Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Patterson v Butler & Anor [2001] ScotCS 282 (11 December 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/282.html
Cite as: [2001] ScotCS 282

[New search] [Help]

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD CARLOWAY

In the Petition of

JOSEPH PATERSON

Petitioner;

against

(First) CATHERINE BUTLER; and (SECOND) NORTH LANARKSHIRE COUNCIL

Respondents:

For

Authority to disinter the remains of the late Margaret Dunn or Black and Peter Butler junior

________________

Petitioners: Summers; HBM Sayers (for Trainor Alston, Coatbridge)

First Respondents: Bowen; Drummond Miller, W.S.

Second Respondents : Ferguson Q.C.; Simpson & Marwick ,W.S.

11 December 2001

1. The Pleadings

The petitioner avers that on 14 April 1961 he acquired an exclusive right of burial for sixty years in lair number 906 at Saint Patrick's Cemetery, New Stevenson, conform to the terms of a certificate to that effect granted by the then owners and managers of the cemetery, the Cemeteries Board of the Diocese of Motherwell. His mother-in-law, Helen Mitchell, was buried in the lair on that date. The petitioner maintains that two other persons, members of a family called Butler, have been buried in the lair by mistake. These are Margaret Dunn or Black and Peter Butler junior, buried respectively on 29 September 1984 and 19 July 1995. The Butler family have an exclusive right of burial in Lair 609 and two other members of that family have been buried there, namely Peter Butler, on 10 March 1929 (the date of the Butler lair certificate) and Robert McCann on 22 September 1933. The problem with Lair 906 was discovered by a member of the petitioner's family in about October 1994, when he found that a gravestone commemorating members of the Butler family had been erected on the lair. Following upon complaints by the petitioner's family about the situation, the Cemeteries Board, whose duties passed to the second respondents; predecessor authority, Motherwell District Council, in the 1970s, issued a "duplicate" certificate for Lair 906 to one of the Butler family in November 1994. The petitioner seeks an order obliging the second respondents to disinter the remains of Margaret Dunn or Black and Peter Butler and to re-inter them in accordance with the wishes of the Butler family. He avers that it is possible to remove the remains of Margaret Dunn or Black and Peter Butler and re-inter them somewhere else.

Despite being the successors both in title to and management of the cemetery, the answers to the petition by the second respondents, which are essentially adopted by the first respondent, admit little about the location of the remains of the various deceased persons buried in the cemetery. Although the answers narrate much of the content of various cemetery records, that content is not accepted as fact. In particular, the second respondents do not accept that Mrs. Mitchell lies buried in Lair 906. They do admit that Margaret Dunn or Black and Peter Butler junior were buried in Lair 906 on the dates specified but not that Peter Butler (senior) or Robert McCann have been buried in Lair 609. They do not even seem to accept that the lair certificate issued to the petitioner evidences what it purports to grant but do admit that a lair certificate for Lair 906 was issued to the first respondent's family by the second respondents' predecessors in November 1994. On the positive side, the second respondents aver that human remains are sacred and that :

"Having regard to the ground conditions in the cemetery, the close proximity of other lairs and the time the remains have been buried, it is impracticable to disinter the remains of Margaret Black and Peter Butler (junior).".

The proof focused upon: (i) the petitioner's title; (ii) the burial place of Helen Mitchell; and (iii) the practicability of disinterring the remains of Margaret Dunn or Black and Peter Butler (junior).

2. The Petitioner's Title

(i) The Petitioner's Certificate

In the course of the proof, a joint minute was entered into which agreed that copies of all productions are to be treated as principals. At the commencement of the proof, the critical document of title was simply a black and white A4 size photocopy of the relevant lair certificate (No. 6/1 of process). The original, which was produced in the course of the proof (Pro. 6/13) was a folded document of some vintage which had been kept for many years in a drawer contained in a pocket-sized brown coloured envelope emanating from funeral directors, marked with their name and various addresses and bearing the bold legend : "Title Deeds". The petitioner was aged 81 when he came to the proof. Despite spending over forty years in the United Kingdom, he had a limited command of English and gave his evidence through an interpreter. Not surprisingly, he had some difficulty in recognising what the photocopy was. The same difficulty applied to his wife Ellen (aged 82). However, both gave evidence that the petitioner did have a certificate for Lair 906 and Ellen Paterson, and probably her husband too, did ultimately identify the photocopy as the certificate. Ellen Paterson spoke to having the lair certificate and it being looked out by her son John when the problem with the lair arose. The copy certificate (Pro. 6/1) was also spoken to, without objection, by the petitioner's two sons John and Anthony Paterson and indeed by the final witness in the case Kenneth Forbes, the second respondents' officer presently in charge of the issue of lair certificates. The certificate bears to be a certificate from the Cemeteries Board of the Diocese of Motherwell relating to the petitioner and to Lair 906. Although counsel for the first respondent submitted that I should not be satisfied that the certificate had properly been identified, I am satisfied that it has been proved to be what it bears to be and was issued by the second respondents' predecessors to the petitioner.

The Certificate reads :

Reg. No. 4708

"We, the Cemeteries Board of the Diocese of Motherwell

DO HEREBY CERTIFY THAT

Joseph Paterson 19 Dean St Bellshill

has been entered in the Books of

St. Patrick's Diocesan Cemetery,

New Stevenston, Lanarkshire, as the holder of the exclusive right of burial in Lair No. 906 Section 1 Class A of the said Cemetery, and that for a period of Sixty Years from the date hereof...IN WITNESS WHEREOF these presents are subscribed at New Stevenston on our behalf by our Superintendent at St. Patrick's Cemetery aforesaid on the 14^th day of April 1961

"signature" Superintendent"

(ii) The Cemetery Records

Apart from the content of the certificate itself, the petitioner's entitlement to burial rights in the Lair was supported by certain records of the cemetery. Copies of pages of a number of different records were produced. In some cases, the principal books were made available momentarily for comparison purposes. None of the parties seemed concerned about the absence of principals especially given the agreement relative to copies. However, as a generality, where, as here, there was so much focus on the content of the records, I did not find the use of copies at all helpful. This was especially so where, in addition, none of the authors of the records gave evidence. Maybe that was because in some, but perhaps not all, instances the authors were themselves deceased but there was no evidence about that. It was also problematic in the situations which arose where certain informal markings on the records were specifically referred to during the proof but which, it was suggested, had been made at a different time from the main body of the particular record. Equally, it made it more than usually difficult to gauge the weight of the eventual submission for the second respondents that limited reliance ought to be placed upon the accuracy of these records, the product of their predecessors in the management of the cemetery.

