. Mr Canning stated that he and his wife “boxed up” the library during the week ending 8 May 1987. The previous week had been “hectic” because “it looked as if [the library] was going to be left behind”. Specifically:-
“[The library] would, according to Jack Ashton, have been abandoned to the incoming owner of the premises the following week if its future could not have been secured”.
The evidence continued in this vein. Mr Canning said:-
“If [the pursuer] had not found alternative accommodation with STUC, and [CPGB] had to vacate [Carlton Place] - those premises should have been vacated on 1 May, but we got an extension - the library would simply have been abandoned to the incoming proprietor”.
Finally, in response to a direct question in cross-examination as to whether the library was actually abandoned, Mr Canning testified:
“Had it not been secured housing before termination of the tenancy, it would quite possibly have been abandoned to the incoming proprietor. If it had still been in the premises then it would have been abandoned or deserted”.
So, by the close of his testimony, the abandonment of the library had been diluted from, at best, a likelihood to something resembling a mere possibility.
[75] Interestingly, this latter formulation echoed Mr McLennan’s testimony of the prevailing “common knowledge” surrounding the 1987 relocation, namely that, but for the intervention of the pursuer and her husband, the library “would possibly have been abandoned”.
[76] Add to this the consistent testimony of Mr & Mrs Canning that the pursuer was “wholly responsible” for the library; that it was part of her “remit” to find a new home for the library; that, prior to the CPGB vacating the Carlton Place premises, a new home for the library was found; that Jack Ashton was told of this, that he was “greatly relieved” and that he consented to the relocation and re-naming of the library; and the picture emerges that the CPGB did not, in fact, abandon the library at all. On the contrary, the library was saved from being abandoned. The pursuer, as librarian, had ably discharged her duty and “remit” by finding a safe haven for the collection at the eleventh hour.
[77] Lastly, there was a substantial body of evidence to the effect that the CPGB would never have tolerated the abandonment of the library given the collection’s provenance and repute. Mhairi McGowan, Douglas Chalmers and Professor William Thompson were aghast at the suggestion that the library was ever likely to have been left by the CPGB to be dumped in a skip. That scenario was variously described as “unthinkable” (Professor Thompson) and a “sacrilege” (Ms McGowan). Stewart McLennan acknowledged that the history of the labour movement within Scotland was littered with instances of lost historical archives but his evidence also underscored the unique value and pedigree of this particular collection. The pursuer’s own evidence of her ongoing communications with Jack Ashton (the secretary of the CPGB Scottish committee, from whom she took instructions) and of his continuing involvement in the direction and control of the library (specifically, his relief at the finding of a new home and his granting of consent to the relocation and change of name) is indicative of a continuing proprietorial interest in the asset and is inconsistent with abandonment.
[78] Much weight was placed by the pursuer upon the CPGB’s apparent lack of interest in the library following the 1987 relocation. I attached little significance to that evidence. By her own admission the CPGB was riven with internal conflict and overwhelmed by national and international political developments, resulting just four years later in the dissolution of the party. In that context, the owner’s apparent lack of interest in the library is explicable. The library was safe; there was no pressing need for its involvement during that period, given the ongoing stewardship of the pursuer herself; and the CPGB was wrestling with more pressing matters at the time. The owner’s absence and silence during that period is not such as to justify an inference of abandonment.
[79] In the whole circumstances, given the revered standing of the benefactor and the cherished status of the collection among the party’s members, I infer that there was never any intention on the part of the CPGB to abandon the library, even in the circumstances of peril and political dysfunction faced by the party in 1987 and subsequently.
[80] For the foregoing reasons, in my judgment the pursuer’s claim, so far as based upon abandonment, fails.
Alleged donation to the pursuer
[81] An alternative potential form of derivative acquisition emerged in the course of the evidence. This was to the effect that the library was gifted to the pursuer by the CPGB in May 1987.
[82] This testimony emerged most clearly towards the end of Mr Canning’s evidence-in-chief. It had not been mentioned by him previously. It was not raised explicitly in the pleadings. Mr Canning testified: “Jack Ashton later handed over the collection into [the pursuer’s] hands and agreed the name change…” He continued:-
“Jack Ashton’s words were: ‘Tell [the pursuer], take the lot we can no longer be responsible for the collection or housing it’, and there was no communication thereafter.”
In cross-examination, he was challenged on this alleged “handover” of ownership (as opposed to possession) of the library to the pursuer. He replied:- “The [CPGB] gave up possession into [the pursuer’s] hands.” The point was not developed further.
[83] Some faint echo of this line is discernible within the pursuer’s evidence, but with a subtle difference. Mrs Canning’s evidence is more specific as to the context in which Mr Ashton’s statement was made and its timing. She testified that she had secured the agreement of STUC to house the library, she had informed Jack Ashton of this, and she arranged (with library funds) for a removal van to attend at Carlton Place in order that she, her husband and son could box up and move the library. She continued:-
“My husband asked Jack Ashton if we could take the shelving. Jack Ashton said ‘Yes, take the lot’, even down to the screws. We put the screws in a bag. So we had the lot”.
[84] Thus, there is a consistency in the testimony to the extent that both witnesses speak to Jack Ashton having said “take the lot”. However, the timing and context of the statement is important. According to the pursuer, this statement was made by Mr Ashton after he had been advised that a new home had been found for the library and in response to a specific request that, as part of the relocation, the shelving might also be removed from the Carlton Place premises. In that context, Mr Ashton’s instruction or agreement to “take the lot” is reasonably to be interpreted as an instruction to remove the shelving and physical accoutrements ancillary to the keeping of the library, to facilitate the relocation and the re-establishment of the collection in its new home. In contrast, Mr Canning’s account is more general in nature. It sheds little light on the timing or context of Mr Ashton’s alleged statement. Accordingly, the weight to be attached to it as evidence of a different and more substantial form of conveyance is diminished.
