In the matter of the Baronetcy of Pringle of Stichill UKPC 16

Analysis

This was a referral to the Privy Council under s4 of the Judicial Committee Act 1833, under which the Queen can refer matters to the Judicial Committee of the Privy Council for advice. On this reference, the Privy Council was asked to advise as to (i) who was entitled to be entered on the Official Roll of the Baronetage as the Baronet of Pringle of Stichill; and (ii) whether DNA evidence resulting from the obtaining of a DNA sample from the tenth baronet (Sir Steuart Robert Pringle) in late 2009 or early 2010 should be admitted in order to determine the first question.

In 1683, Charles II granted the Baronetcy of Stichill to Robert Pringle and the male heirs of his body. The eight baronet (1871-1919) married Florence Vaughan on 16 October 1902. Seven months later on 13 May 1903 she gave birth to a son, Norman Hamilton Pringle. She subsequently gave birth to three further children, the first born of whom was Ronald Steuart Pringle (b 26 April 1905). Ronald Pringle was the father of the claimant in this matter, Norman Murray Archibald MacGregor Pringle (known as Murray). Norman Hamilton Pringle had been enrolled without opposition as the ninth baronet. Following his death in 1961, his son Sir Steuart Robert Pringle was enrolled as the tenth baronet. Sir Steuart Pringle died in 2013. Sir Steuart Pringle’s son Simon Robert Pringle (Simon) was the other claimant in this matter.

Murray asserted that Norman Hamilton Pringle was not the son of the eighth baronet. Accordingly, his father Ronald Pringle was the male heir of the first baronet. Following the death of Ronald Pringle in 1968, Murray became the male heir of the first baronet. Accordingly Murray challenged Simon’s entitlement to be enrolled as the eleventh baronet.

Murray obtained a DNA sample from Sir Steuart Pringle, who had provided it to Murray as part of ‘the Pringle Surname Project’ established by Murray in 2009. This sought to determine the chieftainship of the clan Pringle. The DNA sample was analysed by Sorenson Genomics. Their results were examined by Professor Watson who expressed the opinion that Sir Steuart Pringle was not related through any male line to Murray. Dr Tim Clayton, a consultant forensic scientist, advised on the accuracy of the work of Sorenson Genomics. Eight of the people tested by Sorenson Genomics were retested by another organisation, Genetic Testing Laboratories. There was also an expert report from Dr Susan Pope explaining the test results. She said that Sir Steuart and his half-brother shared the same Y-chromosome profile and were descended from one paternal line. Murray and the male descendants of the second and third sons of the eight baronet who were tested had a different Y-chromosome profile. She concluded that the family tree and Y-chromosome tests provided:

‘very strong support for the view that Sir Norman Robert Pringle [the eighth baronet] is the grandfather of Norman Murray Pringle [Murray] […] but is not the grandfather of Steuart Robert Pringle [Sir Steuart Pringle].’

Murray wrote to Simon explaining the results, and indicating that he intended to ‘restore the baronetcy to its rightful lineage’, and that he was entering a caveat on the Official Roll of the Baronetage. Murray pursued an application in the Family Division of the High Court for a declaration of parentage under s55A of the Family Law Act 1986, in which he sought to have the birth certificate of the ninth baronet corrected. The proceedings were dismissed by consent on 23 April 2013, shortly after the death of Sir Steuart Pringle. Thereafter, both Simon and Murray registered their claims to be entitled to succeed to the baronetcy of Pringle of Stichill with the Registrar of the Peerage and Baronetage.

Rather than disputing the results of the DNA test and expert analysis thereof, Simon’s counsel asserted that the evidence should not be admitted on four grounds:

1. (1) Under the Scots law of prescription, Murray’s claim has been extinguished through the passage of time and accordingly he has no legal interest to pursue.
2. (2) Murray’s claim was barred by the defence of ‘mora, taciturnity and acquiescence’. This was on the grounds that both Murray’s father and Murray had failed to mount a challenge sooner. Murray had had a right to challenge the succession since 1968.
3. (3) Murray had breached an obligation of confidentiality or misused private information in his use of Sir Steuart Pringle’s DNA to advance his claim to the baronetcy.
4. (4) In so using the DNA Murray had acted in breach of s4(4) of the Data Protection Act 1998.

Simon also relied on the presumption that (as a child born during the eighth baronet’s marriage), the ninth baronet was the legitimate son of the eight baronet.