The first copies were pages from "Section Books" (Pro. 7/13 and 14). Apart from certain introductory references from the first witness at the proof (the petitioner's son John), who had no connection with the records, these copies were spoken to by Peter Douglas, the second respondents' chargehand gravedigger at St. Patrick's Cemetery, albeit that he did not make entries in these books and did not seem to consult them for any purpose either. I assume that the books are so called because they contain entries relating to the various sections. The entries are in numerical order according to lair and contain a cross-reference to the lair certificate number together with an apparent price paid for each lair. The relevant entries in the two productions were :

196	Mrgt Butler	609	2 2 6
4708	Joseph Paterson	906	6 5 -

Next were copies of pages from the "Lair Owner Books" from 1961 and 1929 (Pros. 7/15 and 7/16 respectively), again referred to by Mr. Douglas, who once more did not seem to make entries in or consult these volumes. The entries this time are in chronological order of lair purchase and the relevant ones (1961 at the top) were as follows:

April	14	4708	Joseph Paterson	19	Dean Street, Bellshill	906	1	A	" "	6 5
March	13	196	Margaret Butlar	53	Park Street, Motherwell	609	1	A	Single Lair 8 feet deep	2 2 6

These entries vouch the proposition that the petitioner purchased burial rights in Lair 906 on 14 April 1961 and Margaret Butler (or Butlar) purchased the same in respect of Lair 609 much earlier, on 13 March 1929.

(iii) The Butler Certificate

No member of the Butler family gave evidence. At the start of the proof I was provided with a soul and conscience medical certificate dated 27September (some weeks before the proof) relating to a Kathleen Butler (aged 81) which said:

"She would be too anxious to give coherent evidence and I think she would just break down in court. I therefore certify in soul and conscience that she is unable to attend court.".

I was not asked to make anything of this by counsel for the first respondent. I am not sure what I would have made of its somewhat odd terms. It was not suggested that one or more of the Butler family, and in particular the first respondent, could not have given evidence either in court or using one of the alternatives to appearing in court. The absence of any form of evidence did leave the Court somewhat in the dark about the first respondent's position. However, during the course of the evidence, reference was made (for example by the petitioner's son John Paterson) to the Butler family certificate (Pro. 7/38). This reads:

" Reg. No. 196

This is to Certify that Margaret Butler 53 Park Street Motherwell is entered as Holder hereof, in the Books of the St. Patrick's Catholic Cemetery, New Stevenston, by Holytown, as Proprietor of the exclusive right of burial,...in Tomb No. 609 Section No 1 Class A. It being declared that the LENGTH of the said Tomb shall not exceed 7 1/2 feet nor the BREADTH thereof exceed 3 feet, Single Lair...

Witness my hand, in name of the Bishop this 13^th day of March 1929

"Francis McGlynn Supt""

It is of interest that there is no time limit specified on this certificate. On the other hand, specific dimensions are noted.

Reference was also made during the proof to two further document issued after the complaints by the petitioner's family. The first (Pro. 7/19) read as follows :

"D U P L I C A T E

CERTIFICATE

OF REGISTRATION

MOTHERWELL DISTRICT COUNCIL

CEMETERIES

THIS IS TO CERTIFY THAT Margaret Butler residing at Fifty Three Park Street Motherwell is the owner of the Exclusive Right of burial in the Lair numbered 906 in section 1A of St Patricks Cemetery to be by him/her and his/her successors, holden in perpetuity...

For and on behalf of Motherwell District Council at Motherwell, on the Twenty Eighth day of November Nineteen hundred and Ninety Four

"Paul Jukes"

Registrar of Cemeteries"

Just how the second respondents' predecessors' official managed to issue a "duplicate" of a certificate which never, so far as I am aware, existed was not explained. Mr. Richard Williams, the second respondents' cemeteries manager, could not explain it and Mr. Jukes, the issuer of the certificate, was not called as a witness. However, in due course, the rights referred to in the "duplicate" were subject to a further document in the following terms (Pro. 7/39) :

"T R A N S F E R

CERTIFICATE

OF REGISTRATION

MOTHERWELL DISTRICT COUNCIL

CEMETERIES

THIS IS TO CERTIFY THAT Catherine Butler residing at One Caldergrove Motherwell is the owner of the Exclusive Right of burial in the Lair numbered 906 in section 1A of St Patricks Cemetery to be by him/her and his/her successors, holden in perpetuity...

For and on behalf of Motherwell District Council at Motherwell, on the Fifteenth day of August Nineteen hundred and Ninety Five

"Paul Jukes"

Registrar of Cemeteries"

It would seem that, notwithstanding the certificate and record entries showing the petitioner as the holder of Lair 906, somehow a "duplicate" certificate for the same lair, and a transfer thereof, were issued to members of the Butler family.

3. The Burial Place of Helen Mitchell

(i) General Location of Lair 906

The general location, topography and layout of St. Patrick's Cemetery was not in dispute and is shown on a number of plans and sketches produced. The cemetery is divided into a number of sections and classes, the nature of which was not explained, with the relevant Section 1 Class A being an area on the cemetery's north east side (Pro. 6/4). On the northeast side of the section itself is situated the main cemetery entrance and caretaker's house. To the east of the section beyond new housing on Catherine Way is St Patrick's primary school (Pro. 6/5). To the west of the cemetery are the cooling tanks of Stewart & Lloyd's steel works. Section 1 is rectangular. It is bounded by paths running parallel to eachother on, respectively, north-south and east-west axes. Between the two east-west paths are a series of paths running north-south dividing the graves into areas each containing two rows of lairs, between which the gravestones are located (Pro 6/2). One area has two rows, the western one commencing with Lair 841 on the north and running uphill to Lair 924 on the south and the eastern one commencing with Lair 840 and ending with Lair 757. It is on the western row of this area that the critical Lair 906 is situated (Pro. 6/3). The area immediately to the east again contains two rows, this time running from 673 to 756 and 672 to 589. On the eastern row of the two lies the other important lair, number 609. It is located at a similar distance from the east-west paths as Lair 906 but is some three rows distant from it (Pro. 6/3). In its present state, Lair 906 can be seen with the Butler gravestone facing west on photograph no. 6/12 of process. The location of Lair 609 can be seen to the east beyond the rhododendron bush to the left of the yellow flowers (the men in photograph 15 of Pro 7/32 are standing at the foot of the respective lairs; for an opposite view see photograph 12).

(ii) The Excavations of 906

In about September 1994 the petitioner's family raised the issue of erroneous interments with the second respondents' predecessors. According to Ian Clarkson, the complaint was initially to a Mr. Kevin Morrison at the cemetery and passed on to him at his normal place of work as a chargehand gravedigger at Cambusnethan. Mr. Clarkson looked at some of the records and noted certain pencil markings (see below). A decision was taken to open Lair 906 to ascertain the position. This was done the following month (October 1994). A coffin (the Upper coffin) bearing the nameplate of Margaret Dunn (or Black) was found. No other coffin was seen at that time. Peter Butler junior was, of course, not yet dead.

Shortly before the proof commenced, and after Mr. Butler junior's interment in July 1995, a trial pit was dug at Lair 906 as part of investigations carried out by the petitioner's expert engineer, Mr. Richard Apted. This revealed three coffins (Pro. 30 Figure 2). The lid of the first (Upper) coffin lay some 19.5 inches from the surface. The end of this coffin was exposed by the trial pit (Pro. 30 photos. 3, 4 and 5; see also Pro. 7/33 photos. 1-4). This is the coffin of Peter Butler junior. No coffin could be seen directly below this one but as a result of probing, one (Intermediate) was found inset from the end of the Upper coffin by 2 to 3 inches. It appeared to be otherwise almost directly under the Upper coffin. The top of this Intermediate coffin (or the bottom of the top one) was about 33 inches from the surface. The trial pit also revealed a top corner of a third (Lower) coffin below the Intermediate one but out of alignment to the east of the other two. The corner of the Lower coffin was some five inches from the centre line of the Upper coffin and 47 inches below the surface. The corner can be seen at the foot of the tape measure on one of the photographs (Pro. 7/33 photo. 5 at the bottom of the tape measure).

