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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson & Ors v Lands Tribunal For Scotland Decision [1999] ScotCS 137 (8 June 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/137.html
Cite as: [1999] ScotCS 137, 1999 SCLR 872
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord McCluskey Lord Prosser Lord Milligan
|
0111/17/16a/1998
OPINION OF THE COURT
delivered by LORD McCLUSKEY
in
APPEAL
by
ANDREW WILSON & OTHERS Appellants;
against
THE DECISION OF LANDS TRIBUNAL FOR SCOTLAND
by
R.A. EDWARDS, W.S., to refuse allowance of an Appeal under section 25 of the Land Registration (Scotland) Act 1979 _______ |
Act: Party
Alt: Crawford, R. Henderson for 1st Respondent; McIlvride, Solicitor, Bennett & Robertson for 2nd Respondents; Connal, Solicitor, McGrigor Donald for 3rd Respondents
8 June 1999
The appellants are British subjects, members of the community of Inverclyde, and registered members of the electorate. As such, they seek to vindicate what they assert are rights belonging to the citizens of Greenock, being rights formally vested in trustees to hold inalienably for the citizens. The relevant trust, they maintain, was created by a Feu Contract in 1772, when funds obtained from the citizens by local taxation were used to purchase what was to become harbour land. Since 1772, the local community has, it is said, provided further funds through local taxation for harbour improvements on the trust lands and for additional acquisitions. It is averred that that trust endures, "remains active", down to the present time. The appellants aver that they are "beneficiaries and heirs to the rights both Corporeal and Incorporeal heriditaments of the Community of Inverclyde". These rights are said to include "inalienable rights of navigation and rights on the foreshore". We were informed at the bar that the appellants have been interdicted from attempting to exercise such rights over what is averred to be the trust property. The interdict was obtained some six or more years ago at the instance of those who are registered in the appropriate title sheets in the Land Register of Scotland as the proprietors of the heritable subjects specified in the title sheets REN 42086 and REN 43834. We were told that in opposing the grant of interdict the present appellants submitted that those registered in the Lands Register as proprietors of the subjects were not in fact or in law the true owners; they had no valid title to the subjects, and should not have been registered as proprietors; accordingly, it was argued, they had no title to obtain the interdict sought. However, the court in the interdict proceedings granted interdict, we were told, on the basis that until the Lands Register was altered by the statutory process of rectification, it fell to be treated as conclusive evidence of the ownership of those registered as proprietors therein.
In these circumstances the appellants invoked section 9 of the Land Registration (Scotland) Act 1979 (the 1979 Act) and called upon the Keeper to rectify what they conceive to be inaccuracies in the register pertaining to the subjects described in the property sections of the title sheets and respective Land Certificates REN 42806 and REN 43834. They did so by lodging with the Keeper an application dated 15 May 1997 in the form prescribed by Rule 20 of the Land Registration (Scotland) Rules 1980. The Keeper, by letter of 27 May 1997, refused the application to rectify the register. The appellants appealed against that refusal to the Lands Tribunal for Scotland under the provisions of section 25 of the 1979 Act. A decision dismissing the appeal was issued on 29 July 1998 by R.A. Edwards, W.S., sitting as the Tribunal. The appellants have now appealed to the Court of Session. The respondents in this appeal are the Keeper; Scottish Enterprise (statutory successors to the Scottish Development Agency); and The Scottish Metropolitan Property plc (whose title, or claim to title, to part of the subjects derives from that of the SDA).
A copy of the application of 15 May 1997 by the appellants to the Keeper is produced as No. 6/22 in the appellants' list of productions. It contains inter alia the following:
"Title No
REN 42086 & 43834
Short description of subjects |
GREENOCK WATERFRONT, CUSTOMHOUSE QUAY AND EAST INDIA HARBOUR |
We apply for rectification of the Title Sheet for the above Title No. as follows:
WE WISH TO STATE THAT THE KEEPER WAS MISINFORMED/MISLED BY THE INFORMATION SUBMITTED ON FORM 1 AND FORM 4, FOR FIRST REGISTRATION FOR THE ABOVE SUBJECTS.
THE FORM 4 WHICH IS ENCLOSED WITH THIS APPLICATION SHOWS A TRUE RECORD OF PROGRESS OF TITLES, CONTAINING RIGHTS AND BURDENS AFFECTING THESE SUBJECTS SINCE FIRST DISPONED FROM THE SUPERIOR AND OTHERS, ALL DULY RECORDED IN SASINE BETWEEN 1772 AND 1842.
To support this application, We enclose the documents listed on the Inventory (Form 4)".
There was appended an inventory of writs (also in 6/22) which included the Feu Contract dated 6 July 1772 between John Shaw Stewart and Messrs James Gammell and others, then Magistrates, Baillies, Treasurer and Councillors of the Town of Greenock as Managers and Trustees of the Town's funds. By that Feu Contract John Shaw Stewart disponed the subjects specified therein "to the said Magistrates, Treasurer and Town Council of Greenock, and their successors in office, for the use and behoof of the community, heritably and irredeemably". The subjects were described as:
"All and Whole the Harbour of Greenock, and Piers, and Quays of the same, which have been all built and gained off the sea since the Year Seventeen hundred, consisting and comprehending eight acres, three roods, and ten falls, conform to a plan thereof signed by him of this date, with the anchorages, shore, bay, and ring dues, payable by all kinds of ships or vessels coming into the Harbour of Greenock, or into any other Harbour or Harbours that may be built betwixt the West side of the Kirk Burn, and the East side of the Royal Closs, in Greenock, whether belonging to strangers, or to the said JOHN SHAW STEWART, and his successors, their vassals and tenants, in the Burgh and Baronies of Greenock, together with the tolls, ladles, and customs in use, to be paid by the inhabitants of the Burgh and Barony of Greenock, or strangers coming into the said Harbour or Harbours, which may be built in manner before-mentioned, with coals and vivers of all kinds, for the coal barrel, weights and measures of the said Burgh".
