The Better View? Johnston v R & J Leather Ltd

When discussing disputed points relating to the law governing corporeal moveables in Scotland, the late David Carey Miller frequently weighed up opposing arguments and interpretations based on the authorities and a range of policy considerations, and ultimately came to what he termed “the better view”.1 For example, the “better view” relating to reform of the law of moveable securities was “that while the system of property may need to adapt to accommodate the needs of commerce, for it to retain its structural integrity and coherence any development should come from within and show sufficient respect for, and consideration of, the traditions of the system”.2 One thing Carey Miller consistently resisted was the idea that what he labelled as “policy” or “equitable” considerations should undermine the structural integrity and coherence of the law of corporeal moveables.3

The present analysis piece considers the recent case of Johnston v R&J Leather (Scotland) Ltd.4 While the decision can be praised for a number of reasons,5 it will be suggested that it is difficult to take what Carey Miller might have termed the “better view” of the decision – a view that allows it to be read consistently with the underlying principles and structure of the law.