One contentious issue was whether this Lower coffin was in Lair 906 at all, as distinct from being in 907. According to a drawing produced by the second respondent's expert, Mr. Duncan McCallum, (Pro. 7/37 sketch B), this Lower coffin was at such an angle to the other two coffins that it projected well into Lair 907. Mr. McCallum had been present at the trial pit excavation. For reasons stated below, I preferred the evidence of Mr. Apted to Mr. McCallum where it conflicted on matters of measurement and angles. On this particular point, Mr. Apted had not described the Lower coffin as lying at a significant angle to the other two but Mr. McCallum's evidence was that he had never seen a coffin so far out of alignment in a grave space. He had been "amazed" to find it at such an angle and alignment. However, he had not expressed this amazement at the time of the trial pit albeit that Mr. Apted was trying to secure agreement on dimensions. I have reached the view that Mr. McCallum's evidence on this point was exaggerated and is not to be relied upon. The coffin may be at an angle but I doubt whether it is likely to be significant. I am satisfied that the Lower coffin discovered was buried intentionally in Lair 906 and is probably running reasonably parallel with the other two coffins which slightly overlap it.

(iii) The Cemetery Records

Copies of pages from two further sets of records were produced relative to the burials at the cemetery. These were first the "Day Books", being a Register of Interments (Pros. 7/9-12). This time Mr. Douglas was in a better position to assist in interpreting the entries as he was accustomed to make entries in this set of books after burials albeit that he did not make the particular entries. The relevant entries are of burials chronologically recorded as follows :

Month	Date	No.	Name of Deceased	Years	...	Reg. No.	No. of Lair	Sect	Class	Depth of Opening	£sd
(1929)
March	13	41	Peter Butler	44		196	609	1	A	8 feet	1 16s
(1933)
Sept	22	144	Robert McCann	8 1/2		196	609	1	A	6 feet	17s
(1961)
April	14	113	Helena Mitchell	77		4708	906	1	A	6 feet	6 10s
(1984)
Sept.	26		Margaret Dunn	94		196	609	1	A	5'	22 15

These entries correctly record dates of burial, names of deceased, the relevant lair registration numbers, and the lair where the deceased persons ought to have been buried. They also record depths of burials. A better copy of the 1961 page (Pro. 7/40) showed that there had been up to thirteen burials in section 1A in April of that year although Mr. Douglas doubted the correspondence between some of the lair numbers entered with the section.

The next set of copies was from the "Reference Books" (Pro 7/7 and 7/8). Mr. Douglas would also complete the entries in these books although he did not make the particular entries. The books are set out under reference to individual lairs and, in respect of each lair, set out who has been buried in them. The relevant entries are as follows :

7 feet deep REG No. 196 LAIR 609 SECTION 1 A CLASS
13 Mar	1929	Peter Butler adt
22 Sept	1933	Robert McCann 8 1/2 yrs
26 Sept	1984	Margaret Dunn adt see 906

The entries "see 906" and "adt" (adult) for Mrs Dunn are in pencil and no one was able to say who had written them or when or why they were written.

REG No. 4708 LAIR 906 SECTION 1 A CLASS
14 4 61		Helena Mitchell adt	5' see 906

Again the entry "see 906" is in pencil. The entry "5'" was said to stand for "5 feet" but it is the only dimension on the relevant page of the book and when or why it was written was not established. Mr. Clarkson was of the view that the "5 feet" entry related to the depth of available space after the burial had taken place (i.e. to the top of the last coffin interred) and not the depth of the lair as dug for that coffin. He himself made similar such entries. His explanation seemed likely since, assuming the entry to be made at the time of or immediately after a burial, it would convey to subsequent gravediggers what remained for future interments. Just how accurate the entry was supposed to be, I cannot tell.

According to Mr. Douglas the books were not accurate in relation to the position of deceased persons in the ground. This was also the evidence of Kenneth Forbes, the most senior of the second respondents' officials to give evidence. It was certainly true in relation to the entry for Margaret Dunn in 609, because she is known to be in 906. Otherwise the books at least appeared to be kept regularly and I was not at all persuaded that in general the books were not to be relied upon. Indeed, I noted that the second respondents themselves relied upon them for certain purposes both generally and in relation to this case. I observe for example that the content of the records which Mr. Forbes had explored relative to Lairs 905 and 906 (Pro. 7/41) (see below) seems to have been borne out by the probing of these lairs as instructed by him. So far as the original entries for Peter Butler senior and Mrs. Mitchell are concerned, I am at least prepared to accept the entries as evidence pointing towards the fact that they were buried respectively in Lairs 609 and 906. I think the records also point towards Robert McCann having been interred in Lair 609 in 1933 when he died when still a child.

(iv) The Relatives' Memories

The evidence of the petitioner's family was not entirely consistent in relation to the location of Mrs. Mitchell's burial place. The first to give evidence about this was the petitioner's son, John Paterson, born 4 December 1956. It was he who had visited the cemetery in 1994, after a gap of perhaps twenty-five years, when he chanced to go to see his girlfriend's father's grave. He had been taken to Lair 906 to discover the Butler gravestone upon it. John Paterson would have been 41/2 years of age at the time of his grandmother's funeral. He said that he had been at the burial on 14 April 1961 (see funeral account Pro. 6/7) and I suspect that is correct. An event such as the burial of a grandmother is something which may remain in the mind of even a very young child. I am not convinced that any reliance can be placed upon his recollection of events at the burial but little turns on such evidence alone.

According to John Paterson, after the burial the family regularly visited what they took to be the grave of their grandmother. The grave was never marked with a formal gravestone. The family would visit so as to look after the grave, the maintenance being the responsibility of the family until the local authority took it over. John Paterson maintained that Lair 906 was that grave. Although he would no doubt have followed his parents in locating the precise spot, he did know that the lair was in the same row as the grave of Joseph Steppie, who had a connection with his own family. The gravestone for Mr. Steppie was used as some form of method of locating his grandmother's grave at least in John Paterson's mind. He had taken a series of photographs illustrating the fact that the Steppie gravestone is indeed on the same row as Lair 906 (Pro. 6/12). The Steppie gravestone is shown in photograph 6/12 F xii (see Pro. 6/9 for a close-up) and the row can be followed southwards to photograph 6/12 F i. It is John Paterson's handwriting on photographs 6/8 and 6/10 which show the respective positions of lairs 906 and 609

John Paterson had obviously put some effort into the present case and taken some care to research some of the issues. Ultimately, his evidence was criticised for being "rehearsed" but I do not consider that such criticism is merited. He had certainly done his "home work" but that is understandable since he seems to have played a major role in pursuing this matter. I found him to be credible and, on the issue of the location of the grave he regularly visited from 1961 until the late 1960s or later, reliable.