The disponees were given specific power
"to improve and enlarge the said Harbour, and to erect and build other Harbours within the space above-mentioned, and gain ground off the sea for that purpose; and to apply to their own use the anchorages, shore, bay and ring dues, and other tolls and customs foresaid, payable by all kinds of ships and vessels, that shall come to the said present Harbour, or other Harbours to be built, as said is, and for coals and vivers foresaid".
There followed a provision in the following terms:
"But that it shall not be lawful nor in the power of the said Magistrates, Treasurer, and Town Council, nor their successors in office, to sell, alienate, or dispone, either irredeemably, or under reversion, nor to wadsett, or burden with infeftments of annual rent, or any other servitude or burden, the said Harbour with the anchorages, shore, bay, and ring dues, &c., whereby the same may be evicted, or adjudged; and that all such dispositions, conveyances, wadsetts, or other deeds, so to be granted by them or their foresaids, conveying, or burdening, the said subjects, with any real diligence following thereon, shall ipso jure be void and null, and shall only be effectual against the granters of such deeds and conveyances; and that notwithstanding of such conveyances, or other deeds so to be granted, the right of property of the said Harbours, and others hereby conveyed, shall for ever remain with the said Magistrates, Treasurer, and Town Council, and their successors in office, for the use and behoof of the said community, and for the purpose of building, enlarging, and improving the said Harbours".
Although there has been no formal proof at any stage in this process we have been referred to the writs, titles and other documents founded upon by the appellants and we must treat their averments of fact pro veritate in so far as they are truly averments of fact which might be apt to be proved by evidence; some of the averments made are either arguments or submissions as to the meaning or effect of documents relating to the subjects. For the purposes of the appeal, however, it is not in dispute that the grantees, and later their successors, became infeft in the said subjects and in other adjacent subjects disponed in a Feu Charter granted by Lord Cathcart and dated 31 March 1819. Nor is it in dispute that the said subjects are included within the subjects described in the property sections of the title sheets to which Land Certificates REN 42086 and REN 43834 refer.
The essence of the appellants' submission to the Keeper was that when, in 1987, the Scottish Development Agency (now represented by their statutory successors Scottish Enterprise) obtained conveyances from the Clyde Port Authority and James Lamont & Co. Ltd., and applied for first registration under the 1979 Act as proprietors of the subjects in question the applicants misinformed and misled the Keeper as to the true and full facts bearing upon the ownership in law of substantial parts of the subjects constituting the two parcels of heritage in respect of which the applications for registration were made and registration was granted. It was submitted that a study of the documents listed in the inventory, of the relevant legislation, and of the material produced by those who sought, and eventually obtained, first registration was certain to reveal that the said trustees (the magistrates and others and their successors) had never ceased to be infeft in the subjects disponed to them including very substantial parts of the subjects now described in the property sections of the two Land Certificates. It was submitted that it followed that there were clear, material and very important inaccuracies in the register; and that the register should accordingly be amended to reflect the true position as to the heritable title. At that stage of the proceedings, the focus of the application by the present appellants was on the alleged inaccuracies in the register, rather than upon possible prejudice to any proprietor in possession; so there were, at that stage, no additional detailed representations advanced to indicate that the inaccuracies "had been caused wholly or substantially by the fraud or carelessness of the proprietor in possession" see section 9(3)(a)(iii) of the 1979 Act. As already noted, the Keeper declined to rectify the register as requested by the appellants, and the appellants lodged appeals to the Lands Tribunal in respect of both land certificates.
The appeals in relation to the subjects described in the property section of the two certificates came before R.A. Edwards, W.S. ("the member") sitting as the Lands Tribunal for this purpose. From the written representations of the parties it became clear that the appellants were making submissions to the same general effect regarding the subjects included in both Land Certificates although there were material differences arising from the different histories of the various subjects involved. The member duly considered the submissions in relation to both at the same hearing. After sundry procedure he heard debate at the end of January 1998 and issued a substantial Opinion dated 29 July 1998. In that Opinion he explained that the Keeper had taken pleas to the relevancy and specification of the appellants' averments and as to the competency of rectifying the register. He also dealt with a plea advanced on behalf of the Keeper, and supported by the agent acting for Scottish Metropolitan Property, that the appellants had no title or interest to appeal to the Lands Tribunal against the decision of the Keeper. He sustained the Keeper's plea-in-law to the relevancy and specification to the extent of excluding the averments made by the appellants in support of their case for rectification, on the basis that the appellants had failed to make relevant averments as to the cause of the alleged inaccuracies which, in terms of section 9(3)(a)(iii), they were required to demonstrate. In the result he dismissed the appeal to the Lands Tribunal. He also sustained the plea of no title to sue. He did not uphold the argument presented on behalf of the Keeper that rectification could not competently be made. He concluded that rectification was competent if an inaccuracy was demonstrated: see section 9(1) of the 1979 Act. The member also drew attention in his Opinion to the terms of section 25(1) of the Act which provides:
"(1) Subject to subsections (3) and (4) below, an appeal shall lie on any question of fact or law arising from anything done or omitted to be done by the Keeper under this Act, to the Lands Tribunal for Scotland".
(Nothing turns on the terms of subsections (3) or (4)). The appeal to this court from the decision of the Lands Tribunal is taken under section 11(1) of the Tribunals and Inquiries Act 1992, Schedule 1, Part II, para. 54. This gives a party to proceedings before the Tribunal a right of appeal to this court if that party "is dissatisfied in point of law with a decision of the tribunal". The form of appeal is that prescribed by Rule of Court 41.19, which requires the appellant inter alia to state grounds of appeal. It follows that the jurisdiction of this court is to examine the decision of the Lands Tribunal in order to determine if the decision is flawed by an error of law identified in the grounds of appeal.