[85] Moreover, this ground of derivative acquisition would, if made out, have involved a gratuitous transfer of ownership from CPGB to the pursuer. There is a presumption against donation. Given the provenance of the library, the value attached to it by the CPGB members, and the political ideology of all interested parties at that time that the library was not to be owned by any individual but belonged to a political movement generally, it seems unlikely that ownership of the library would ever have been transferred to one individual.
[86] In my judgment, Mr Ashton’s instruction to the pursuer to “take the lot” is consistent with a transfer of custody of the library and its ancillary accoutrements into the hands of the pursuer. It is not clearly referable to a transfer of ownership of the library. The presumption against donation is not discharged. Ultimately Mr Canning articulated the proposition no higher than that when, on being challenged regarding this specific distinction (between ownership and mere possession), he stated that the CPGB “gave up possession” into the pursuer’s hands.
[87] That conclusion is also consistent with the limited delegated authority which was vested in Mr Ashton (and the Scottish committee generally) to control the disposal of the library. While I accept that the Scottish committee (and Mr Ashton as its secretary) may have had a degree of local control over the asset within its territorial jurisdiction (including power to take decisions concerning the care and protection of the library, specifically, in circumstances of urgency or necessity), I conclude that the Scottish committee (a fortiori Mr Ashton acting alone) had no power or authority to transfer ownership of the library. According to Mr Chalmers himself, that right and power was vested in the CPGB executive committee based in London.
[88] Accordingly, to the extent that the pursuer’s claim of ownership is founded upon an alleged voluntary transfer of ownership to her in 1987, she has failed to discharge the burden of proof upon her.
The doctrine of reputed ownership
[89] Lastly the pursuer was described in testimony as the “de facto owner” of the library. This description is repeated in the pursuer’s written submissions.
[90] The term was first used towards the end of the pursuer’s evidence-in-chief. Having repeatedly stated that she had never considered herself to be the owner of the library, she testified that, following the closure of the library by GCU in May 2013, she sought legal advice. She said:- “The funny thing is - the solicitor said, looking at the papers, he said de facto you look like the rightful owner of the library”. Again, when asked, in a leading question, whether she asserted that she was the “de facto owner”, she replied: “That is what I have been told”. In cross-examination, when asked to clarify why she came to assert ownership of the library, she testified:- “I was told [that] by my solicitor, given my care and maintenance of the library over 35 years.”
[91] In cross-examination, Mr Canning referred to the pursuer fleetingly as “de facto” rightful owner of the library.
[92] The term “de facto owner” does not appear in the pleadings. It is repeated but not defined in the written closing submissions. It is not a term of art. As a result I am left in some doubt as to what it actually means.
[93] Subject to those caveats, I infer that the pursuer is seeking to rely upon the doctrine of reputed ownership. If that is so, in my judgment that ground of claim also fails for the reasons set out below.
[94] Ownership and possession are distinct legal concepts. However, Scots law attaches some importance to possession as raising a presumption of ownership of corporeal moveable property (Stair, Institutions IV, 45-17; Erskine, Institute II, I, 24). Importantly, the presumption is a rule of the law of evidence only. It provides a simple and convenient rule of evidence in the event of a dispute arising as to ownership. The substantive law of property is left untouched. Ownership is presumed of the possessor, but whether he really is the owner continues to be determined by the law of property (Stair Memorial Encyclopedia, supra, 130 & 532).
[95] Importantly the presumption is liable to be rebutted “and perhaps liable to be rebutted easily” (Anderson v Buchanan (1848) 11 D 270 at 284). The importance of the doctrine of reputed ownership has been significantly diminished by a recognition that there are many legitimate occasions for the separation of ownership and possession (Robertsons v McIntyre (1882) 9 R 772 at 778). That said, when a dispute does arise, the current possessor still has the benefit of a rebuttable (if precarious) presumption of ownership deriving from that possession, and it is then for others to discharge the evidential burden of showing that ownership lies elsewhere.
[96] In the present case, to the extent that the pursuer is seeking to rely upon the doctrine of reputed ownership, a fundamental difficulty arises for her. It is this. For the presumption of ownership to operate at all, the property in question must first be possessed in the strict legal sense of that term. In law, possession requires both a physical act and the necessary legal intent. Possession requires an act of the body (corpus possidendi), being an initial act of holding and detention of the thing sought to be possessed, accompanied by an act of the mind (animus possidendi), being the intention to exercise exclusive physical control over the thing detained for the benefit of oneself (Stair Memorial Encyclopedia, supra, 117-125). The dual component elements of possession are described by Erskine (Institute, II, I, 20) in the following terms:-
“But possession, when made use of in a strict sense, is defined [as] the detention of a subject, with animus or design in the detainer of holding it as his own property. It is made up partly of fact and partly of right. The fact consists in the detention of the subject which the possession hath in his custody. The right consists in the view which he holds it: he holds it in his own name as his own property. In the first acquisition of possession, actual detention is an essential requisite; for if a bare act of the mind were sufficient, possession would be too vague and uncertain. Yet detention is not sufficient by itself; the possessor must also hold it as his own right. Depositaries, therefore, or stewards, who have the custody or management of a subject for the use of another, are not proper possessors, but bare custodiers or keepers of it.”
Likewise, Professor Bell (Principles, 1311-1312) notes the distinction as follows:-
“Possession is detention, with the design or animus of holding the subject as the property of the holder. It differs from custody, which is conditional and limited possession, held not for the custodier, but for another…”
[97] So physical detention or control of corporeal moveable property, without the necessary intent to hold it for the benefit of oneself, is not possession in law. Physical control exercised solely for the benefit of another is custody, not possession. The distinction was discussed in Hamilton v Western Bank of Scotland (1856) 19 D 152 at 161. Lord Ivory noted:
“…there have, in our own law, arisen sometimes considerable difficulties as to the distinction between custody and possession. Questions may arise as to goods which, in a certain sense, are in custody, if in the hands of a workman who get them for the special purpose of performing operations upon them – which being performed, the article has been changed in shape, and is, in its changed state, restored to the owner. The workman has the custody, but the possession is still in the proprietor. Again, a carrier has a limited custody, but not possession. A manufacturer has, perhaps, a higher right, but still he has not possession. He is merely the hand which holds the goods for a certain purpose, and his custody is the possession of the proprietor”.
