Scottish Court of Session Decisions

Introductory

[1] This action by the pursuers seeking declarator, interdict and certain orders against the defenders is the latest instalment of a persistent series of litigations in which the pursuers have been involved since at least 1995. These litigations have all involved the harbours at Greenock and in particular the ownership of lands comprised within the registered titles REN 42086 and REN 43834. There are proprietors in possession under these registered titles who are not the defenders. The pursuers as individuals have no right, title or interest to sue in their own name for any rectification of these titles. The present action would appear to be an attempt by the pursuers to extract some cause of action from certain parts of the decision of the Inner House in Wilson v The Keeper of the Registers of Scotland 2000 S.L.T. 267.

[2] Having been informed by the Inner House that on their reading of the situation it was clear that because only part of the subjects in the said registered titles were said to be the subject of an inaccuracy in the register, the appellants in that case, the pursuers in the present, could not be entitled to obtain the rectification which they sought. If there is an inaccuracy, they were told then the only possible remedy was likely to be a claim for indemnity by the persons, not being the then appellants, entitled to compensation for any loss which they could show they had suffered as a result. The pursuers, however, now say that that all and not just part of the subjects were held by the "1772 trustees" and so sought to demonstrate to me by an extensive survey of the old titles to all the parcels of land within the two registered titles that rectification, (as opposed to indemnity) would be possible. They have failed so to demonstrate.

[3] It was stated to the Court by the pursuers in this action that there was no need to hold a proof on the matters pled but that the whole facts relevant to the case could be derived from the documents produced, being titles and statutes, which were incorporated in the pleadings brevitatis causa. Accordingly the defenders sought dismissal of the action and the pursuers sought decree de plano.

Essential Basis of the Pursuers' Case

[4] The pursuers, (as in the preceding actions), have in this action, their starting point at a Feu Charter of 1772. Be it noted at the outset that that document was a feu charter in which it was provided that feu duties be paid to the superior; it does not on the face of it bear to be a trust deed. The pursuers aver that it is a trust. Furthermore, they also claim that other lands later acquired by the magistrates and councillors of the Burgh of Greenock fell into the alleged trust which they say was created by the 1772 Feu Charter. These "additional" lands are referred to in Conclusion 2.

[5] The lands which were acquired by the magistrates and councillors of Greenock under the said feu charter were of limited extent. They comprise only part of the lands in each of the land registration certificates under consideration. The pursuers said that Burgh funds were expended to acquire the further lands which they say were taken into the trust and are included in the land registration certificates. These funds included the proceeds of a tax levied at one time of one penny per pint of ale consumed in the Burgh (whether by residents, visitors or bona fide travellers). Thus, the pursuers said, these lands also form part of the "trust" they say was created. In that way they allege that the titles produced indicate, as does a map they provided to the Court, that all the lands in the registered titles were "trust lands".

[6] Therein lies one of the fallacies underlying the pursuers' case. It is only the 1772 Feu Charter, the salient feature of which is quoted below, which contains any provision which could prevent alienation. Further and in any event the additional lands were acquired by harbour trustees established by the Act 13 GIII, 1773, cp 28. They were not acquired by the magistrates acting as "trustees" under the 1772 Feu Charter. As an example, the feu charter by Lord Cathcart registered 31^st March 1819 in favour of certain baillies and councillors of Greenock, named specifically, conveyed lands to those councillors as harbour trustees and contains no clause restricting those trustees in their dealings with the land. It also provided for feu duties to be paid but said that non-payment would not nullify the deed.

The 1772 Feu Charter

[7] This document has featured in the case Scottish Enterprise & Others v Kenneth Ferguson & Others, 6^th June 1996 (unreported), a decision by Lord Macfadyen. It featured in the Lands Tribunal Appeal against a decision of the Keeper not to rectify the land certificates in question and was there the subject of extensive consideration by R. E. Edwards, W.S., sitting as a tribunal and again the in the appeal to the Inner House from him, Wilson v The Keeper 2000 S.L.T. 267 above noted. It is necessary to quote yet again the substance of that deed.