The petitioner himself (born 10 May 1920) gave evidence. It was often difficult to follow just what he was saying. As noted above, his English was not good and yet it seemed difficult for him not to attempt to respond to questions as best he could in English rather than through the interpreter. I was content with the petitioner's credibility. However, possibly because of a combination of difficulties arising in translation but mainly because age and time had not assisted his memory, I did not find his evidence on the location of his mother-in-law's burial place reliable. Indeed, he himself accepted that he was having difficulties in that regard. For example, as noted above, he had difficulty recalling where he had obtained the copy lair certificate and, when being asked about it, he focused upon the time of his marriage when he had changed his name. His marriage was on 14February 1953, years before the lair certificate was obtained. He appeared to think that the certificate had emanated from the registrar at the time of the marriage but this was clearly not the case. He had, of course, been at the burial but his recollection was that none of the children had been there. I thought that unlikely, especially given that his oldest son Anthony would have been almost seven at the time. He said that he thought Mr. Steppie was buried in another "row" but I was not convinced that he understood what was being meant by "row" and I did not place reliance on this reply. What he did say was that he would have no objection if the remains of his mother-in-law were disturbed by the operation to move those above her coffin. Since that was a statement of his present state of mind, I accepted it as accurate

The petitioner's wife Ellen Paterson also had difficulty in relation to the copy

lair certificate, interestingly in a similar manner to her husband. I had no difficulty in finding her credible but she seemed very anxious when giving evidence and was, I think understandably, confused when being asked to orientate herself and her mother's grave on one of the plans produced. She had difficulty describing how she got to the grave, which she said she did by finding the right path with reference to a particular cross in a row of gravestones marking the resting places of deceased priests. Despite it not having been established that any particular cross is situated at the end of the particular row, I accept that this method is the one that she adopted and found her evidence also otherwise reliable. In particular, what she did say was that her mother had been buried in Lair 906 and when she visited the grave frequently thereafter the Stewart & Lloyd's works were behind her and St. Patrick's school in front. The Steppie gravestone was on the same path. She said that it had been her mother's wish that she and her husband be buried alongside her. Most important, she said that she could not forget where her mother was buried. I accept this albeit that there was evidence that, naturally, she was in a bit of a state at the burial. I do not think that there was any real possibility of her and the family returning to visit the wrong grave in the weeks after the burial. I have no doubt that they visited the correct grave and that Mrs. Paterson's recollection of it being where Lair 906 is located is accurate. This is despite anecdotal evidence from Mr. Thomas McCafferty, one of the second respondents' gravediggers, that relatives are occasionally mistaken in such matters at least if they do not visit the grave until six weeks or so after the burial.

Finally, there was Anthony Paterson, born 27May 1954. He said that he had been at the funeral and had been in the crowd at the cemetery, although not necessarily at the graveside. He visited his grandmother's grave regularly until he was about 11 (i.e. for about three years). He too put the steel works behind him when looking at the grave and the caretaker's house in front. He also put the Steppie grave in the same row. He was able to point to the approximate location of the grave on a plan (Pro 6/3). He gave his evidence with care and I accepted it as credible and reliable.

(v) The Excavations at 609

At about the same time as the first excavation of 906 in October 1994, it was also decided to look at 609. In the Lair Owners Book (Pro. 7/16) the entry for 609, no doubt made in 1929, shows the depth of Lair 609 as an unusually deep 8 feet. The Day Book (Pro. 7/9) shows the opening at the time of Peter Butler's death in 1929 as 8 feet. The Reference Book (Pro. 7/7) shows the grave as 7 feet deep but, as noted above in relation to Reference Books, that may have been a measurement of the space left in the grave after a burial rather than the original opening. According to the Reference Book (Pro. 7/7) one would expect to find in Lair 609 the bodies of Peter Butler (buried 1929) and Robert McCann (aged 8 1/2) (buried quite soon after in 1933).

According to Mr. Clarkson, who was present at the first excavation of October 1994, the digging revealed a coffin, the top of which was some 5 or 6 feet from the surface. This coffin was only partially exposed. It was filled with water. Seemingly only the sides could be seen. The lid had collapsed and no nameplate was found. Mr. Clarkson was sure it was an adult coffin. He thought it might have been the first one buried in the lair and no other coffin was exposed by the excavation. Similar evidence was given by Richard Williams, the second respondents' cemetery manager, who described the water as six inches above the level of the coffin and the use of pails to bail it out. Again he thought this would be the lowest coffin since otherwise the total original excavation of the lair would have to have been eight feet, which coincidentally happens to be the recorded depth.

James Wardrope and Thomas McCafferty, gravediggers, were involved in a second search for a nameplate in about January 1995. Mr. Wardrope spoke to only the head to the shoulders or hip of the coffin being exposed but he thought it was an adult coffin. Water was covering 2 inches above the coffin, which he said was at a depth of 3 to 4 feet. He actually stood on the sides of the coffin and could see the lid split into a collapsed "v" shape. There were metal fragments on the lid suggestive of the original presence of a nameplate but when asked to put his hand into the coffin, he refused. Mr. McCafferty put the depth at 3 feet or deeper and again spoke to just the shoulders being exposed. He too thought it might have been an adult coffin.

(vi) Conclusion

I am satisfied from the evidence of the relatives that Mrs. Helen Mitchell is buried in Lair 906. I am also satisfied that this is correctly recorded in the records produced. She was buried on 14 April 1961 and was the first burial in that lair. It is not disputed that Peter Butler junior was buried in Lair 906 on 19 July 1995. It is also not disputed that Margaret Dunn or Black was buried in Lair 906 and this would have been on 26 September 1984. I am satisfied from the records that Peter Butler senior was buried in Lair 609 on 13 March 1929. Where Robert McCann was buried on 22 September 1933 was not established from the excavations. However, the records point to it being in Lair 609 and, on balance, I think that the records are correct and that he is so buried. In that regard, there are no doubt several explanations for the inability to determine with certainty the location of the child's remains or coffin. Two possibilities spring to mind. First, it may have been that the excavations at 609 revealed the first coffin buried in the lair (i.e. that of Peter Butler senior) and the investigations were insufficient to reveal the child's coffin, assuming him to have been buried in such a coffin. In that regard I was not persuaded, given especially the variances in the evidence of depths , that the coffin found was more likely to have been the first in the lair. Secondly, it may be that the excavators were mistaken in thinking that the partially exposed coffin was that of an adult or contained an adult. Whether either of these explanations is correct or not, and albeit that the matter is perhaps not an essential element in reaching a decision, the failure of the excavation exercise to find a child's coffin does not at all persuade me that the child's remains are not where the records say they are.

Just how the body of Margaret Dunn or Black came to be buried in Lair 906 was unexplained in the evidence. Mr. Douglas said that the current system did not involve him checking any of the records prior to burial. Rather, he would receive a "burial order sheet" faxed to him from the second respondents' main office. This would state, amongst other things, the time of the burial, whose body was to be buried and the lair in which the interment was to take place. I am not sure whether No. 7/20 of process (relating to Peter Butler junior) is an example of this, since Mr. Douglas could not identify it, but no doubt the faxed form is usually in similar terms.