[98] The pursuer cannot found upon the doctrine of reputed ownership because, throughout her 35 year stewardship, she did not have the necessary possession of the library in the strict legal sense of that term. To constitute possession, she required to hold the library “as [her] own property” (Bell, Principles, supra), or “as [her] own right” (Erskine, Institute, supra) or “for [her] own use” (Stair, Institutions, II I 17). That is the required animus or intent. By her own candid admission, it never crossed the pursuer’s mind that she was the owner of the library until she sought legal advice after May 2013. According to her own evidence, the library was kept by her for the benefit of another or others. For a period she believed the library was owned by the second defender; at other times she thought that it “belonged to the Scottish labour movement”. Either way, what is clear is that she never held the library for herself or for her own benefit. The self-interested intent necessary to constitute possession, as opposed to mere custody, was absent throughout.
[99] I acknowledge that a dual holding of property frequently occurs, such as, for example, by a tenant, who possesses both for himself (as tenant) and for his landlord (as owner). The tenant has natural possession; the landlord has civil possession through the tenant. However, this is not such a case. A thing held exclusively for another is not “possessed” at all, in the strict legal sense. The holder of such an article merely has custody of it, not possession.
[100] Towards the end of her evidence-in-chief, the pursuer acknowledged that it was in early 2013 that she “really began to think about the provenance of the library”. It was at this point in time that she “realised it was a mistaken assumption” by her that the library was owned by DLS. She stated:-
“I had taken the initiative to move the library [in 1987] and I felt it had, at that time, moved out of the control of the [CPGB] and that I had possibly, at least, become custodian of the library”.
In that latter conclusion, she was correct. Mrs Canning held the library throughout as a steward, keeper or depositary. In law she did not have possession of it; she held it not for herself but for the true owner; and accordingly, she cannot rely upon the evidential presumption of ownership arising from possession of corporeal movable property.
Understanding the second defender’s claim of ownership
[101] Before embarking upon an adjudication of the second defender’s claim of ownership, it is necessary to take a little time to clarify the precise nature of that claim. This is so because the second defender’s claim of ownership is, it must be said, characterised by confusion and contradiction.
[102] The difficulties begin in the pleadings. In Answer 1 the second defender avers that it is “the Scottish successor” to the CPGB; that the CPGB voted to “become” DL in 1991; that all assets of CPGB were then transferred to DL (“its successor organisation”); that, in Scotland, DL “operates” as DLS; and that DLS is the owner of the fund in medio.
[103] These averments raise more questions than they answer. The inference would appear to be that the library was originally owned by the CPGB, but that ownership transferred to DL (“its successor organisation”) in 1991 (or perhaps to DLS direct as “the Scottish successor” to the CPGB). What is unclear is how ownership is said to have passed to DLS, whether direct from CPGB or via DL. Some form of transfer is hinted at in the description of DLS as CPGB’s “Scottish successor” and by the averment that, in Scotland, DL “operates” as DLS. However, these terms - “successor organisation”, “Scottish successor” and “operates” - are not terms of art. Their meaning is opaque. They require explanation. An entity may well “operate” (for example, in the sense of carrying on a business) in a geographical area through the conduit of another legal entity (such as a subsidiary limited company) or merely under a descriptive or trading name - but that does not by itself transfer ownership of any property to the other entity, still less to a mere descriptive or trading name. Besides, on the face of it, two different “successors” to the CPGB are identified in the pleadings; and in neither case is the actual mode of property transfer explained.
[104] Answer 2 then adds a dash of enigma to the confusion. It is averred that the library was founded in December 1968 (in premises of the CPGB), and that since its foundation “it has remained in the ownership of [DLS]”. In other words, the second defender now claims to be the original owner of the library. If that is the case, one wonders why any reference has been made to the transfer of assets from CPGB to DL; why DL is averred to be the “successor” to CPGB; and why the second defender is averred to be the “Scottish successor” to the CPGB. It also raises a conundrum as to how the second defender could own property as far back as 1968 when prima facie it did not come into existence until over two decades later.
[105] Against that background one embarks upon an analysis of the evidence with some trepidation, as the averred position of the second defender is either that (i) it has owned the library continuously since 1968; or (ii) it acquired ownership direct from CPGB as “Scottish successor” to the CPGB (on some unspecified date and by some unspecified mode of derivative acquisition); or (iii) it acquired ownership indirectly from CPGB through DL (again, on some unspecified date and by some unspecified mechanism, linked in some way to DL allegedly “operating” as DLS in Scotland).
[106] Regrettably the evidence for the second defender was unilluminating.
[107] In his evidence-in chief Mr Chalmers began by explaining the sequence of events leading to the dissolution of the CPGB in November 1991. He referred to the new “constitution” of DL (item 18, second defender’s fourth inventory), identifying DL as CPGB’s “constitutional successor”, and to the “Congress document No. 7” entitled “Resolution on control and use of party assets” (item 19, second defender’s fourth inventory) which, he said, allowed DL to demand transfer to it of any assets belonging to CPGB.