By that feu contract John Shaw Stewart disponed the subjects specified therein

The subjects were described as:

The disponees were given specific power

There followed a provision in the following terms:

It should be noted that in Wilson v The Keeper it was said at 269H

Having seen that 1819 document and noted its provisions above, that matter said not to be in dispute before the Inner House was incorrectly conceded in that the grantees who became infeft in the adjacent subjects were the harbour trustees acting under statutory authority and not magistrates acting under any trust constituted by the 1772 Feu Charter. That view was reinforced by a provision of the legislation in 1913 which was founded upon by the pursuers but which exempted only the 1772 charter from the Greenock Port and Harbour Consolidation Act by s. 212 and none of the view other titles. It follows that any conveyances of acquired land cannot be challenged by virtue of the 1772 "trust".

[8] The defenders presented three main contentions at debate. The first was that since Conclusion 4 was bound to fail, the other conclusions were academic and could have no practical result and accordingly the action should be dismissed. Second, that there were no relevant averments that the lands held in "trust" extend to the subjects held under the two land certificates and since the present action was predicted on that fact, it was irrelevant. Third, that there were in any event no relevant averments of a trust. I deal with each of these in turn along with the pursuers' response thereto so far as I can deduce that from the pursuers' address to the Court.

(i) The claim that rectification could not succeed.

The real point of the action said the defenders, was that it enabled the pursuers to apply to have the register rectified by attempting to get "trust property" back into the "trust" there is no property in the trust, the subjects of the 1772 Charter are no longer in the trust. There is no other "trust" property. The subjects are held absolutely by other proprietors under the two registered titles. The stated object of Conclusion 4 is to have the register rectified to substitute for the present proprietors in possession other parties i.e. the defenders. The pursuers' contention is that the predecessors of Inverclyde Council became infeft by virtue of the feu contract which is also a trust deed and that by 1845 the original Burgh Councillors or the Town Council were (a) infeft on the subjects and (b) infeft on the subjects as trustees and that everything that has happened since 1845 is null and void. The pursuers are bound to fail not only because they seek to have the Court ordain trustees to do some positive act which would be within the discretion of the trustees, but also because there is nothing in their averments which could invoke section 9(3) of the Land Registration (Scotland) Act 1979. Sub-section (3) provides that if rectification by the Keeper of an inaccuracy in the Register under sub-section (1) of section 9 would prejudice a proprietor in possession - (a) the Keeper may exercise his power to rectify only where - (i) the purpose of the rectification is to note an overriding interest or to correct any information on the Register relating to an overriding interest ... (iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession. Since there is a proprietor in possession and there is no overriding interest and the pursuers have not sought to establish any fraud, rectification could only be had if there had been carelessness of the proprietor in possession. There are no such averments.

[9] The pursuers whole case was predicated on two matters. Firstly, that the original Council was infeft and, secondly, that it took land in trust and that its landownership extended to the whole of the lands under the certificate. The latter is patently not the case. Under reference to Wilson v The Keeper and the discussion therein, on no view could the lands under the 1772 Charter be said to comprehend all of the lands in the two certificates. In Wilson v The Keeper it had been conceded (275C) that the alleged inaccuracies did not affect all the land described in the land certificates.

[10] The pursuers had been told by the Inner House (276C-F) that it would 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. Furthermore, it was said that there would require to be material indicating that the solicitors acting for the proprietors in possession departed from usual and normal professional practice.

[11] Finally, it was said:

For these reasons, there being no carelessness specified, even if the defenders could be compelled to act in terms of conclusion 4 and given that they wished to do so since there were different grantees in 1772 and in the subsequent conveyances, it is only part of the subjects which are affected and rectification could not be achieved by the defenders even if they were to seek to have lands restored to the "trust".