Mr. Williams explained that he was not responsible for sending the instructions to the cemetery but that this was controlled from the cemetery administration office under Jacqueline Macfarlane, who was not called as a witness. For an instruction to have been sent for an interment, the lair papers (certificate) ought to have been exhibited to that office, probably by the undertakers. This was confirmed too by Kenneth Forbes, who was currently in overall charge of the office. Indeed, he thought the lair papers ought to have been checked with the Lair Owners Book. This system had now been computerised and he referred to entries from the present system for Lairs 906 and 609 (Pro. 7/17 and 18).

The mistake does not seem to have been with the undertakers since they had the correct lair number and correct lair certificate number (196) in their records (Pro. 7/6). I think it highly unlikely that the chargehand gravedigger receiving a written instruction to inter a body in Lair 609 would have interred one in Lair 906. In these circumstances, I am persuaded that the instruction from the cemetery administration to the graveyard contained a transposition of "906" for "609" thus resulting in the error at the cemetery. Unfortunately that error was compounded by the inexplicable issue of the "duplicate" certificate even after the petitioner's family had raised the problem with the second respondents' predecessors.

4. The practicability of disinterring the remains

Before considering the detailed evidence on methods of disinterment, I pause to observe that there was no evidence at all that disinterment of the Upper and Intermediate coffins in Lair 906 is impracticable.

(i) Richard Apted

So far as possible means of achieving disinterment of the Upper and Intermediate coffins in Lair 906 are concerned, the petitioner led Richard Apted, chartered engineer, in support of practicability. He had some thirty years experience in several engineering fields and was currently head of environmental engineering in Scotland for the Carl Bro. Group Limited, based in Edinburgh. He had a First Class Honours Bachelor of Science degree in Applied Science. His many other engineering qualifications are set out in his report (Pro. 30). It was true that he had never been involved in the removal of coffins before but he had experience of working in situations where great care was required, including in the oil and gas industry.

His instructions were to consider the feasibility of removing the remains "without disturbance". This meant without disturbance even to the coffins, far less the remains. His solution may fairly be described as the Rolls Royce of disinterment methods. In devising it, Mr. Apted had in mind the "worst case scenario" so far as both the degenerate state of the coffins and the ground conditions were concerned. He had looked at the undertakers' records for the Upper coffin (Pro. 7/6) and noted a reference to "oak". He observed the end of the Upper coffin as being in good condition. He had looked at the records for the Intermediate coffin (Pro. 7/5) and the entry there of "W.O." had, on inquiry with the undertakers, meant waxed oak. However, Mr. Apted was not under any misapprehension that the coffins were made of solid oak. In any event, since he assumed there was a risk of even the Upper coffin being unable to withstand a lift without at least losing its base, any error in the coffin construction was not material. He assumed that the Intermediate coffin would be in a poor condition. In relation to ground conditions, a particular element of his expertise, he had regard to the fact that ground water had been found above the level of the base of the Intermediate coffin at 46 inches from the surface. The ground above that water was well compacted. It was in good condition in that it would stand vertically when cut. Nevertheless, Mr. Apted advised that trench sheeting might still be required.

The solution proposed by Mr. Apted involved excavation to the depth of the Upper coffin. Assuming that this coffin was thought not to be of sufficient strength to survive direct lifting, plastic sheeting and lifting straps could be slid underneath it and it could then be removed manually. If, upon excavation, there was thought to be a risk that this would not work then a second method could be used. This method should, but purely because of his perception of the need to use a "precautionary principle", be adopted in any event with the Intermediate coffin. This second method would avoid any problems relative to a coffin breaking up. The scheme involved the creation of a cell around the coffin to be removed. Once created, the cell and the coffin within it would be moved in a block. This involved excavation first to the base of the particular coffin. A pump, which incidentally the cemetery did apparently have despite the efforts with pails mentioned above, would be used for the water. A pit would be dug in the area of the path running at right angles to the lair (Pro. 30 Fig. 1). A removal machine would then be installed. This machine would consist of three or more troughs, being square "U" shaped steel fabrications, the first of which would have a leading or driving shoe capable of cutting through soil (Pro. 30 Fig. 03). The leading trough would be aligned with the coffin to be removed and slid under and along the side of it by means of jacks also located in the pit. When the first trough was partially driven in, the second trough would be aligned with, and welded to, the first. The combined troughs would then be pushed further in using the jacks. The same would be done with a third and possible fourth trough until the entire coffin (with the surrounding soil) was encased at its base and sides. Given the soil conditions, which were favourable to the task, Mr. Apted thought it might take an hour or so to drive the trough a distance of two feet. The alignment would be monitored during this painstaking operation so as to avoid damage even to the coffin. He thought some damage to the coffins, in the form of scraping, was possible if care were not taken when pushing in the driving shoe but in that regard he did not know that, according to both Mr. Douglas and Mr. Clarkson, there was probably one or two inches of backfilled soil depth between coffins. As Mr. Apted considered that he could work to a tolerance of only 1 millimetre, there ought not to be a significant problem. Once the cell had been created, it would be lifted using "A" frames and lifting shackles (See section A-A, Pro. 30 Fig 03) attached to welded lugs on the trough sections. The total weight would be around three quarters of a metric ton. This was not a difficult load to lift and the suction effect of the soil was minor in comparison with the weight. A rectangular frame would be used to avoid any bending of the sides of the cell. The cell would then be placed on a trolley and taken to wherever the coffin and remains were to be re-interred. Although he had not been asked specifically to address re-interment, this could be done either by interring the whole cell or removing its sides leaving only the base.

There was considerable cross-examination of Mr. Apted in relation to the practicability of his scheme and to a wide number of possible or theoretical problems which might arise during its implementation. These included whether he had properly considered a number of factors concerned with the construction of the coffins, their handles or other accoutrements, the degree to which space was restricted by what might be in the adjacent lairs, the need for sheeting and strutting and the problems of aligning the trough having regard to possible angles that the coffins might be resting at. None of this detailed scrutiny of his plan appeared to undermine its efficacy. Ultimately, Mr. Apted said that he would be happy to carry out this task himself and had identified suitable specialist contractors to assist him in so doing. The removal was relatively straightforward in engineering terms. The cost he had initially estimated at £7,000 but it could, if further precautions required to be introduced, cost as much as £12,000.

It appeared from his report and evidence that Mr. Apted had taken considerable care to examine the problem set and to devise a positive solution to the perceived difficulties it threw up. He had a firm grasp of his subject and gave evidence upon it in a measured and balanced manner. I consider his evidence to be reliable and convincing, especially in relation to the manner in which not only the remains but the coffins surrounding them could be extracted from the lair without damage or disruption to either, other than perhaps a possible scratch to a coffin surface. In relation to measurements and angles, Mr. Apted had been careful to note these during the inspection in the trial pit. Given his qualifications and skill as an engineer, I am persuaded that any conflict between his evidence and Mr McCallum's on this topic should be resolved by accepting that of Mr. Apted.