[108] So far, at least, Mr Chalmers’ testimony appeared to be leading towards the assertion that the chain of ownership passed from CPGB to DL to DLS (by virtue of the DL constitution and the approved resolution). But he then abruptly changed course. When asked to give examples of assets that might fall within the terms of the approved resolution, Mr Chalmers stated:- “The [library] was clearly ours anyway so there was no need to refer to it expressly.” With this comment Mr Chalmers laid the groundwork for the proposition that no transfer of ownership of the library was effected upon the CPGB dissolution, but rather that the second defender had somehow always owned the library. Continuing with this line, he stated that in March 1992 (after the dissolution of the CPGB) he attended a meeting of the federal executive of DL. An item on the agenda concerned the relocation of a separate non-Scottish collection (the Communist Party Library). The DL executive committee agreed to transfer that collection to the National Museum of Labour History in Manchester. The DL executive committee also made reference to the William Gallacher Memorial Library, and decided it should not be relocated to Manchester, but should instead remain in Scotland. Mr Chalmers testified:- “If it had been suggested the library had been in the ownership of the CPGB, not the Scottish Communist Party, it wouldn’t have been tolerated.” There had been no prior reference by Mr Chalmers to “the Scottish Communist Party”, but I took it to mean the Scottish Committee of the CPGB. Mr Chalmers then stated that the second defender is “the constitutional successor to the Scottish committee of the [CPGB]” and, later, that the second defender is the “successor to the Communist Party in Scotland”.
[109] All this culminated in an explicit assertion by him at the tail-end of his evidence-in-chief that in 1991, prior to the dissolution of the CPGB, the library was owned by the Scottish committee of the CPGB, not the CPGB. (Perplexingly, though, in answer to the very next question Mr Chalmers agreed that the assets of CPGB (including the library) were transferred to DL in November 1991.)
[110] The upshot is that, by the close of his evidence-in-chief, Mr Chalmers was asserting (subject to the odd inconsistency) that the library was never owned by the CPGB; that, in fact, that it was owned by the Scottish committee of the CPGB; and that the second defender, as the “constitutional successor” to the Scottish committee, had (by some as yet unspecified mode of acquisition) become the owner of the library. On this analysis, the second defender’s title did not derive from DL or the CPGB at all, but from its alleged succession to the Scottish committee of the CPGB.
[111] Cross-examination prompted a volte-face. When asked to clarify how ownership of the library came to be vested in DLS, Mr Chalmers testified that it occurred by operation of the DL constitution, specifically clause 5.d thereof. This clause reads:
“National Organisation
5.d.1 Members of each nation shall have the right to organise on a national basis. This decision shall be taken at their respective national conference or through a wider form of democratic involvement and decision making by the national membership.
5.d.2 National organisations where constituted shall have complete jurisdiction over their name, policies, officers, finance and structures whilst upholding the federal party’s Aims and Values and universal members’ rights.”
Mr Chalmers testified that DLS had become a “national organisation” in early 1992, within a few months of the CPGB dissolution; and on that date, by virtue of clause 5.d.2 of the DL constitution, the library and all other assets of DL located in Scotland transferred to DLS.
[112] According to this evidence, DLS’s title to the library derived from DL (which, by implication, must have obtained title from the CPGB). There appeared to be a grudging acceptance of this logic by Mr Chalmers when he conceded that assets belonging to the CPGB were vested in its executive committee based in London and that “legally, probably” ownership of those assets transferred in 1991 to the federal executive of DL. Prima facie that contradicted Mr Chalmers’ earlier testimony which was predicated upon a continuity of ownership arising from DLS’s alleged succession to the Scottish committee of the CPGB.
[113] Yet he appeared uncomfortable with the logical conclusion from his own concession and, towards the end of cross-examination and into re-examination, he continued to insist that it was the Scottish committee of the CPGB that had owned the library since 1968 and that “in practice, the Scottish [committee] controlled its own assets”.
[114] In re-examination, the second defender’s agent seized upon the newly-emerged mode of derivative acquisition under clause 5.d of the DL constitution (no doubt because it had never featured in examination-in-chief or, for that matter, in averment). Mr Chalmers explicitly confirmed the alleged trail of ownership: in November 1991 the CPGB voted to transfer all its assets to DL; as at that date all assets located in Scotland (including title to heritable premises in Bathgate, an office lease, some desks, and the library itself) vested in DL; but that these same assets then transferred into the ownership of DLS when, within a few months of the CPGB dissolution, DLS constituted itself as a “national organisation” of DL under clause 5.d of the DL constitution.
[115] Before leaving Mr Chalmers’ evidence, a further contradiction should be noted. Throughout his evidence he explicitly insisted that the library was owned by the Scottish committee of the CPGB, not by the CPGB. However, in cross-examination he disputed the proposition that Jack Ashton (then secretary of the Scottish committee of the CPGB) would ever have agreed in May 1987 to transfer ownership of the library to the pursuer on the logic that:- “… decisions about the library were made at a UK level, given who Willie Gallacher was. The executive committee [of the CPGB] did not give any such authority.” He later reiterated that rationale. He insisted that Mr Ashton had no authority to dispose of the library to the pursuer because such a disposal “needed to be a decision of the British executive of the CPGB.” So, notwithstanding his earlier insistence that the library was owned by the Scottish committee, Mr Chalmers twice acknowledged that the Scottish committee would have had no power to convey title because “decisions about the library” were made elsewhere, by a higher authority.
[116] Mhairi McGowan’s evidence was more simple. She contended that the second defender acquired ownership of the library through the dual mechanism of the CPGB resolution (item 19, second defender’s fourth inventory) and clause 5.d.2 of the DL constitution.
[117] Professor William Thompson spoke briefly to his belief that the library was originally owned by “the Scottish CP [Communist Party]” (item 20, page 44, second defender’s fourth inventory). That might be said to echo Mr Chalmers’ testimony that the library was owned by the Scottish committee of the CPGB. Importantly, though, Professor Thompson did not purport to speak in any detail to the chain of ownership of CPGB assets over the years. He explicitly disavowed the suggestion that his flowchart (item 1, second defender’s first inventory) - bearing to depict a history of the fragmentation of the CPGB - recorded the “flow of assets”. He expressed the opinion, simply upon a reading of clause 5.d.2 of the DL constitution (item 18, supra) and of the CPGB resolution (item 19), that assets located in Scotland would have been owned by DLS.