On 7 September 1998 the appellants lodged a form of appeal under Rule of Court 41.19 containing grounds of appeal, and made additions thereto on 4 December 1998. The other parties lodged answers. The amended grounds of appeal extended to some 15 pages. The Opinion of the member extended to 41 pages. The respective parties to the appeal to this court have lodged summary or outline notes of argument extending to 37 pages. These documents are referred to for their terms; but it is not intended in this Opinion to attempt to summarise them, except in so far as is necessary for the purpose of identifying and determining the questions of law which this court is required to examine. It is, however, necessary to deal with some procedural matters which the appellants have raised. They argue that they have been denied "due process" in various ways in the course of the proceedings before the Lands Tribunal. These matters can be dealt with briefly under reference to the original grounds of appeal, although they were developed both in the appellants' Note of Argument and also in oral submissions to this court. It appears to us that the appellants, perhaps quite understandably, may have had some difficulty in understanding fully the character of a legal debate on matters of relevancy, specification and competency and that they have to some extent misunderstood precisely what happened at the debate. They now assert (ground (1)) that the member allowed the debate to exceed the restricted preliminary issues and thus prejudiced the appellants who were not prepared for debate on certain of the matters canvassed in argument. They take particular exception to the part played, both in the proceedings and in the Opinion, by the subject of fraud, because the appellants maintain that their case did not rest upon averments of fraud. They also say that the debate was "disjointed" by reference to reports of decided cases which did not appear to them to bear directly upon the subject-matter raised by the application to the Keeper. They object (ground (2)) to what they characterise as the taking of "selective points" from the appellants' productions and ignoring other relevant documents and written material which the appellants had produced. They make a number of criticisms (ground (4)) of the omission of the member to take note of certain correspondence. They claim (ground (6)) that the member omitted to take notice of certain statutory provisions which were relevant, and of an opinion expressed by Professor J.M. Halliday. They summarise the matter in this way:
"(9) In view of the foregoing statements the Appellants claim they have been denied due process, as the Member's decision is based not on the notified subjects of debate, but rather on selected parts of their Productions, which in the context of their application and given that the Member has made several assumptions in regard to the application and meaning of the Appellant' case for appeal, and the object of the remedy requested. The Appellants therefore request that they be granted the opportunity to present all their facts to the court, as it is clear that the Keeper has not admitted the full extent of his knowledge of the case, but is relying on irregular application of reported authorities which have no substance when addressed correctly in relation to this appeal".
In our view it is clear from the very full Opinion prepared by the member that he has considered comprehensively the matters properly raised by the pleas which were to be debated before him. If the appellants were not prepared for debate on certain of the subjects that is by no means apparent from the terms of the member's Opinion, in which the arguments and possible arguments for each side of the various questions appear to be comprehensively set forth and carefully examined. In any event, it is clear that it is the duty of this court to consider the questions of law which have been raised by the appellants. This court had no difficulty in acceding to the appellants' request that they be granted the opportunity to present all their arguments to the court, although the court has to deal with points of law, not with issues of fact. The appellants have shown no sign of being unprepared for debate on all the subjects arising out of the member's Opinion and we are satisfied that they have not been prejudiced by being taken improperly by surprise. In relation to the averments and pleadings relating to fraud, this matter will be considered later. We are not persuaded that the "numerous references to cases" disjointed the debate. It appears to us that the appellants may not properly have understood that a reported decision of one court in one context might well be referred to in debate for the legitimate purpose of shedding some light on the possible solution to a problem of a superficially different character and arising in a quite different context. In any event, we shall have to give consideration, in the light of the submissions made to us on these matters, to the relationship between conveyances which flow from compulsory acquisition and conveyances by uninfeft vendors. In relation to the allegation that the member addressed selective points taken from the appellants' productions, we are not persuaded that this is so. The member was considering a number of specific arguments directed to matters of title, specification and relevancy. And even if the member did fail to give due consideration to some other relevant document, or statute or the like, it is our duty to take notice of this relevant material; and we intend to do so in considering all matters of substance. Ground (4), averring the alleged failure of the member to have regard to certain correspondence, relates essentially to a matter which has been fully canvassed before the member and before us as to the alleged carelessness of the Keeper, and we shall take note of the documents to which our attention was drawn. The other matters raised under this ground of appeal will arise later in considering the main issues. We shall also, in considering the main issues, have regard to the effects of the statutes quoted in ground 6 and the opinion expressed by Professor Halliday. We are not satisfied that the appellants have been denied "due process" in the proceedings before the Lands Tribunal. In any event, as we have sought to make clear, the questions of law which have been determined by the Lands Tribunal are raised again in this appeal and it is our duty in the light of the very full submissions made to us by the appellants and the respondents to determine those legal issues for ourselves. We are in no sense bound by any expression of opinion by the member on any issue of law in so far as that opinion is challenged in this appeal. We turn accordingly to consider the main issues.