(ii) Duncan McCallum

In relation to the question of disinterment, Duncan McCallum gave evidence for the first respondent. Mr. McCallum was employed as Northern Regional Manager for a private crematorium enterprise. His formal qualifications included the Institute of Burial and Cremation Administration's Diploma and he was a Fellow of that Institute. His background had been in the horticulture but he had transferred to cremetoria in about 1982 as they fell within the remit of the parks and recreation department he was already in with Kyle and Carrick District Council. He was Cemeteries and Crematorium manager for the Council from 1982 to 1995. Over these years he had been involved in eight or nine disinterments, mostly at the request of a deceased's family.

Mr. McCallum gave evidence on a number of different areas, including the decomposition of bodies. On the latter he expressed the view that the body in the Upper coffin would not yet have fully decomposed, in the sense of being reduced to a skeleton. He thought the body in the Intermediate coffin might have been reduced to that state. In relation to their disinterment, he explained that he would first wish to establish the existence of the coffins in adjacent lairs in order to determine the amount of room to manoeuvre. He would then wish to excavate around and to a depth of six inches below the relevant coffin to establish its horizontal plain. In order to disinter the Upper coffin, he would use a method whereby synthetic webbing and ropes were used to cut the suction underneath the coffin before plastic sheeting was inserted to achieve the lift. He thought that the process would require monitoring but did not see a problem in getting the sheet underneath. The sheet would then be folded and, with sufficient staff, the coffin lifted sufficiently to enable boarding to be placed underneath to create stability to the base. Webbing would then be used for a manual or mechanical lift. Once the Upper coffin were removed then the bigger problem posed by the Intermediate coffin could be tackled. It had been lying in water for many years and, given its likely construction, might easily disintegrate. He thought it would be extremely difficult to excavate below this coffin because of the Lower coffin and other potential coffins in the lair or those adjacent to it. The working space would be very restricted. Because the coffin was likely to disintegrate, it would be more difficult to insert the sheeting. It would have to be done "piece by piece". It would be laborious but he could see no other method of achieving the desired end. He did not say it was impractical to disinter even the Intermediate coffin although asked specifically about practicability. He simply thought it would be very difficult to remove the coffin intact.

Mr. McCallum was asked about Mr. Apted's methodology. He thought he was sufficiently experienced to make comments upon it. He expressed a number of concerns about damage being caused to the coffins by the use of the driving shoe and the lack of knowledge about what angle the coffins were lying at. In short, he had reservations but he did not say that the method of disinterring would not work and he did think that the transportation of the cell thereafter would not pose a problem. It is worth observing that both Mr. Clarkson and Mr. McCafferty spoke to being involved in disinterments using similar methodology to that spoken to by Mr. McCallum and none spoke to any failures in achieving the object on these occasions.

Finally, on the question of practicability, I should record that Mr. Forbes spoke to obtaining, from the computerised version of the manuscript records, details of what remains were thought to lie in the adjacent graves (Pro 7/41). In Lair 905 a teenager had been interred in 1941 and both an adult and an infant in 1930. The burials were recorded at depths of 5, 6 and 7 feet. This lair was probed and the top of a coffin was located at 4 feet (i.e. reasonably consistent with a body in a lair of 5 feet). The records only revealed Peter Butler junior buried in Lair 906. In Lair 907 there was one burial of an adult in 1930 at a depth of 7 feet. This was probed to a depth of about 6 feet and no coffin was located (i.e. again consistent, possibly, with a coffin at a depth of 7 feet or lower). In Lair 905, two adults had been buried in 1945 at depths of 6 and 7 feet.

(iii) Conclusion

I have no doubt that disinterment of the Upper and Lower coffins is a practicable, indeed a relatively straightforward process, and that it can be achieved without disruption of or damage to the remains of the dead or even their coffins. As noted above, I found Mr. Apted's evidence careful and compelling. He was a skilled engineer who had developed a bespoke solution to the problem set for him. This problem was perhaps a more difficult one than required to be set but nevertheless he addressed all the difficulties and came up with a practical solution capable of extracting the coffins entirely intact and transporting them without damage to such other location as might be specified. I am entirely satisfied that his method would work.

Mr. MacCallum spoke to the more traditional method of disinterring remains and pointed out the difficulties involved. I am also satisfied that, properly managed and monitored, his method too would work in extracting the coffins intact and without disruption of or damage to the coffins or remains.

In relation to both proposed methods, a number of potential obstacles or difficulties were postulated but there was simply no evidence upon which to base any finding of impracticability. On the contrary, I am satisfied that the opposite is correct.

5. Legal Submissions

(i) Petitioner

The petitioner argued that the coffins and remains, which he sought removed, were res nullius (Hill Watson : "Burial and Cremation" Green's Encyclopaedia (2 Gordon : Criminal Law (2^nd ed.) para. 14.44 under reference to Dewar v HM Advocate 1945 JC 5). No person had a right to object to them being removed solely on the ground of relationship with the deceased, whose remains they were. Once a body was interred, protection of the remains was generally a matter for the criminal law only. It was no valid objection to disinterment under the civil law that some disturbance or damage would be caused to the coffins or remains. Any such disturbance had to yield to the right of the petitioner to have remains, which had been wrongly interred, removed. If such damage occurred in the removal then, if anything, the relatives of the deceased should look to the second respondents as the persons who carried out the wrongful interments. In addition, in this case, no-one had any particular right based upon any contract or principle of law to prevent the disinterment. The ownership of the cemetery was vested in the second respondents and they, and their predecessors, had the right in the ground subject to the ability to convey to another a right of sepulchre. This right, which was not strictly one of property, entitled the person acquiring it to bury remains in the ground (Duncan : Parochial Ecclesiastical Law (Johnston ed.) pp 170 217). No doubt remains are sacred but they could be removed if they had been buried in a place where no right of burial existed. In this case the Butler family had no right to bury remains in Lair 906. That right rested exclusively with the petitioner who was entitled to enforce it by seeking authorisation for disinterment. The ordinary law of contract applied (Hill Watson (supra) at para 1267). The lair holder did not have an exclusive right of property but one which enabled him to prevent any encroachment on his right (Paterson Ptnr 2000 SC 574, OH, Lord Penrose at para. 8). The lair owner had the right to have the heritable proprietor of the ground remove remains buried there. That issue was simply one of property rights (Ouchterlony v Officers of State (1823) 2 S 437 (new ed. 390); (1825) 2 W & S 533). There ought to be no conditions attached to the order (Ouchterlony (supra)). Even if distress of relatives of the deceased were to be taken into account, such distress would be cancelled out by the distress of the petitioner and his wife being unable to fulfil Mrs. Mitchell's wish that they should all be buried together. In relation to interference with neighbouring lairs, the lair holders there were simply entitled to protect their rights of burial and these would not be affected by the proposed disinterments.

The petitioner's exclusive right of burial had been "violated" and the remains buried in pursuance of that right should be disinterred. The prayer of the petition should be granted. Although the petitioner had proceeded by way of petition, no discretion rested with the Court in relation to the granting of the order.

(ii) First Respondent

The first respondent moved for her third and fourth pleas-in-law to be sustained and for the prayer of the petition to be refused. It was argued that the petitioner had not proved his title but I have already dealt with that matter above as one of fact. It was maintained that notwithstanding the existence of the petitioner's certificate, the first respondent's duplicate certificate was equally valid.