Assessing the second defender’s evidence
[118] Having sought to clarify the basis (or bases) of the second defender’s claim of ownership, I turn now to assess the quality of the second defender’s evidence in support of that claim.
[119] In my judgment, that evidence is unreliable and falls to be rejected for the following reasons.
The reliability of Mr Chalmers’ evidence
[120] Firstly, as detailed above, the evidence of Mr Chalmers - the second defender’s principal witness - was fraught with confusion and bedeviled by internal contradiction. For that reason, in my judgment its reliability was materially undermined. I did not accept it.
The reliability of Professor Thompson’s evidence
[121] Professor Thompson’s evidence (in support of the second defender’s claim of ownership) fell within a much narrower compass. In my judgment the main difficulty with his evidence on this issue was that it involved little more than expressing an impressionistic view upon the proper interpretation of documents with which he was not familiar and which he had not been involved in writing, approving or implementing. He had not been involved in the drafting of, or debate upon, the DL constitution; he had not attended the CPGB dissolution Congress in November 1991; and he frankly conceded he had never before seen the transfer resolution before giving evidence.
[122] Finally, even to the limited extent that he touched upon the issue of the second defender’s title to the library, his evidence disclosed a certain internal inconsistency. Having opined that the library belonged to DLS by virtue of clause 5.d.2, in re-examination he commented that if a “national organisation” (such as DLS) wanted to dispose of it to a third party who was considered by the DL federal executive to be “obnoxious” in a political sense, then DL would have been entitled to intervene to prevent such a disposal. In my judgment, that purported qualification sits uncomfortably with the conventional notion of proprietorial right, which would normally include an unfettered right of disposal.
[123] Accordingly, I attached little weight to the evidence of Professor Thompson in support of the second defender’s claim of ownership of the library.
The reliability of Ms McGowan’s evidence
[124] In my judgment the reliability of Ms McGowan’s testimony on the issue of ownership was materially undermined by the broad-brush generality of her evidence, the recurring conflation of distinct legal and non-legal concepts, and an intrinsic inconsistency in logic.
[125] In fairness, the tendency to generalise was a trait that emerged throughout much of the evidence at proof. But it was the testimony of Ms McGowan and Mr Chalmers that most often conflated political aspiration and legal title; ownership and possession; ownership and geographical location; ownership and interest; DL and DLS. Throughout their testimony, it was difficult to distinguish between their political desires as to who should own or “control” the asset and their knowledge of which person, from time to time, actually did own the asset (and how the vesting of ownership had come about). Given the political ideologies of the protagonists, and with no disrespect intended to anyone, this may not be surprising. As Professor Thompson volunteered, in seeking to explain this recurring lack of attention to detail:- “Being communists, we didn’t think property was of any great consequence and considered we should deal with these things informally”.
[126] For example, in support of the second defender’s claim of ownership, Ms McGowan placed weight upon a document bearing to be a letter dated 6 August 1992 from the pursuer to Mr Chalmers (item 2, second defender’s first inventory). This was said to have been written in 1992 by Elspeth Munro (an internal legal adviser for DL, based in London) at the request of Mr Chalmers and Ms McGowan to formally record ownership of the library. Putting aside that the document is unsigned (other than by the subscription “Elspeth”), that it is ex facie merely a draft, and that its provenance is fiercely disputed by the pursuer, it refers to the DL “archives and library”, it designs Mr Chalmers as a representative of DL, and it bears to identify DL as the owner of the library. There is no mention whatsoever of DLS. Ms McGowan was undaunted by that omission. The repeated reference to DL (rather than DLS) was, she said, “a shorthand more than anything else”. She and her colleagues spoke of “DL” and “DLS” interchangeably. In Ms McGowan’s mind there was no significance in the distinction. (Interestingly, Mr Chalmers also testified that Ms Munro had not been “fixated on the difference” between DL and DLS; and Professor Thompson volunteered that the names “Democratic Left” and “Democratic Left Scotland” were used interchangeably “and to some extent still are”.)
[127] In my judgment, this confusion of legal personae materially undermined the reliability of Ms McGowan’s testimony and much of the second defender’s evidence. The distinct legal status and proprietorial rights of the second defender (as opposed to DL, or the CPGB, or the unincorporated association calling itself “Democratic Left Scotland” that formed part of DL until 1998 and which may or may not have been a “national organisation” within the DL constitution) are the de quo of these proceedings. If the second defender cannot establish the basis and provenance of its proprietorial claim, distinct from these and other entities, by credible and reliable evidence, then its claim fails.
[128] Separately, Ms McGowan explained that the underlying rationale of the CPGB transfer resolution (item 19, second defender’s fourth inventory) was to prevent “break-away groups” from seeking to expropriate CPGB assets and “lineage”. She said this was a “real fear” of the CPGB as it approached the dissolution Congress. (Mr Chalmers had also spoken of the CPGB’s objective at that time as being to prevent “asset-grabbing” by dissident factions.) According to Ms McGowan the transfer resolution (item 19, second defender’s fourth inventory) was intended to stop this happening. It was intended to:- “… tie down that all assets of CPGB belonged to DL – and obviously that meant that assets in Scotland remained in Scotland”. Of course, the transfer resolution makes no explicit exception or provision for the geographical location of the asset (in Scotland, Wales, England, or elsewhere). It is unequivocal. It simply transfers all CPGB assets to DL. But Ms McGowan insisted that assets located in Scotland “were Scotland’s assets”. She testified:-
“Whatever was in Scotland’s hands was staying in Scotland’s hands. Whatever was in the Scottish Communist Party would stay with the Scottish Communist Party; and, following that, whatever was in DLS’s hands stayed in DLS’s hands. There was to be no change, to make sure there was a continuous line of ownership”.