The appellants' case can be expressed shortly. They have consistently maintained that a careful examination of the relevant conveyancing documents from 1772 until 1987 and of the legislation relating to Greenock Harbour, to the Clyde Port Authority, to the Scottish Development Agency and to Scottish Enterprise discloses that the subjects in which the magistrates and others were infeft, as trustees, by at latest 1842 were never conveyed by the infeft trustees to anybody else; and that nobody else ever could have acquired, or did acquire, from them, the infeft owners, a valid title to these subjects or any of them. Although various enactments gave persons and office bearers named therein certain management responsibilities in relation to Greenock Harbour, including the said subjects, none of these statutes could or did effect any transfer of ownership thereof or title thereto from the magistrates and others, as trustees, to anybody else. Thus the Clyde Port Authority, although they succeeded to the powers, functions, responsibilities and property of their statutory predecessors, never acquired heritable title to the heritable subjects of which the said trustees were at all time infeft proprietors. Accordingly the Clyde Port Authority had no power to sell those subjects and could not give a good title thereto to any would-be purchaser. The Scottish Development Agency was never in any better position than their predecessors, the Clyde Port Authority. This submission applied to subjects described in REN 42086 (see Note of Argument 1(e) and (f)) and also to REN 43834, for those subjects were also purportedly, but invalidly, "sold" by the Clyde Port Authority in 1974 (see Appellants' Note of Argument 1(g)). Nothing in any of the legislation purported to enable the Clyde Port Authority to sell or give a valid title to any heritable property that they did not own. Nothing in the Lands Clauses Consolidation (Scotland) Act 1845 applied so as to have any such effect. The relevant subjects vested in the magistrates and others as trustees had never been the subject of any compulsory purchase order (see Note of Argument 2(a) to (c)). It was submitted that a careful examination of the material produced by the applicants for first registration would have led the Keeper, and the applicants, to check the Clyde Port Authority Act of 1965 and by doing so they would have been able to discover that the Greenock Harbour Trust from which the Clyde Port Authority claimed a right of succession had never themselves owned the subjects in question. No titles were ever produced in the names of the Greenock Harbour Trust or the Clyde Port Authority. In this context the appellants argued (see 2(d)):
"No clause of deduction of title was included, they could not be the owners, and a check of the 1965 C.P.A. Act would have disclosed the limitations imposed by section 131 of that Act, and very importantly that the mensural areas claimed to be owned and disposed by the C.P.A. were outwith the boundaries of that which they sold, on the site plan associated with REN 42086".
This argument is further developed in paragraph (e) and it is submitted:
"Had the appeal gone to a full hearing these facts would have been fully discussed".
In the Note of Argument (paragraphs 3 and 4) and also in oral submissions to this court the appellants developed these submissions and submitted that the Keeper must have failed in his duty to examine the whole history of the title when the relevant applications for registration were made to him; plainly he had failed to do so. In particular, he had failed to study the history of different parts of the subjects which were said to be included in the subjects in respect of which first registration had been sought; such a study would have revealed tell-tale discrepancies and errors indicative of the real underlying problems.
In the light of this fundamental attack upon the rights and title of the Clyde Port Authority and any others claiming to have succeeded to these rights, it is important to make clear what it was that the member decided, as explained in his Opinion. First he had to decide if, despite the earlier history - from 1772 onwards - the purported titles to the subjects, the conveyances and any other material which induced the first registration of the subjects were of such a character (for example by reason of there being statutory conveyances) that any registered rights in the subjects previously vested in others had been extinguished; and that, as a result, the Keeper had no right to look behind the relevant statutory conveyances. This argument depended upon the effect of certain provisions in the Lands Clauses Consolidation (Scotland) Act 1845 (the 1945 Act). If the Keeper's argument - based on the assertion that the statutory conveyances were conclusive - prevailed then there would be no inaccuracy in the register; if that argument did not prevail, then the inaccuracy in the register would, the appellants submitted, be clearly demonstrated. This, it appears to us, was the main issue in relation to inaccuracy. In considering this issue, the member considered and rejected the submission made on behalf of the Keeper, "that the Keeper, on first registration, did not require to consider whether the titles of the disponers of the two statutory conveyances were valid but was entitled to accept each at face value" He stated,
"It is, in my opinion, therefore clear that when title is being taken by way of a Schedule A conveyance the disponee (and therefore the Keeper on first registration) must be satisfied by an examination of the title in the ordinary way that the disponer has a valid title".
After considering the arguments he says,
"I am satisfied that in this case neither the SDA's solicitor nor the Keeper would have been under any duty to examine any writ prior to the statutory conveyances with a view to the inclusion of the burdens therein contained in the burdens section of the two title sheets REN 42086 and REN 43834. Equally however...it was the duty of the purchaser's solicitor and, also, the duty of the Keeper to examine each and every writ prior to the statutory conveyances with a view to satisfying themselves that it was a valid link in the relative title chain, but only to the extent that such writs fell within the prescriptive progress of titles of one or other of the two lots of ground purchased by the SDA" (emphasis added).
It is, we consider, quite clear from the member's Opinion that he was of the view that both the solicitor acting as agent for the applicant for first registration and the Keeper were under the normal duties that would fall upon a prudent conveyancer to satisfy themselves at the relevant times that there was a valid prescriptive progress of titles. (No doubt the duty upon the applicant's agent would arise at the time of the conveyance). The duty upon the Keeper arose when he came to consider the application and the accompanying writs. The essence of the decision in relation to inaccuracy appears to be that it was the duty of the purchaser's solicitor to identify the writ from which the prescriptive progress was said to run, being a title duly recorded in the Register of Sasines not less than ten years prior to the application for registration, and to demonstrate that the holder of that title or, where appropriate, his successors in title, enjoyed uninterrupted possession based on that title over the period of positive prescription, namely ten years. On this the member concluded,
"Accordingly, relying on the operation of positive prescription, neither the SDA nor the Keeper would, on first registration, have contemplated looking beyond the prescriptive writ".
He observed that the productions placed before him in relation to the two parcels of land appear to extend in each case to a prescriptive progress of titles. Given the provisions of the 1979 Act, including section 25(1) the burden was upon the appellants to establish something "done or omitted to be done by the Keeper under [the] Act". Even although the member considered that the averments and arguments on behalf of the appellants were not adequate, he took it upon himself to examine the relevant conveyances in favour of the Scottish Development Agency and found them to be "carefully and rigorously drafted so as to conform in all respects with Schedule A to the 1845 Act". He then examined the pleadings which were critical of the Keeper's alleged acts and omissions and his conclusion is clearly stated in the words,
"And, in my opinion, it clearly cannot have been intended by Parliament that the tribunal should carry out what would amount to an audit of the Keeper's work simply because the appellants suspect that he may not have carried out that work correctly in all respects. The onus, as I have already observed, is clearly on the appellants not on the Keeper".