Response by pursuers

[12] The pursuers, as they did in the previous litigations, attempted to construct their entire contentions on the basis of the 1772 Feu Charter. Their contentions were no different from those advanced to the Inner House and narrated by the Court in Wilson v The Keeper at pages 270I to 271E. Their principal approach was that they were seeking the declarator in conclusion 1 so that the trustees could apply for rectification of the Register. No argument however was presented specifically directed to the formidable difficulties facing the trustees in obtaining that result, nor was it suggested how it would be possible or appropriate for the defenders as "trustees" at this stage, to obtain title to heritable property within the registered titles and alter that registered title of parts of it instead of any other remedy which they might have such as an indemnity.

(ii) Irrelevance of averments relating to extent property.

There were, said the defenders, no relevant averments either particularly pled or incorporated by reference, which could establish that the property allegedly held in trust extended to the land under the two land certificates. It is essential that the pursuers should aver that the property to which they seek to have the defenders infeft extends to the whole property under the land certificates. If it does not, there are no relevant averments for rectification.

Response by pursuers

[13] Because the further lands were required for the purposes of the harbour by the Magistrates they became subsumed into the 1772 trust whether or not it was conveyed to them as harbour trustees. The harbour trustees it was said owned no land. It was all vested in the Magistrates who were already in place as land owners and accordingly the Magistrates and trustees under the 1772 Feu Charter owned the whole land in the certificates, albeit it was acquired from time to time over the course of the next century.

(iii) That there is no trust

[14] The defenders argued that the conveyance in 1772, a feu charter, conveyed lands into the common good of the burgh. Lands were conveyed for the use and behoof of the community, a common characteristic of such a disposition. The contract did not expressly state if the lands were disponed in trust and there was nowhere any express reference to such purposes as one would expect in a formal deed constituting a trust, see MacDougall's Trustees v Lord Advocate 1952 S.C. 260 at page 269. It was accepted that the contract did contain language which might be associated with a trust in that there was a prohibition on alienation. However, the common good may be unalienable, Green's Encyclopaedia 2 paras 1250-1258 and Cockenzie & Port Seton Community Council v East Lothian District Council 1997 S.L.T. 81. The words "use and behoof of" are consistent with the property within common good and mirror words in the encyclopaedia. Further, the express prohibition on alienation and the type of property involved i.e. the harbour and right to levy tolls for the use and behoof of the community all pointed to a common good. There is presumption in favour of the land conveyed into a burgh forming part of the common good of the burgh. Common good property is not a trust.

Response by pursuers

[15] Since the grantees of the 1772 Feu Charter were prohibited from alienation and were therefore not free to deal with the property but required to hold it and the revenues therefrom for the use and behoof of the community all the characteristics of a trust were present. There was no need to specify purposes since the purpose was simply to benefit the community. The pursuers went on to assert that the people of Greenock still owned the land although it was now vested in the trustees. The present electorate of Inverclyde are trustees, it was said, because they elect trustees who look after their property. There were purposes in that the respects in which the community was to benefit were sufficiently specified. Payment of a feu duty did not prevent the grantees holding the heritage in trust and the local tax levied was to assist these trustees to pay for the obligations they undertook towards the grantor.