[129] She also founded specifically upon clause 5.d.2 of the DL constitution to vouch the proposition that DLS owned the library. She testified:-
“It was absolutely fundamental and clear that Scotland had the right to control Clyde Books, [the Bathgate premises], the library and the archives. Everything in Scotland was Scotland’s”.
In cross-examination, she was challenged on her interpretation of clause 5.d.2. She conceded it made no reference to “assets” or to the transfer of ownership. Nevertheless, she insisted that the clause:- “…gave Scottish members the right to set up a national organisation. As soon as they did that, everything in Scotland came under their jurisdiction”. Interestingly, this formulation (specifically the use of the word “jurisdiction”) chimed with similar testimony of Mr Chalmers in re-examination to the effect that the alleged “understanding and practice” (of whom?) was that by virtue of clause 5.d “DLS had jurisdiction over DL’s assets located in Scotland.”
[130] Clause 5.d makes no reference to “assets”, “ownership” or “transfer of ownership”. Specifically, in ordinary language, having “jurisdiction” over something suggests a power of control, management or influence, short of actual ownership. Nevertheless, Ms McGowan’s (and Mr Chalmers’) testimony persistently conflated concepts of “control”, “jurisdiction”, possession and geographical location, with the notion of ownership.
[131] I also detected a logical inconsistency within her testimony. On the one hand, she stated that CPGB’s objective was to secure a “continuous line of ownership” (from CPGB to DL) and to eliminate the risk of disaffected members unilaterally seizing the former CPGB assets; on the other hand, on her interpretation, clause 5.d supposedly operated to divest the nominated successor (DL) of those assets. In my judgment, these propositions were not consistent. The interpretation of clause 5.d.2 propounded by Mr Chalmers and Ms McGowan appeared to offer carte-blanche for any number of factions to convene a meeting, declare themselves to be a “national organisation” (having achieved the requisite majority), and thereby purportedly expropriate to themselves all DL assets located in that geographical area.
[132] My impression was that Ms McGowan’s interpretative gloss on the wording of the resolution, and of the supposed effect of clause 5.d.2, though honestly held, reflected an expression of patriotic political aspiration rather than a reliable understanding of the actual chain of ownership.
[133] Accordingly, I attached little weight to her evidence in direct support of the second defender’s claim of ownership.
The meaning of clause 5.d of the DL constitution
[134] Lastly, even if I had found the foregoing testimony (anent ownership) to be reliable, to the extent that the second defender’s claim rests upon clause 5.d.2 of the DL constitution, in my judgment that claim is misconceived.
[135] In the first place, as Ms McGowan came to concede in cross-examination, the DL constitution was “a political document”. I infer that the document was never intended to be read as a disposition or other instrument of legal transfer.
[136] In the second place, clause 5.d.2 is simply not habile in its terms to operate as a conveyance or assignation of DL’s assets. It makes no reference to any assets, still less to DL’s assets, still less to a compulsory transfer of ownership from DL to a national organisation. The clause merely confers a limited degree of managerial autonomy upon certain sub-groups of members (not dissimilar to branch meetings) acting within the federal DL structure. It allows those sub-groups to raise and keep their own finances. It confers autonomy in other specified areas, such as choice of name. It does not operate to expropriate existing assets from DL and to transfer them into the ownership of the self-proclaimed sub-group. Such an interpretation is unlikely to have been intended, given the potentially absurd consequence of the federal body thereby hemorrhaging capital and income to a multitude of sub-groups.
[137] In the third place, even if I had been satisfied that clause 5.d operated as a form of assignation of title to DL assets, there is a dearth of evidence as to how (and precisely when) DLS is said to have constituted itself as a “national organisation” under that clause of the DL constitution. No reliable evidence was produced of the convening of a “national conference” to constitute this “national organisation”, as required by clause 5.d.1. (Professor Thompson referred fleetingly to a conference of some description having taken place in 1993, but no detail was provided.) No minute was produced of such a conference evidencing the agreed formation of the “national organisation”, with the necessary quorum of members attending and voting in favour of such a group. No minute or correspondence was produced of the federal entity (DL) approving, or even recognising, DLS as a duly constituted “national organisation” within its structure. No precise date was given by anyone.
[138] Instead, all that was led in evidence was Mr Chalmers’ declaration that DLS was set up “within a few months” of the CPGB dissolution (Professor Thompson’s recollection was different); that there was no change in Mr Chalmers’ modus operandi from the days when he was “second in charge” of the Scottish committee of CPGB; that he quickly came to use headed notepaper and membership cards with the name “Democratic Left Scotland” printed on them; and that no one has voiced any objection.
[139] In my judgment this is not a compelling body of evidence. It does not point persuasively to establishment of a “national organisation” under clause 5.d.
[140] I say that in the context of the DL constitution as a whole which afforded its members substantial flexibility in the way in which they organised themselves. Clause 3.A records:- “All members are free throughout the party and its organisation to exercise their right to form political associations with individuals and groups inside and outside the party”. Clause 5A provides that members of DL can “… establish groups based on geography, common identity and interest”; that members “may participate in several groups”; that groups can themselves “organise together in any way they find useful”; and that “groups and networks can raise their own funds”. Members or groups were at liberty to form “intermediate structures”, “regional structures” and “national organisations”. Given the range of options available it is far from clear that the group that called itself Democratic Left Scotland was necessarily a duly constituted “national organisation” of DL as opposed to one of the multitude of other looser groupings permitted by the DL constitution. By the end of the proof, the precise status of the association that called itself “Democratic Left Scotland” prior to the establishment of the second defender in 1998 remained opaque.