He thus found that the appellants' averments in relation to what the Keeper had done or omitted to do were wholly lacking in specification. Nonetheless he felt able to hold that the lack of specification did not meet and dispose of the main averment for the appellants to the effect that the title to Greenock Harbour was never vested in the parties who purported to sell the harbour to the SDA. Of that he says that he is unwilling to exclude that averment from probation because,
"If the appellants were to be successful in proving that averment the result would, arguably, be that the statutory conveyances in favour of the SDA were invalid. And it must follow that, if the Keeper has accepted as evidence of the titles he has registered conveyances which are invalid, there is an inaccuracy in the register".
It is accordingly clear that, on the principal issue, that issue of inaccuracy, the Lands Tribunal has not determined that the register is accurate. Nor has it been determined that it is inaccurate. We understand the Opinion to be to the effect that the matter of alleged inaccuracy would have to be resolved after a proof, if it needed to be resolved at all.
That, however, brings us to the next branch of the decision. If the Keeper's argument as to the effect of the statutory conveyances is not conclusive, and if it is still open to the appellants to show that there are inaccuracies in the register, then section 9(3) of the 1979 Act comes into play. It is clear, as the member points out, that even if there is an inaccuracy in the register, the Keeper does not have an immediate duty or an unfettered power to rectify the register. His power is restricted in ways particularised in section 9(3). These include the provision (read short),
"(3) If rectification under subsection (1) above would prejudice a proprietor in possession -
(a) the Keeper may exercise his power to rectify only where - ...
(iii) the inaccuracy has been caused wholly or substantially by the
fraud or carelessness of the proprietor in possession".
The only valid basis advanced by the appellants for requiring the Keeper to exercise his power to rectify depended on establishing that the inaccuracy had been caused in a way specified by the statute. Accordingly the issue which arose under section 9(3) was whether or not the appellants had averred a relevant basis for a proof in which they would seek to show that the conduct of the proprietor in possession caused the inaccuracy "wholly or substantially" and that that conduct was properly capable of being described as "fraud or carelessness". The member concluded that without doubt there was a proprietor in possession; and he is certainly right about that. It does not seem to matter - for the purpose of ascertaining whether or not there is prejudice - whether or not Scottish Metropolitan, whose heritable interest is derived from Scottish Enterprise, are themselves proprietors in possession; for whoever are the proprietors in possession of the subjects are bound to be prejudiced within the meaning of section 9 by the rectification which these appellants seek. In dealing with the issue of fraud or carelessness, the member has pointed out that it is fraud or carelessness not on the part of the Keeper which may be put in issue but fraud or carelessness of the proprietor in possession. Thus much of what the appellants seek to establish about the Keeper'' role is wholly beside the point. The member thus concludes,
"I am in no doubt that in considering the appellants' case in so far as it depends upon the provisions of sub-paragraph (iii) of section 9(3)(a) I am bound to disregard those of their averments which refer to the Keeper's alleged failure to 'make any investigation into the subjects'. I am thus left with the appellants' averment that Scottish Enterprise 'obtained title, and subsequent Land Certificate, by circumvention of prescribed forms of conveyance and registration in the 1845 and 1979 Acts'".
The member then considered in some detail what he understood to be the main thrust of the appellants' case in this regard, namely that fraud on the part of the proprietor in possession was what was being alleged. It is unnecessary for this court to consider the matter of fraud, because the appellants have made it abundantly clear that they do not seek to advance any case based on fraud. In their first ground of appeal they complain "the substance of debate by the respondents centred on fraud, which formed no part of the appellants' averments...". We need not express any opinion on this procedural point at this stage as fraud is not now an issue in the case, whatever may have been the position earlier. In relation to carelessness, the member summarised the appellants' position as being to the effect that "if there has not been fraud then...there must at the very least have been carelessness on the part of one or other of the parties involved in the first registration process". The member says, "The difficulty that leaves them in is that they again have no precise theory as to who may have been careless and how". In the course of the hearing they said that there "must have been" carelessness in the way the forms necessary for first registration were completed. He then points out that as Scottish Metropolitan were not parties to the first registration process there could be no question of their having caused any inaccuracy in the register. In relation to a possible case of carelessness against Scottish Enterprise the member notes that there is an absence of any specific criticism made by the appellants and simply concludes that there has been no basis shown in averment for any finding of carelessness on the part of Scottish Enterprise. He also points out that the appellants have made no averments whatsoever as to the standard of care to be expected of applicants for first registration, given the responsibilities and practice of the Keeper who specifies "such documents and other evidence as he may require": see section 4(1). In short, therefore, the appellants' case fell to be dismissed because there were no relevant averments of carelessness on the part of the proprietor in possession to empower the Keeper to rectify the register.
It is appropriate to notice briefly, and to dismiss summarily, an argument presented to the member, but only faintly repeated to this court, to the effect that rectification was rendered competent by section 9(3)(a)(i) because the interest of the magistrates and others as trustees was "an overriding interest" within the meaning of that provision. However, section 28(1) of the 1979 Act defines "overriding interest" in terms which plainly do not include any interest that the magistrates and others might have as trustees. Section 9(3)(a)(i) has accordingly no bearing on the case. We can confine ourselves to referring without repeating it to the member's full discussion of and conclusions regarding this matter in his opinion.
The third real issue dealt with by the member is the issue of title and interest. The question is whether or not the appeal by these appellants to the Lands Tribunal fell to be dismissed because the appellants have failed to aver a title and interest to seek rectification. After discussing the arguments, the member upheld the Keeper's first plea in law, "The appellants having no title or interest to appeal in the circumstances, the appeal should be dismissed". As he points out, the appeal to the Lands Tribunal had been intimated to Inverclyde Council. Inverclyde Council chose not to be represented at the hearing but submitted a written statement suggesting that the present appellants had not explained their position properly and reserved the right to make further observations in respect of any response made by the appellants. Their written statement also contained the following passage:
"It is considered on the basis of the appellants' pleadings to date that even if there is an inaccuracy in the register (which has not been established and is not accepted) the Keeper has no power to rectify it. Accordingly the appeal should be dismissed. It is evident from the appellants' productions that they have told the officials of the Council at length about their concerns, without ever being able to convince the Council that any action on its part was appropriate".