Held (Lord Hodge giving the advice of the board):

1. 1. 1) The governing law of the question the board was determining was Scots law, though there was considerable similarity of approach with English law. The board proceeded on the basis that the relevant domicile was Scotland.
   2. 2) A title of honour vests ‘iure sanguinis‘, by right of blood, in the heir specified in the grant. The heir needs to take no step to acquire the title. The true question was who was the male heir of the first baronet of Stichill. When answering that question, the court looks to the facts available to it at the time the succession opened up on the death of a rightful baronet. However various events (such as the subsequent reappearance of a missing heir long believed to be dead) would supplant the person otherwise identified as the heir.
   3. 3) Scots common law has a strong presumption of paternity to protect the legitimacy of a child who is born in the marriage of their apparent parents. The position was now governed by the Law Reform (Parent and Child) (Scotland) Act 1986. This provides that a man is presumed to be the father of a child (a) if he was married to the mother at any time beginning with the conception of the child and ending with the birth of the child or (b) if both he and the mother of the child have acknowledged that he is the father and he has been registered as such in a register of births in the United Kingdom (s5(1)(a)). The presumption of paternity may be rebutted by proof on a balance of probabilities (s5(4)). In civil proceedings, a party may be requested to provide a sample of blood or other bodily fluid, or body tissue, for testing. The court may draw an appropriate inference if such a request is refused (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, s70). Comments in older cases about a heightened burden following a long delay must be read in the context of the evidence available to the courts at the time. Modern blood tests and DNA evidence have made it possible to establish or undermine claims of paternity to a high degree of probability and can readily rebut evidential presumptions.
   4. 4) (Obiter) In English law, there is a presumption that a child born during a marriage is legitimate. English common law has no general bar on the receipt of evidence of paternity, such as DNA evidence, as a result of a delay in pursuit of a claim.
   5. 5) The right in question did not prescribe. Under the pre-1973 law, the Scottish law of prescription did not protect the titles of the ninth and tenth baronets. The Prescription and Limitation (Scotland) Act 1973 lists in its third schedule the rights and obligations which are imprescriptible. This schedule includes ‘any right to be served as heir to an ancestor’. This right was logically consequential to the underlying right to succeed to the title of honour, the ‘ius sanguinis‘. It followed that the underlying right must itself survive the passage of time. Accordingly, this provision in para(h) of Sch 3 to the 1973 Act meant that, consistently with the prior law, a ius sanguinis does not prescribe.
   6. 6) The defence of mora, taciturnity and acquiescence offered no defence to Murray’s claim. The defence involved three elements, requiring; (1) excessive or unreasonable delay in asserting a known right; (2) a material alteration of circumstances; (3) to the detriment of the other party. It was a species of personal bar, so the inaction of Murray’s father was not relevant. Murray’s unchallenged position was that he did not know of the illegitimacy of the ninth baronet and was surprised when he received the DNA results. On that basis he did not know that he had a claim until he received those results. That excluded the plea. Moreover, as a species of personal bar, the plea operated as a shield and not as a sword. Even if it succeeded as a defence to Murray’s claim, it would not of itself establish Simon’s claim.
   7. 7) There was no evidence that Murray had obtained Sir Steuart Pringle’s DNA on a false premise, and the defence based on breach of confidence or private information failed. The claim to be the clan chief depended on Sir Steuart Pringle’s status as the senior member of the branch of the Pringle family who were entitled to claim the baronetcy of Pringle of Stichill. He had consented to the use of his DNA to ascertain his entitlement to be clan chief. He had been aware that he was contributing to a genealogical record. He must be taken to have been aware that if his DNA were to exclude him from a claim to be the clan chief, it might also form the basis of a challenge to his entitlement to the baronetcy.
   8. 8) It was not necessary to decide whether Murray was a data controller for the purposes of the Data Protection Act 1998. On the assumption that he was, Simon had an arguable case that Murray breached his duty under s4 of the Act by processing the data as he did. However, it was not necessary to express a firmer view because even if he had acted in breach of a relevant statutory duty, this would not be sufficient to render the DNA evidence inadmissible. Scots law looked at the nature of the evidence, the purpose for which it would be used in evidence, and the manner in which it had been obtained. This involved taking into account whether the introduction of evidence was fair to the party from whom it had been illegally obtained and also whether the admission of evidence would throw light on disputed facts and enable justice to be done. On the facts of the present case, there was no question of dishonesty or deception. Even if there had been breaches of statutory duty, it would be a disproportionate response to exclude from consideration evidence of such probative quality.
   9. 9) (Obiter) a similar result would follow under English law. Improperly obtained evidence is admissible, though the court has a discretion to refuse to admit such evidence.
   10. 10) Accordingly, there was no legal ground for excluding the DNA evidence. The evidential presumption of paternity was capable of being rebutted by evidence which shows on the balance of probabilities that the eighth baronet was not Norman Hamilton Pringle’s father. The DNA evidence demonstrated to a high degree of probability that Norman Hamilton Pringle was not the son of the eighth baronet. This led to the conclusions that:
   11. a) Simon was not the great-grandson of the eighth baronet and was not the heir male of the first baronet.

b) Murray was the grandson of the eighth baronet and was, as the heir male of the first baronet, entitled to succeed to the baronetcy of Pringle of Stichill.

LORD HODGE: [1] In this reference under s4 of the Judicial Committee Act 1833, Her Majesty requires the board to advise as to (i) who is now entitled to be entered on the Official Roll of the Baronetage as the Baronet of Pringle of Stichill and (ii) whether the evidence resulting from the obtaining of …

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