The petitioner was seeking to enforce a contractual right. Certain sensitivities applied in relation to such rights (Paterson Ptnr (supra) Lord Penrose at para 14). It did not include an unconditional right to disinter. The Court was entitled to take into account all the circumstances in deciding what remedies might be granted. Potential damage to the coffins in Lair 906 was a relevant circumstance as were potential consequences to third parties (Steel v Kirk Session of St. Cuthbert's Parish (1891) 18 R 911, Lord President (Inglis) at 917-919, Lord Adam at 919). Although the lair holder might have enforced his contract by interdict, preventing a burial, once that burial had taken place, whether the remedy were to be granted was a matter for the Court's discretion depending upon all the circumstances. Third party rights could not be disregarded. In this case, since Mr. Apted could not guarantee the "success" of his method, the remedy, which ought to be proportionate to the right infringed, should only be one of damages.

Originally, counsel for the second respondent said that, in the event that I granted the prayer, he did not seek an order that the remains should be re-interred according to the wishes of the Butler family but, after some time for reflection, moved that such an order should be granted.

(iii) The Second Respondents

The second respondents moved that the prayer of the petition should be refused. If I were inclined to grant it, the case should be put out By-Order since a number of issues remained unresolved, notably the method to be used, the costs and the place of re-interment. Any order should make it clear just what was to be done. It was accepted that buried remains were res nullius but not that relatives had no title to protect them (Gordon (supra) para 42-01). Buried human remains are sacred and cannot be disturbed except in certain specified circumstances (Brand : "Burial and Cremation", Stair Encyclopaedia Vol 3 para 534). One of these exceptions was where the Court granted authority to disinter. Another exception mentioned by Brand (supra), where a burial had been effected in ground in which there was no right to burial, did not apply here as it did in Ouchterlony (supra) because here there was a right of burial in the cemetery. In deciding whether or not to grant authority, the Court had a wide discretion (Paterson Ptnr (supra) Lord Penrose at para. 25; Nicholls v Angus Council 1997 SCLR 941 Sh Ct) and the petitioner had recognised that by proceeding by petition rather than action.

The second respondents maintained that an important element in the decision whether to permit disinterment was whether it had been proved that Mrs. Mitchell had been buried in Lair 906, since if she was not then the purpose of pursuing the matter by the petitioner as expressed by his wife would have gone. However, I resolved this matter against the second respondents as outlined above. The second respondents also maintained that the onus was upon the petitioner to demonstrate that removal of the coffins was practicable. Practicality was another important element in the exercise of discretion. Counsel re-iterated the points of concern put to Mr. Apted in cross-examination and stressed that, as Mr. Apted had accepted, there was only one chance to "get it right". Under reference to the various points, the Apted method was described as "a voyage of discovery". However, on the facts as set out above, I resolved this area of fact in favour of practicability.

In asking that the discretion should be exercised in their favour, the second respondents also founded upon : (i) the sensitive nature of the proposed operation; (ii) the unchallenged evidence of Mr. McCallum that the body of Peter Butler junior was not fully decomposed; (iii) the limited number of years remaining in respect of the petitioner's exclusive right of burial; and (iv) the absence of any actual evidence of distress from the petitioner and his family should the prayer of the petition be refused; (v) the lack of proof that Mrs. Mitchell is buried in the lair; and (v) the difficulties with which the operation to disinter was fraught. The dead should be allowed to rest in peace.

6. Decision

The broad principles of the relevant law affecting this case are best set out in summary by Lawrence Hill Watson, Advocate, in his introduction to the subject of "Burial and Cremation" in Green's Encyclopaedia (2^nd ed. Vol. 2 Para. 1265) and I cannot improve upon his succinct statement of the position. After a body has been interred:

"the remains are sacred wherever they are interred; and so a grave is protected against disturbance, at least until "the process of disintegration is complete" (Earl of Mansfield v Wright 1824 Sh App 104). There are two exceptions to this rule : (1) If those having the management of a public burial-ground are compelled to disturb the grave from considerations of necessity or high expediency (Steel v Kirk-Session of St. Cuthbert's Parish (1891) 18 R 911); or (2) if the burial was in ground in which there was no right of burial (Officers of State v Ouchterlony (1823) 2 S 437; affd 1825 1 W & S 533); in these cases disinterment appears to be permissible, on condition that the remains be reinterred with all decency and respect. In other cases authority to disinter and reinter may, on cause shown, be obtained from the Court of Session or (more usually) from the sheriff."

There are therefore two situations in which a person will normally be entitled to insist upon disinterment of remains as a matter of legal right whether or not disturbance may result. One of these is where the remains have been buried where there was no entitlement to inter. The most obvious example of that is where a person buries remains on someone else's land without permission (cf Earl of Mansfield v Wright (supra) where the bodies had been buried with such permission). In that type of situation, I do not consider that the Court's function in deciding whether to order the disinterment is simply a discretionary one. The proprietor is, in that type of case, entitled to enforce his right of property (Officers of State v Ouchterlony (supra)). Where a proprietor has conveyed a right of exclusive burial to a third party then, equally, I would expect that third party to be able to enforce his right against the proprietor, in that case a contractual right. I would expect this type of case to be initiated by ordinary action raised by the holder of the right against those who are alleged to have infringed it. The desirability of obtaining a Court decree is primarily concerned with the need to avoid the consequences of the criminal law, which might otherwise come into play even though ultimately the potential accused may fall to be acquitted on the basis that he was simply enforcing his rights brevi manu. I would also expect any near relatives of the deceased, whose remains are sought to be removed, at least to have a title to object to that removal even although, ultimately, their objection may turn out to be invalid (see e.g. the title of the respondent in Earl of Mansfield v Wright (supra)). In any event, I would still not regard the decision of the court as involving the exercise of a "discretion" except in the sense that no doubt ultimately the court may have a general residual discretion to refuse the remedy of specific implement at least in exceptional circumstances.

Where there is no right to be enforced but a person wishes to disinter remains for practical or other reasons then he may apply to the Court for authority to do so. The Court may grant that authority on cause shown. Because of the manner in which the general law regards remains, such cause would have to be something more than a matter of convenience (see e.g. the approach of the Sheriff in Nicholls v Angus Council 1997 SCLR 941 at 945 under reference to the various examples of applications under this head in Mr. Brand's article (supra) at 536). In the Court of Session, I would expect this type of application to proceed by way of petition on the basis that what is being sought is not an enforcement of a right but authority to do something which the petitioner does not otherwise have authority to do. In that situation, the court would be exercising a discretion whether or not to permit the disinterment having regard to all the circumstances.

The present proceedings were raised by petition. Although I am not convinced that this was the proper course, no objection is taken on that ground. That being so, I do not consider that the choice of procedure has a material effect upon the substantive law. In particular, that choice cannot transform a case involving an ordinary remedy based upon legal right into a purely discretionary one.