In our opinion, the first issue that logically arises for decision is the issue of the appellants' title and interest in this matter. The appellants rest their title upon their being citizens, ratepayers and beneficiaries of the trust, and as somehow representing the people entitled to and deprived of the benefits of the trust and thereby aggrieved by its being abused. They point to the absence from the 1979 Act of any requirement upon a person who makes a request under section 9 or seeks to appeal under section 25 to establish title and interest. In any event, as persons interdicted by the registered proprietor in possession, their right to appeal under section 25 is said to be essential to enable them to challenge the proprietors' title to obtain the interdict. In reply, counsel for the Keeper submitted that a person who came to the Lands Tribunal or to the court to seek a legal remedy must have a real, that is to say substantial, interest. Reference was made to McLaren's Court of Session Practice at page 188 and to the speech of Lord Dunedin in D. & J. Nicol v. Dundee Harbour Trustees 1915 SC (HL) 7 at page 12 et. seq. His Lordship there said
"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest...It would be useless, even if it were possible, to go on to enumerate in detail the various cases in which a title to sue may be found, so I pass at once to the class of cases which are analogous to the present. If any persons are in such a relation as to constitute them trustees, or if, without being technically trustees, they have a fiduciary duty to others, those persons to whom they owe a fiduciary duty will have a title to sue to prevent infringement of that duty. Infringement of duty may consist in wrong dealing with property".
His Lordship then goes on to give examples. What is clear, it was submitted, is that the beneficiaries of a trust may have a title to sue the trustees to prevent infringement by the trustees of their duty; but they have no title to raise proceedings which it might be appropriate for the trustees to raise. Reference was also made to Inland Revenue v. Clark's Trustees 1939 S.C. 11. At page 22 the Lord President (Normand) said:
"When counsel was asked to state what rights of action the beneficiary has by our law to protect his interest in the trust estate, he was obliged to admit that these rights of action were a right to interdict the trustee from committing any breach of trust, and a right by personal action, for example a declarator or an action of accounting against the trustees, to compel them to administer the trust according to its terms. There is also a personal action of damages against the trustees for breach of trust, and it is open to the beneficiary, by suitable procedure in this Court, to bring about a change of administration of the trust either by a transfer of the administration to new trustees or by transfer of the administration to a judicial factor. But there is no action by which a beneficiary as such can in any way vindicate for himself any of the trust property. In my opinion, it is no exception from, but rather a confirmation of, this proposition, that a beneficiary may compel trustees to give the use of their names or to grant an assignation of their claim against a third party, or that a beneficiary may sue a third party if he calls the trustees as defenders along with him and alleges a league between the trustees and the third party to enable the third party to evade his obligations to the trust. The result of this is, in my opinion, that the beneficiary's right is nothing more than a personal right to sue the trustees and to compel them to administer the trust in accordance with the directions which it contains...".
Beneficiaries, as the appellants claim to be, had no right whatsoever to vindicate trust property in any way. It was also submitted that the appellants were in effect seeking to have Inverclyde District Council entered on the Register as proprietors in place of those currently appearing there: for they were said to be the current trustees. Thus the appellants' application to the Keeper under section 9 stated:
"The Land Register Records should be rectified to show the true identity of the Trustees and Beneficiaries of these subjects, with real rights, as detailed in the Feu Contacts of 1772, and Sasine Records for these subjects from 1811 to 1842".
It was obvious that if anyone had a title to seek such a rectification it must be Inverclyde District Council. Assuming that the appellants were entitled to make a "request" within the meaning of section 9(1) it would nevertheless be bizarre if the register could be rectified in the way proposed with the result that persons who were deliberately not requesting any alteration were to find themselves entered on the register as proprietors. Ownership of property could bring with it liabilities, and it would be odd indeed if a body such as Inverclyde District Council which had declined to enter the process, and which appeared to be opposed to the proposed rectification, could be entered into the register in the way suggested by the appellants. Furthermore, as the member has noted very fully, rectification of the register was intended to be a relatively rare event. That was abundantly plain from Short's Trustee v. Keeper of the Registers of Scotland 1996 SC (HL) 14. It is also plain both from the speech of Lord Keith, at pages 21/22, and from the terms of the statute, that the alternative to rectification is indemnity in respect of loss: see sections 9 and 12. If one asks who would be entitled to seek to be indemnified by the Keeper in respect of any loss suffered as a result of a rectification, or the refusal or omission of the Keeper to make such a rectification, or an error or omission of the kind specified in section 12(1)(d) the answer must be that, in the present case, the right to claim would lie with the trustees of the trust said to be still "active". They alone could suffer loss. It would be an odd result if the right to claim rectification was available to the so-called beneficiaries whereas the right to claim either rectification or indemnity for loss suffered must lie solely with the trustees and not with the beneficiaries.
In our opinion, there is no answer to this fundamental preliminary point. The scheme of the Act is clear from the full discussion in Short's Trustee not only in the House of Lords but in the Court of Session, 1994 S.C. (Lord Coulsfield, at pp. 126 et seq and Lord President Hope at pp. 137 et seq) and it need not be discussed here. There is nothing in the present case to suggest that we are here concerned with a vindication of public right of the kind considered by Lord Clyde in Scottish Old People's Welfare Council, Petitioners 1987 S.L.T. 179, at page 184I to K. This is not a true actio popularis in the sense discussed by Lord Clyde at the passage referred to. The fact, if it be a fact, that the appellants have been interdicted from encroaching upon the subjects or part of the subjects included in the two Land Certificates in question does not appear to us to give them any title to seek a rectification under the provisions of the 1979 Act. We consider that it is clear that those in unchallenged possession of the subjects (even if not proprietors) have a right to exclude others from encroaching upon them. A proprietor in possession never needed to produce a complete feudal title in order to obtain interdict against encroachments upon his property. Burn-Murdoch on Interdict page 40, referring to the Opinion of Lord Glenlee in Mackie's Trustees v. Reekie 1832, 11 S. 157, at 158. The appellants have never claimed that they had any title whatsoever to the subjects; they claim no competing title. As the appellants themselves acknowledge, persons who were total strangers to Greenock could not have a title to seek rectification under section 9. Yet such people might, for example in the course of some environmental or similar protest, seek to enter upon the subjects in question. Those in possession of the subjects could no doubt obtain an interdict against their intrusions and activities there. We do not see how the obtaining of such an interdict could then confer upon the interdicted strangers a title to seek rectification. Whether or not there is some other way of meeting the interdict is not for us to comment upon: the matter was not discussed before this court. For the reasons given, including those preferred by the member and those advanced for the respondents, we consider that the present appellants have neither title nor interest to pursue this matter either to the Lands Tribunal or to the court under the provision of the Tribunals and Inquiries Act 1992. We consider that the Lands Tribunal were entitled, and indeed bound, to uphold the Keeper's plea of not title to sue.
