11 July 2012

Captain Calamity's ship sails again...

You can almost imagine the twinkle in Lord Pentland's eye.  Stuart Hill was suing the Royal Bank of Scotland for the pretty sum of £23,583,434.55. From the judgment (and I dare say, from the submissions of the pursuer), it isn't exactly easy to understand why Hill believed that the bank owed him this vast pile of lucre, but believe it he did. Curiously, Hill also claimed that, as a Shetland resident, the Court he had had resort to to press his claim against RBS enjoyed no jurisdiction over him whatever.   

At this point in proceedings, you may well feel a dim recollection for another Stuart Hill, also now of Shetland, also known as "Captain Calamity" after his disastrous attempt to circumnavigate the British isles, only moderately better supplied than Edward Lear's Owl and the Pussycat.  At least that naval pair had a five pound note to cover the cost of their rescue.  More recently, Hill has received occasional attention in the press as an amateur jurisprude and secessionary nationalist.  Interested in the distinct legal status of the Shetland isles, Hill is the founding father of the breakaway People's Republic of Forvik, a purported Crown Dependency which Hill declared in the summer of 2008. He writes that:

"The whole of the UK government's authority in Shetland rests on the assumption that Shetland is part of Scotland. My research since 2002 into Shetland's unique history leads me to the inescapable conclusion that it never happened - and that it could never have happened."

Hill's million-pound claim was rejected on other grounds. Afforded the opportunity to pronounce on these matters, however, Lord Pentland couldn't resist taking up the history books, and Hill's argument about the legal status of the Shetland islands. There is, he says, no doubt that as a matter of law, Shetland has been folded into Scotland. It also presented a rare chance aptly to use the word "impignoration" in a sentence...

[19] I should add that the defender also sought to argue, on the basis of a 72 page historical analysis set out in his Note of Arguments (number 18 of process), that the court has no jurisdiction against him because he resides in Shetland, which he contends is not part of the United Kingdom. The defender's arguments, as I understood them, rested on the proposition that the Pawning Document granted by King Christian I of Denmark and Norway in 1469 only pledged about 3 or 10 per cent of the land in Shetland. This was, according to the defender, a private arrangement relating only to the king's lands in Shetland and it left the remainder of the land of the islands in the outright ownership of the people of Shetland. Even today that continued to be the position with the result that sovereignty over the islands continued to reside with the 90 or 97 per cent of land-owning inhabitants, who were "sovereign in their own right".

[20] In my opinion, the proposition that the Court of Session does not have jurisdiction in the present case is flawed and must be rejected. It would be unsatisfactory and surprising if the Court of Session did not have jurisdiction to reduce a statutory demand served on a Scottish company at its registered office in Scotland by a person residing in Shetland. It is obvious that there are very strong factors connecting such a case with this court. It seems to me that by instituting in Scotland a legal process which could potentially lead to the winding-up of a Scottish company by the Scottish courts the defender must be taken to have impliedly accepted that it is for the Scottish courts to rule on the validity and legality of the steps taken by him as part of that legal process. So even before one comes to consider the defender's contention that he does not live in Scotland it can immediately be seen that the present case has particularly strong and obvious connections with the Scottish courts.

[21] As to the historical background, it seems to me that it must now be regarded as settled in law that Shetland forms part of the United Kingdom and lies within the territorial jurisdiction of the Court of Session. Questions of the type that the defender sought to raise at the debate as to the exact nature and extent of what was pledged by the impignorations of 1468-69 nowadays fall to be addressed by historians rather than by the courts. As I understand it, one effect of the 1468-69 arrangements was that King Christian commanded those living in the Shetland Islands to pay their taxes to the Scottish Crown and to obey the Scottish king until the islands were redeemed. They never have been redeemed and the right of redemption must, I think, now be regarded as having been lost.

[22] From the sixteenth century Scottish law and customs increasingly infiltrated life on the islands. As the Lord Ordinary (Lord Hunter) explained in the St. Ninian's Isle Treasure case (Lord Advocate v University of Aberdeen and another 1963 S.C. 533 at 540) from an early stage following the impignorations the Scottish Parliament assumed the right to legislate for Shetland (as well as Orkney) as part of the Kingdom of Scotland. By a gradual process the local judicial institutions and laws of the islands were encroached upon and superseded by the judicial institutions and law of Scotland.

[23] I note that in the Stair Memorial Encyclopaedia (Volume 24, paragraph 328) the view is expressed that there is a strong case for assuming Scotland's acquisition of dominium over Orkney and Shetland prior to 1707 and that the Treaty of Union did nothing to displace this. The Scottish (and hence the British) title to Orkney and Shetland was well-established by 1707. There is, in my opinion, considerable force in the views on the subject expressed by the distinguished international lawyer Professor John Grant; these are quoted in the same paragraph in the Stair Memorial Encyclopaedia. Professor Grant takes the view that Shetland (and Orkney) form part of the United Kingdom. He observes that for a very long time there has been peaceful, open, continuous and effective occupation of Shetland by the British Crown. This has been coupled with a clear and unequivocal intention on the part of the Crown to act as sovereign. There is no competing claimant in modern times. For some considerable time past the United Kingdom has, Professor Grant points out, undoubtedly exercised full sovereign powers over Shetland. The long-established exercise of sovereignty over Shetland by the United Kingdom results, in his view, from the exercise of a full range of governmental and legislative functions over the islands over a large number of years without interruption or, it may be added, challenge. All this seems to me to be undoubtedly sound.

[24] I note also that in Lord Advocate v University of Aberdeen and another supra Lord Patrick, whose opinion was concurred in by the other members of the Inner House, said this (on page 556):

"What is certain is that since 1468 the right of sovereignty over the (Shetland) islands has belonged to the kings of Scotland and afterwards of Great Britain."

[25] Lord Mackintosh observed (at page 560) that Shetland "is and has for long been under the sovereignty of the Scottish and thereafter the British Crown".

[26] In my opinion, as these statements in the Inner House clearly show, it is now settled that, as a matter of law, Shetland is part of the United Kingdom. The British Crown has the right to exercise sovereignty over the islands. Scots Law applies there and the Scottish courts have territorial jurisdiction there. In the circumstances, I have no difficulty in holding that this court has jurisdiction over the defender in the present action.

That Royal Bank of Scotland v Stuart Hill judgment in full.


  1. If the King of Denmark only had authority over 3% of Shetland at the time then surely that means that Shetland was nothing more than a part of Scotland under viking occupation? Therefore all the unionist wittering is just that. A scare story based on a lie.

  2. Anonymous,

    I think it is stretching it a bit to call Stuart Hill a unionist...