In this case, as I have found, the petitioner was issued with a lair certificate by the second respondents' predecessors on 14 April 1961. That lair certificate evidenced a contract entered into by the petitioner with these predecessors whereby they, as heritable proprietors of the cemetery ground, afforded him the "exclusive right of burial" in Lair 906 for a period of sixty years. It follows from that contract that their successors in title to the ground, including Motherwell District Council and (the second respondents' accepted) the second respondents, could not validly enter into a contract with another person within that sixty year period and purport to grant that other person a right of burial in that Lair. If the "Duplicate" lair certificate was intended to evidence a further contract with Margaret Butler, later assigned by a "Transfer" certificate to the first respondent (and I heard no proof about such a contract or about the circumstances of issue of either Butler certificate) then any such contract could not supersede that entered into with the petitioner. In short, I am satisfied that the petitioner has a legally enforceable exclusive contractual right of burial in Lair 906.

As a matter of contract, the petitioner is entitled to vindicate his right of exclusive burial (Hill Watson (supra) at para 1267). In breach of that contract and, in particular, the petitioner's right, the second respondents' predecessors interred two remains in Lair 906. These were of Margaret Dunn or Black, in the Intermediate coffin, and Peter Butler junior, in the Upper coffin. I am of the view that the petitioner is entitled in these circumstances to enforce his contractual right by insisting that the second respondents remedy their breach by disinterring these remains. In referring to certain sensitivities attaching to lair contracts and to the discretion afforded to the court in some, if not most, applications to disinter, I do not understand Lord Penrose (Paterson Ptnr (supra) paras 14 and 25) to be suggesting that in all cases the Court is exercising a purely discretion jurisdiction.

In certain contractual and perhaps other situations, the court may refrain from ordering specific implement if, as noted above, there are exceptional circumstances justifying the withholding of the remedy. One situation where the court will not normally order implement is where it is impossible, and by impossible would no doubt be included "impracticable". Where the implement sought is out of all proportion, in terms of effort or cost, with the matter sought to be remedied, that may also warrant a court refusing to grant implement. In any of these cases, where the person seeking the remedy has, prima facie, a legal right to it then, at the very least, the onus of demonstrating such impossibility, impracticality or disproportionality must rest upon the person resisting the remedy. I do not think any of these matters has been established in this case. On the contrary, the petitioner has proved that the remedy he seeks is possible, practicable and proportionate. I should add that even if I had found that some disturbance to the remains (other than their removal) was probable, I do not consider that this would have been a good defence to the petitioner's case for disinterment.

Even if I am in error in considering that the petitioner is entitled to insist in the removal of the remains and the matter is purely one of exercising a discretion to order disinterment of remains, then I would exercise that discretion in favour of the petitioner. In seeking to balance the various elements involved, the starting point must be that the remains in the Upper and Intermediate coffins should be regarded as sacred and ought not be disturbed unless some good reason is proffered. In this case, there is the fact not only that the remains have been buried but a gravestone has been put in place commemorating the deceased Margaret Dunn or Black and Peter Butler junior at Lair 906, albeit that it also commemorates Peter Butler senior, who is not buried there. The removal of the remains may well cause upset to the friends and relations of the deceased Mrs. Black and Mr. Butler, although, in the absence of any evidence, I cannot gauge the degree of upset or the number of persons involved. On the other hand I do not regard the operation of removing the remains as a difficult one (see above). The petitioner and, in reality, his wife obtained Lair 906 as a final resting place for Mrs. Mitchell and Mrs. Mitchell had expressed her wish, which the petitioner and his wife want to comply with, that they be buried beside her. Mrs. Mitchell is buried in Lair 906 and I am of the view that her wish and that of the petitioner and his wife should be honoured in the absence of any practical obstacle to that happening. The rights in respect of the lair were bought for that purpose and that purpose ought to be fulfilled. In contrast, the Butler family bought the rights in lair 609, the gravestone now on Lair 906 even bears that number, and it seems right that the members of the Butler family should be laid to rest there. Accordingly, I find that in relation to the use of any discretion, it ought to be exercised in favour of the petitioner.

I was asked to put the case out By-Order so that certain "unresolved" matters might be discussed. However, I do not think that such a course is warranted. This case involved a four day proof and if there were any unresolved matters then they should have been resolved over that period and, in particular, during submissions. But I do not think there are any such matters. In relation to the order of the Court, that is simply that the remains be disinterred. I do not think that I am in a position to add any conditions to that simple and definite order. In particular, I do not consider it necessary or appropriate for the Court to specify the manner in which the remains should be disinterred. I am quite satisfied that there are practical methods of disinterring the remains without disruption of or damage to them. Mr. McCallum spoke to the traditional method and Mr. Apted to a bespoke system, either of which could be used. During the course of that use, decisions may have to be made on the ground in relation to any necessary modifications to the initial planned system to take into account any particular problems that might arise. The second respondents can elect to use either of these methods or indeed a different one upon which their officials might advise. That is a matter for them. If they had had a particular system in mind, which they had thought ought to have been specified in an order of the Court, then it would have been open to them to have led evidence about it. However, the approach to disinterment taken by the second respondents throughout the proof was, as far as I could tell, an entirely negative one. Despite the fact that the evidence pointed towards this whole problem having been caused by officials or staff of their predecessor authority, I was unable to detect any steps taken by that authority or the second respondents to undo the problem created. On the contrary, the problem having been brought specifically to the attention of these officials or staff, it seems to have been compounded by the issue of the "Duplicate" certificate and what must have been the permission to inter Peter Butler junior in Lair 906 contrary to the rights indicated by the lair records. I can but express surprise at that and the absence of any explanation in evidence for it from a knowledgeable, responsible official.

So far as an order for re-interment "according to the wishes of the Butler family" is concerned, I do not consider that I can competently or reasonably pronounce such an order because it is simply too vague. I was not even told what the wishes of the Butler family were far less who the members of the Butler family are that might be involved in formulating the collective wish. Once again, I do not consider that the Court should pronounce such an order without having heard any evidence on that matter. Since the Butler family hold a right of burial in Lair 609, and, from both the number on the headstone at 906 and the undertakers' notes relative to Mrs Dunn or Black, seemed to have expected the burial of their deceased relatives to have taken place at their own lair, I would be surprised if the Butler family wished the remains to be interred anywhere else but Lair 609. But that is a matter which the respondents ought to resolve themselves. No doubt the second respondents will have in mind the views of the court relative to the precautions required in re-interment expressed by the Second Division in Officers of State v Ouchterlony (supra) at 391) and the need to re-inter with decency and respect but I do consider that a condition relative to re-interment can be imposed upon the evidence heard and submissions made.

In relation to the costs of disinterment, as the order is against the second respondents, I do not think there is any need to specify in it that they should pay the costs. I would have thought that, since the second respondents' predecessor appear to have caused this whole difficulty, there should be no question but that the second respondents should pay for it to be put right.

Finally, although I was not addressed on the time which the second respondents should be allowed to carry out the disinterment, I will allow three months for that.

I will accordingly order North Lanarkshire Council to disinter the remains in the coffins in Lair 906 termed "Upper" and "Intermediate" in the report by Richard Apted dated 19 November 2001 (No. 30 of process) and that within a period of three months. I will sanction the employment of both Mr. Apted and Mr. MacCallum as expert witnesses.