One additional point may be noticed. In the appellants' adjustments to their appeal, they call upon the Keeper "to rectify the Land Register to show the true owners as the democratically elected Inverclyde District Council, (the Trustees), as successors to the Magistrates and Councillors of Greenock...". The appellants' lack of title and interest would, in our opinion, be clear, regardless of how the trust was constituted or how the trustees obtained office. It is not difficult to envisage situations in which a beneficiary would see it as frustrating and perhaps unfair that he had no direct means of vindicating his beneficial interests, and that he was limited to taking action against trustees whom he might regard as in some way ill-suited to assert the beneficiary's interests. But the body who, in the present case, are said to be the trustees are, as the appellants point out, democratically elected. Accordingly although that does not have any direct bearing on the question of title and interest, it serves to demonstrate the propriety, and indeed fairness, where the trust is for the use and behoof of the community in general, of having the elected Council as the trustees, and leaving it to them, rather than individual members of the community whose views may not be shared by others, to decide whether, in the interests of the community, to decide whether there is some matter which requires vindication, and if there are alternative remedies, to select that which, in their view but in the interests of the community, should be sought.
In relation to the question as to whether or not there was or might be an inaccuracy in the Register, Miss Crawford, who appeared for the Keeper, began her submissions by saying that she would for the purposes of the submissions assume that there was an inaccuracy in the Register. This was partly because she submitted that it was impossible to be sure what the nature of the inaccuracy was said to be. It was certainly not suggested by these appellants that the trustees whose vested title they were somehow seeking to vindicate had title to all parts of the subjects described in the Land Certificates; the appellants could not properly seek a rectification when they could not make clear precisely what the alleged inaccuracies were; the remedy sought could not be matched up to the alleged inaccuracies. The appellants had not in fact made clear precisely what the alleged inaccuracies were, although they conceded that the supposed inaccuracies did not affect all the land described in the Land Certificates. Neither she nor the solicitor advocates acting for the other respondents sought to challenge the basic argument on inaccuracy advanced by the appellants by tracing a progression of titles from the original owners in the 18th and 19th centuries down to modern times. It was the Keeper's view that what was on the register was accurate, because the Clyde Port Authority had become heritable proprietors of the subjects by virtue of the Clyde Port Authority Order Confirmation Act 1965, Part IV, Transfer of Undertakings. Section 31(1) thereof provided, "On the appointed day the transferred undertakings shall by virtue of this Order be transferred to and vest in the Port Authority". The transferred undertakings included "all heritable and moveable property", see section 31(2). Section 31(3) provided
"The vesting of the transferred undertakings in the Port Authority by virtue of this section shall, in relation to heritable property, take effect without the necessity of recording in the General Register of Sasines any conveyance, notarial instrument, notice of title or other deed or writing".
The Keeper relied upon this statutory conveyance. In relation to REN 42086 the Keeper's position was that the statutory conveyance was valid against all-comers even without a prescriptive process; but he believed he could demonstrate a prescriptive progress for about half the land. In relation to REN 43834 he had the statutory conveyance and a prescriptive progress for all the subjects. Contrary to the view expressed, in January 1980 by Professor Halliday, the Keeper considered that an uninfeft proprietor could grant a Schedule A conveyance. Professor Halliday's view was not universally accepted: there was an ongoing debate in conveyancing circles as to whether or not an uninfeft proprietor could grant a conveyance: cf. article in the 1969 Journal of the Law Society 321. Contrary to the submission of the appellants presented to the member of the Lands Tribunal and repeated in grounds of appeal, the fact that the subjects included foreshore did not mean that there had to be a positive prescription for a continuous period of more than ten years; cf. section 1 of the Prescription and Limitation (Scotland) Act 1973; section 1(4) applied only in relation to the Crown. On no view could the Keeper's position be described as "careless". In any event the conduct of the Keeper in relation to registration was not a matter properly raised under the 1979 Act. The Keeper's longstanding and public practice has been to accept the assurances offered to the Keeper by a statutory undertaker who has possessed the subjects openly for the prescriptive period and asserted title to them. If the matter of the alleged carelessness on the part of the Keeper was now to be considered then the Keeper might wish to amend the pleadings in order to refer to other matters that would bear upon the alleged carelessness.
Mr. McIlvride, who appeared for Scottish Enterprise, submitted that there was no requirement on the part of the Scottish Development Agency, who had originally purchased the subjects, to look beyond the Schedule A conveyance which the Clyde Port Authority produced to them cf. Fraser v. Lord Lovat 1898, 25 R. 603, per Lord Kinnear at page 618. Reference was also made to section 2 of the Prescription and Limitation (Scotland) Act 1972. It was submitted that there was no need to look even for a prescriptive progress when faced with a statutory conveyance. Reference was made in this connection to section P of the Register of Sasines Practice Book which indicated that there was no need to go behind a statutory conveyance. There was no suggestion that the Clyde Port Authority did not possess and occupy all the subjects that they conveyed. Against this background, it was essential that the appellants be required to give full specification of the alleged carelessness of the current proprietors in possession. Every title or other document that the Keeper had required had been supplied. So, when did the alleged carelessness occur? In what did it consist? What standard of care was founded upon? The absence of any specification of the alleged carelessness was fatal to the appellants' claim. It could not be the responsibility of the proprietor in possession to have to justify to anyone other than the Keeper the circumstances warranting first registration.