Conclusions

[16] In my opinion the contention of the defenders that there is no relevant averment of any way in which they could either be obliged to participate in or succeed in a litigation designed to rectify the Register to restore the lands under the 1772 Charter to the "trustees" is correct: An attempt to have the register rectified in the way sought is bound to fail not only for the reasons given in Wilson v The Keeper which itself followed the guidance given by the House of Lords in relation to rectification in Short's Trustee v The Keeper 1996 S.C.(H.L.) 14, but also because there is no competent process whereby, in a summons for declarator, an order can be made compelling trustees to seek rectification of the Register or to lend a name to an action by the beneficiaries, whoever they may be, for rectification. Conclusion 4 proceeds in my view upon a total misunderstanding of what was said in Inland Revenue v Clark's Trustees 1939 S.C. at page 22 which deals with the proposition that a beneficiary may compel trustees to give the use of their name or grant an assignation of a claim against a third party. This is not such a case. Further, and in particular, there is no indication of any carelessness of the proprietor in possession which is a pre-requisite for any such rectification. Although it was said by the Inner House and is indeed obvious that if anyone had a title to seek a rectification it must be these defenders, there is in my view no indication in this action or in the dicta of the Inner House of any way in which that action could be responsibly undertaken let alone succeed. Rectification is a rare remedy. It was the intention, in my view, of the provisions for registration of title that the entry once made in the Register would not be altered and that a remedy lay only in damages unless in the exceptional circumstances specified in the Act of fraud or carelessness of the proprietor in possession. A further matter noted by the Inner House was that the present situation is not an actio popularis in the sense discussed by Lord Clyde in Scottish Old People's Welfare Council, petitioners, 1987 S.L.T. at page 184I. Such an action would bind third parties. In the present case the pursuers who allege they are beneficiaries, albeit not residing in the old burgh of Greenock, might not attract the support of the other ratepayers in embarking upon the course of action the pursuers are inviting the Court to order.

[17] I agree with the defenders that the sole and only purpose of the present action is to transfer title from the present proprietors in possession to the defenders and if that is impossible the action is pointless. It is in my view impossible.

[18] The declarator sought in terms of the first conclusion apart from the manifest pleading problems in pronouncing any interlocutor in terms of Conclusion 1 could in any event not be granted. In terms it describes "a public trust" in a trust deed and it also seeks declarator that the pursuers forming part of the community of Inverclyde are beneficiaries of that trust which was set up, if it were, for the then community of Greenock. It is not active and it has no property. It can never have the property in question and accordingly that part of the action is in the truest sense an academic exercise and declarator could and should not be granted, even if, as a pursuer requires to set out the declarator sought was clear and in ambiguous terms.

[19] I also was persuaded that the defenders were correct in their second contention. There are no relevant averments either in the condescendence or in the writs produced to indicate, (contrary to the position adopted until the present litigation) that the defenders or anyone else are trustees who are or should be proprietors of the whole lands under the two registered titles. That deficiency of itself would be sufficient to have the action, as presently framed, dismissed, but when in addition one has regard to inevitable failure of the fourth conclusion I have no hesitation in finding the defenders' arguments to be correct. On the averments and titles produced there is no defect in the prescriptive title held by the proprietors in possession because of the statutory conveyances to their antecedents. In any event there could be no challenge to title conveyed within lands outwith the 1772 deed.

[20] So far as the defenders' argument about whether a trust existed because of the terms of the said deed, I am more hesitant but consider that the defenders' contention is correct. The purpose of the 1772 Charter was to provide not only land but also revenues which could be used for the benefit of the community in no particularly specified way other than that the primary purpose was to improve the harbour and accordingly the general prosperity. There is no reason why common good property should or should not be inalienable and it is not necessary for the furtherance of the interests of the burgh that a trust should be created. Indeed at the time of the feu charter there were so many restrictions and qualifications attached to trusts and the actings of trustees at common law that to call the feu charter a trust might well have hindered the purpose of both granter and grantee of enhancing the economic welfare of the burgh. There would, for example, have been difficulties in such trustees investing in heritage or conducting business. In my opinion what was done by the feu charter sits more comfortably with the notion that the property in question was conveyed to the Magistrates into and for the common good subject to the restrictions in the conveyance itself about alienation. That did not constitute any trust; it was merely a condition of the gift.

[21] The action accordingly must be dismissed.

[22] I should only add that the pursuers claimed that the defences were irrelevant. This contention was part and parcel of the contention that the defenders had made no relevant answer to the assertion that they were trustees. Since in my view they have a complete answer to that assertion it follows that the attack on the relevancy of the defences was in any event bound to fail. I shall accordingly sustain the second plea-in-law for the defenders and dismiss the action.