[141] That leads to a final observation. Even if ownership of the library was transferred to an unincorporated association calling itself “Democratic Left Scotland” (constituted as a “national organisation” in terms of the DL constitution), Mr Chalmers was clear that that association formed part of DL and operated within the DL federal structure and constitution. An “association” has no legal capacity as such. Therefore, assets of an unincorporated association are held by individuals (or other legal personae) as trustees for that association. The association, as then constituted, is the beneficiary under the trust. If there is a material change in the identity of the association (specifically, if it ceases to exist as originally constituted) then a question arises as to the effect of that change upon the trust. In 1998, when the association then calling itself “Democratic Left Scotland” ceased to form part of DL, prima facie that association (ie. the “national organisation forming part of DL) ceased to exist; prima facie a new association (the second defender), independent of DL - presumably with its own constitution - was established. But that change in the identity or status of the beneficiary (the “national organisation” under the DL constitution) does not per se divest the trustees of title to the assets held for that beneficiary. The assets are still held in trust. If the second defender, as a newly-constituted association, is to claim ownership of assets formerly owned by trustees for a now defunct association, it requires to adduce evidence of the assignation or transfer of ownership of those assets from the trustees of the defunct association to trustees for the second defender. In political terms, the second defender’s witnesses saw no difference between the two associations but in legal terms the distinction is crucial (from the perspective of the law of persons, the law of property and the law of trusts). None of this was addressed in evidence or submission.
[142] For all of these reasons, I concluded that the second defender had failed to establish that it was the owner of the library.
The pursuer’s alleged admissions of DLS’s title
[143] Lastly, in support of its claim the second defender founded upon various alleged admissions by the pursuer of the second defender’s title to the library. Reference was made to letters dated 8 August 1997 from the pursuer to John Powles, an undated document bearing to have been written by the pursuer, and a further handwritten (undated) note from the pursuer to John Powles. The pursuer candidly acknowledged that she had assumed that DLS was (in a political sense) the constitutional successor to the Scottish committee of the CPGB; and that, as a result, for a period she assumed that DLS was, therefore, the owner of the core collection within library (other parts having merely been deposited by donors). I accepted her explanation that this belief had proceeded upon a mistaken assumption.
[144] In any event, the pursuer’s belief as to the identity of the owner is of no real significance. The question of ownership is a legal one. The pursuer is not legally qualified. Her belief that the second defender (or the defunct unincorporated association previously calling itself Democratic Left Scotland) was the owner does not operate to confer a proprietorial right upon the second defender (or that defunct association); nor does her belief, one way or the other, divest the true owner of its right of property in the library.
Who owns the library?
[145] Standing my conclusion that neither of the competing claimants has established ownership of the library, who then is the rightful owner?
[146] Unfortunately the evidence led in this process does not allow me to reach a definitive conclusion on that issue. Instead, the evidence allows me to reach certain limited conclusions only.
[147] The CPGB was an unincorporated association. The constitution of the CPGB would probably have expressly regulated the holding and ownership of assets, but no copy of the CPGB constitution was produced. In accordance with normal practice, assets of the CPGB are likely to have been vested in a third party or parties (usually executive committee office-bearers) as trustees for the association. On the evidence I am persuaded, on the balance of probabilities, that prior to the 1987 relocation the library was owned by office bearers of the (national) executive committee of the CPGB in London as trustees for the CPGB. It was not owned by the Scottish committee of the CPGB.
[148] In 1991, in compliance with the resolution passed by the members at the CPGB dissolution Congress (but not by virtue of that resolution), I am satisfied, on the balance of probabilities, that the CPGB trustees transferred ownership of those assets (including the library) to trustees for DL, probably by means of a separate formal assignation. To explain, the resolution itself is merely a decision of (a proportion of) the members. It is not a decision of the trustees who own the assets. In law, the decision of the members qua members (even if unanimous) would not have operated to divest the trustees of their right of property - though it may have created a legal obligation upon those trustees to give effect to the expressed will of the association’s membership. What is required is a decision and act of the trustees in that capacity (ie. qua trustees) to transfer ownership to a third party. It is perfectly feasible that the CPGB trustees and the DL trustees were identical, but a decision and act of transfer from one trust capacity to the other is still required. The DL constitution discloses that it was the federal executive committee that held DL’s “funds and assets” in trust for DL (clause 5.h.15).
[149] In 2000, again in compliance with (but not by virtue of) a resolution passed by a proportion of the DL members at their dissolution Congress, I am satisfied, on the balance of probabilities, that the DL federal executive committee, as trustees for DL, transferred ownership of those assets to trustees for NTN. I am fortified in this conclusion by evidence of the negotiated settlement between the second defender (following its establishment in 1998) and NTN including a formal transfer of title to heritable property in Bathgate. The logical inference is that no such formal transfer of assets would have been required if ownership had already been vested in the second defender at some earlier stage by virtue of Clause 5.d.2 or otherwise; and that NTN would not have been involved at all if it had not acquired rights to those assets from the DL trustees. Again, a resolution of DL’s members to transfer DL’s assets to NTN is not the operative decision. In law the transfer of ownership will have been effected by a decision and act of the trustees acting in that fiduciary capacity, though no doubt giving effect to the members’ resolution.
[150] At this point, on the evidence available to me, the trail of ownership runs cold.
[151] A further fragmentation appears to have occurred thereafter. An association calling itself Unlock Democracy emerged. This fragmentation may have generated further assignations, but I have insufficient evidence to make any proper findings-in-fact to that effect.
[152] At various points during the proceedings, on the limited information available to me, I ordered intimation upon parties who appeared to be potential political successors to the CPGB (including DL, NTN and Unlock Democracy). Intimation was also made upon the Crown for such interest as it may have. None of these parties entered appearance. In closing submissions, I was invited to conclude that, as a result, none of these parties was the owner of the library.
[153] In my judgment, the non-appearance of such a party within the present process is not unequivocally indicative of a disclaimer of the asset. Title to the library may remain vested in trustees for DL or in trustees for NTN; or title may have been assigned to trustees of an unknown successor body; or some form of winding-up process, voluntary or compulsory, solvent or otherwise, may have intervened; or, I suppose, it is conceivable that the original conveyance of the library to the CPGB by the late Willie Gallacher’s executors was subject to an express condition or destination that may resolve the current predicament; or, perhaps, the library was subsequently abandoned. I can only speculate.