Mr. Connel adopted and developed these submissions. He also explained the precise position of the Scottish Metropolitan Property p.l.c.
We do not think it is possible at this stage on the basis of the arguments submitted to us and submitted to the Lands Tribunal to determine all the basic questions that could arise about the history of the subjects and the various parts thereof between 1772 and the setting up of the Clyde Port Authority in 1965. It is clear, however, that the Keeper had what appeared to be a prescriptive progress of title for over ten years when, in 1987, he was invited to grant first registration in respect of the subjects in REN 43834. The application ran in the name of a statutory undertaker, the Scottish Development Agency, claiming infeftment from another statutory undertaker, the Clyde Port Authority, which had occupied the subjects peaceably since 1965 and had what appeared to be a valid statutory conveyance in its favour. In the circumstances, we are not persuaded that there was or is necessarily any inaccuracy in the register. Although the basic argument presented by the appellants is formidable enough it does not necessarily mean that the register is inaccurate. It would, however, be difficult to reach a final conclusion on this point without fuller examination of all the available materials. It follows that this appeal is not being decided on the basis that the register has been shown to be accurate.
However, even if there is an inaccuracy in the register, and even if the present appellants had title and interest to invite the Lands Tribunal for Scotland or the court to order the Keeper to rectify the alleged inaccuracy, we do not consider that the appellants have properly presented to the Tribunal or to this court a relevant case of "carelessness of the proprietor in possession". We are not persuaded that the ordinary rules of pleading applicable in our courts necessarily apply to a matter of this kind. No doubt the Lands Tribunal could order full pleadings if it thought that to be necessary; but, in the absence of any such order, we see no reason to hold that the appellants' case is irrelevant simply because they have not given full specification of all their complaints. Even without further specification, the essence of the appellants' case is clear enough. What they maintain is simply that, as fraud is excluded, and as something has gone wrong (as evidenced by the inaccuracy itself), it must follow that the proprietor in possession has been negligent. We do not consider that such an approach is justified. As the proprietor in possession was Scottish Enterprise, and as that body traced its title through its statutory predecessor, the Scottish Development Agency, which in turn traced its title from the Clyde Port Authority, which based its title to the subjects peaceably occupied by it since 1965 and upon the 1965 Act it would, in our opinion, be essential for a party who alleged carelessness within the meaning of section 9 on the part of the current proprietor in possession to spell out when that carelessness occurred, what it consisted in and precisely who perpetrated it - the latter being of vital importance given that it is the carelessness of the proprietor in possession that matters for the purposes of section 9(3)(a)(iii). Furthermore, as we are dealing with a matter of carelessness in a very special context, it would, in our opinion, be important for the appellants to explain what standard of care it was sought to be applied. The importance of this may be seen in Hunter v. Hanley 1955 SC 200. In a matter of the present kind, where any carelessness would apparently have to be on the part of the solicitors rather than the actual proprietor in possession, there would evidently have to be material indicating that the solicitors departed from a usual and normal professional practice or that the alleged failure to discover alleged flaws in the title of the Clyde Port Authority to the subjects they occupied, by tracing the true infeft owners back beyond the prescriptive period was a failure which no professional conveyancer of ordinary skill would have committed if acting with ordinary care. For these reasons, and for those given by the member of the Lands Tribunal, we consider that the appellants have not made a relevant case of carelessness on the part of the proprietor in possession. Carelessness can not be discovered simply by a perusal of the documents produced. The point is a fortiori if, as Mr. Connel submitted, Scottish Metropolitan Property are proprietors in possession in respect of the subjects which they are seeking to register in their name; that, however, is also an issue which it is unnecessary to resolve.
In all the circumstances, we consider that this appeal must be refused. We have deliberately not gone into all the arguments as fully as the member of the Lands Tribunal did. Through no fault of the appellants they were not able to give us the full submissions that we should have looked to counsel for. Furthermore we heard little from any party about the progression of titles before 1965. It is somewhat unfortunate that in the present case the appellants have started with the 1772 Feu Contract and worked forwards in time, rather than working backwards with a view to discovering whether there has been a prescriptive progress, founded upon a title which might suffice to render all prior matters irrelevant. And while we appreciate that there are problems, particularly in relation to statutory conveyances where there has been no compulsory purchase, and on the particular issue of conveyances by uninfeft proprietors, it is somewhat surprising that none of the respondents has apparently seen it as useful in the course of the proceedings before the Tribunal and this court, to go further in clarifying the immediate pre-registration position, in relation to the various parts of the subjects and the "modern" sequence of titles in relation to each. In any event, for the reasons we have given, questions of possible inaccuracy in the Register and the actual effect of a statutory conveyance or of a disposition by an uninfeft proprietor do not arise for determination at this stage. Although we were addressed as to the complexities of the subjects themselves and their conveyancing history we do not feel that it is for this court, dealing with questions of law and relevancy, to attempt to examine the titles of particular parts of the ground in great detail. If that had to be done then it would be more appropriate for the Lands Tribunal to do it in the first instance, and after an examination of all the material. The Tribunal's decisions would then be subject to appeal in respect of possible error in law.
It appears to us to be quite clear that, as no more than a part of the subjects is said to be the subject of an inaccuracy in the register, the appellants could not be entitled to obtain the "rectification" which they actually seek. If there is an inaccuracy then it appears that the only possible remedy is likely to be a claim for indemnity by the persons, not being the present appellants, entitled to compensation for any loss which they could show they had suffered as a result.