[154] In any event, in these proceedings neither the pursuer nor the second defender has established that the library belongs to them.
The pursuer’s rights as depositary
[155] However that is not the end of the matter.
[156] In closing submissions, I raised the possibility with the parties’ agents of neither party vindicating a right of ownership. I invited submissions on what was to be done in that event. It was submitted that I should merely decide which claimant was to be “preferred”. No further guidance was offered.
[157] The role of the court in a multiple poinding is not to “prefer” a claim or claimant in the abstract. For example, in the present case I could not “prefer” one claimant over another merely by reference to political sympathy or because one party’s proposed plans for the disputed property seemed more attractive than another. These are not relevant considerations. I can only “prefer” a claim on a legitimate basis, founded in fact and law.
[158] In my judgment, while the pursuer has failed to prove ownership, she has established a lesser right as depositary to the custody, control and management of the fund in medio.
[159] Ownership is to be distinguished from possession; possession is to be distinguished from custody or deposit; and a distinction is to be observed between simple deposit for custody and deposit for safe-keeping, the latter implying a greater degree of vigilance (Bell, Principles, 212). A librarian is a classic illustration of a custodian. A librarian does not hold or keep a library for his or herself but merely holds it for another. The true owner has civil possession through the librarian.
[160] In my judgment, in May 1987, in the face of impending eviction, Mrs Canning, the good and faithful librarian, was entrusted by the CPGB with the custody and safe-keeping of the library. This was done via the delegated authority of the then secretary of the Scottish committee of the CPGB, with the subsequent knowledge and approval of the Scottish committee (to whom Mr Ashton reported), and in due course with the knowledge and approval of the CPGB executive committee in London, to whom the Scottish committee regularly reported. The provenance and cherished nature of the library, and the fact that the pursuer was known to be accompanying the library to its sanctuary within the STUC (with accommodation and facilities being made available for her there to continue her voluntary work with the library), also support the inference that in May 1987 she was being personally entrusted by the CPGB with the custody and safe-keeping of the library.
[161] She discharged her custodial duties with distinction for over 25 years. On her own initiative, she identified a sanctuary for the library within the STUC premises; with her own hands, she packed, flitted and then reassembled the entire collection there; a decade later, she repeated the exercise, securing refuge for the library within GCU; and throughout the entire period since taking custody in May 1987 she has been the constant guard and keeper of the collection for no financial reward. Such limited rights of custody as were obtained by the STUC and latterly by GCU derived solely from, and were revocable at the instance of, the pursuer as the principal custodian.
[162] That said, the pursuer’s rights as custodian (or, more correctly, as gratuitous depositary) are precarious. They are revocable at any time at the instance of the true owner. Her ultimate duty as custodian is to restore the library to the owner on demand (Bell, Principles, 210-215). There is no evidence that she has yet been called upon to do this. In the meantime, her legal duty as depositary is to keep and safeguard the asset. If she fails to exercise reasonable care in the discharge of that duty she may be liable in damages to the owner. In order to discharge that duty, pending restoration on demand to the owner, she has the right, in her capacity as depositary, to have custody, control and management of the library.
[163] Turning to the pleadings, the order sought by the pursuer in the crave is merely for “transfer” of the library to her (which I take to mean “delivery”). The supporting plea-in-law speaks of the pursuer being entitled to “possession” of the library. Neither the crave nor the pursuer’s plea-in-law explicitly asserts a right of ownership. In article 1, the pursuer avers that the action is brought “to transfer the fund in medio from [GCU] to the pursuer”.
[164] That said, it is correct that the later averments (in article 3) record the pursuer’s claim of ownership of the fund. That claim has proved to be unfounded. However, on the evidence, I conclude that the pursuer has established a lesser right as depositary and to that extent she is entitled to be ranked and preferred upon the fund in medio.
[165] For completeness, I should record that, in the peculiar circumstances of the present case, where neither competing party has established a right of ownership, I considered whether further procedure might be appropriate to try to identify the true owner. I have concluded that further procedure is not appropriate. The action was intimated upon multiple entities who, from time to time, emerged as potential political successors (and prima facie potential assignees) of the CPGB, but all to no avail. If the asset is held in trust, the identities and whereabouts of those trustees are not presently known. Meanwhile, the library has been closed to the public for over two years now, to the dismay of academics and researchers in this field; the parties to the action have expended considerable effort and expense in seeking to vindicate their claims; and, in my judgment, they are entitled to an adjudication of those competing claims without further delay – and, specifically, to an adjudication of the identity of the party who is, at least, entitled to custody, care and control of the library. For those reasons, the appropriate disposal is to bring this action to a conclusion by granting decree as aforesaid.
[166] The decree pronounced by me, in the context of this competition, is res judicata against all parties in the proceedings. But rights and remedies otherwise available to a non-compearing claimant, such as the true owner or any third party claimant who can instruct a better right than the pursuer, are unaffected (in so far as such a superior claimant was not cited in the present proceedings) (Decrees in Absence Act 1584; Maclaren, Court of Session Practice, 672; Walker, Civil Remedies, 1238-1239).
[167] Lastly, I would observe that how the pursuer chooses to exercise her rights as depositary, within the confines of her implied legal obligations, is a matter for her judgment. For example, she may choose to reach an agreement with GCU for the continued safe housing of the library within the University’s special collections department, or she may choose to relocate the library to an alternative sanctuary. The former has the attraction of pragmatism, and one would hope that the pursuer and the University might give serious consideration to that option. Ultimately, though, the decision is a matter for the pursuer. She is the duly entitled custodian. She alone has power of control and management. Of course, she may be answerable to the true owner for any deficiency in the exercise of her legal obligations as depositary.
[168] I shall reserve the issue of expenses meantime, pending further submissions.