OUTER HOUSE, COURT OF SESSION [2006] CSOH 65 |
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OPINION OF J. GORDON REID, Q.C. F.C.I.Arb. in the Petition of SUSAN FOSTER Petitioner; against THE KEEPER OF THE
REGISTERS OF Respondents: ________________ |
Petitioner: Russell; Simpson & Marwick
First Respondent: O'Carroll; Scottish Executive
Second Respondent: Thomson; Gildeas
2 May 2006
INTRODUCTION
BACKGROUND
[2] The petitioner and the second Respondent, Robert Graham Carson (Mr "Carson") each claim ownership of a small area of ground coloured mauve (the "disputed ground") on a plan produced. Parties were, surprisingly, unable to agree on the size of the disputed ground or on its approximate value. The petitioner and Mr Carson each own adjacent subjects where, as I understand it, they respectively reside. Their respective title to these adjacent subjects is registered in the Land Register. There is no dispute insofar as the entries in the Land Register relate to these adjacent subjects.
[3] The Petition contains a great deal of factual narrative about the dispute between the petitioner and Mr Carson and the communings with the Keeper of the Registers of Scotland (the "Keeper"). Documents, plans, titles and correspondence are referred to in the petition and a large number of productions have been lodged. I was not referred to any of this material in any detail by counsel and it is therefore inappropriate that I should examine it or refer to it save in the briefest summary.
[4] In essence, the petitioner's complaint is that the Keeper, knowing of the dispute with Mr Carson, rejected the petitioner's application to be registered as proprietor of inter alia the disputed ground, accepted Mr Carson's application to be so registered but did not exclude indemnity in relation to the entry showing Mr Carson as proprietor. In doing so, the Keeper did not investigate the dispute and did not properly adjudicate upon it. Both the petitioner and Mr Carson claimed to have been in possession of the disputed ground through their predecessors in title. However, following proceedings in Kirkcudbright Sheriff Court at the instance of Mr Carson, the petitioner was interdicted (ad interim) from encroaching or attempting to occupy the disputed ground. The Sheriff Principal refused an appeal. It is accepted that Mr Carson is in possession of the disputed ground; he is registered as proprietor and indemnity has not been excluded. The chronology of these basic facts appears to be as follows:-
[5] In May 2004 the petitioner
applied to the Keeper for registration in the Land Register of property at
[6] In these circumstances, the petitioner has presented a petition for judicial review. It was originally directed at the Land Certificates issues by the Keeper, but in the course of the hearing, counsel sought and obtained leave to amend the petition to refer instead to the entries in the Register itself rather than the certificates. The petitioner now seeks declarator that (1) "the entries made by the Keeper are ultra vires, unlawful, void and of no effect", and (2) the making of these entries "breach the Petitioner's rights in terms of Article 6(1) and Article 1 of the First Protocol of the ECHR and that by making the entries in the manner complained of the [Keeper] acted contrary to section 6(1) of the Human Rights Act 1998". She also seeks reduction of these entries or some of them. Although expressed in vague terms, even as amended, it is reasonably clear that the declarators and reduction sought relate essentially to the disputed ground.
SUBMISSIONS
(a) Respondents
[7] Counsel
for the Keeper submitted that as Mr Carson was in possession under a title
in respect of which indemnity was not excluded, the petitioner's primary remedy
was rectification, failing which indemnity (Stair Memorial Encyclopaedia of
the Laws of Scotland, Volume 6
(Reissue [Professor Robert Rennie]) paragraph 248). Reference was also
made to the Registration of Title Practice Book paragraph 7.10. The Land Registration (
[8] Counsel also submitted that the orders sought were rectification by another name and to grant these orders would be to circumvent the scheme of the 1979 Act and in particular section 9. He did, however, accept that the Keeper was a public authority for the purposes of Article 6 of the ECHR and that in certain limited circumstances the Keeper's actings were susceptible to judicial review (Miller & Bryce v Keeper of the Registers of Scotland 1997 SLT 1000). In Short's Tr, a judicial review application, the competency of the proceedings was not conceded.
[9] Counsel further submitted that the petitioner's complaints that Mr Carson's Land Certificate was not issued under exclusion of indemnity, that in registering Mr Carson's interest in the disputed ground, the Keeper prejudiced the petitioner's position in the ongoing litigation with Mr Carson, that the Keeper ought to have conducted some form of hearing, and that the Keeper's plans were inaccurate, were all unfounded. The Keeper was obliged to register Mr Carson's interests where the necessary requirements were met (1979 Act sections 4 and 5; Brookfield Developments Ltd v Keeper of the Registers of Scotland 1989 SLT (Lands Tribunal) 105 at 109F; 109L-100B). He simply applied his expertise to the material presented to him. He was not acting judicially. Neighbourhood boundary disputes were not uncommon but these should not be allowed to hold up the statutory process. A challenge to the non-exclusion of indemnity in relation to Mr Carson's title if successful would prejudice Mr Carson as proprietor in possession and was therefore precluded by section 9. Counsel made brief reference to the "human rights" averments, noting the lack of specification in relation to peaceful enjoyment of possession, the absence of reference to proportionality and margin of appreciation. He pointed out, under reference to R (Alconbury Ltd v Secy of State for the Environment 2003 2 AC 295) that the 1979 Act provided a right of appeal to a tribunal with full fact finding jurisdiction.
[10] Counsel for Mr Carson adopted, with one qualification, the Keeper's submissions and made a further submission under reference to Kaur v Singh 1999 SC 180 at 187-189. That qualification related to an averment of the Keeper in Answer 10A that the petitioner could seek rectification before the Lands Tribunal. Counsel submitted that here Mr Carson was the registered proprietor in possession. Section 9 and Kaur made it clear that, in those circumstances, the petitioner's only remedy was indemnity. Section 9 was the only competent means of achieving rectification.
(b) Petitioner
[11] Counsel for the petitioner, Graham Henderson, began by submitting that it was still the function of the court to resolve boundary disputes, and that the Keeper had no authority to adjudicate between competing parties. Faced with two competing titles the Keeper should have demanded more documents, excluded indemnity on Mr Carson's title or awaited the outcome of the litigation. He submitted that it would still be competent for the petitioner to appeal the failure to exclude indemnity in relation to Mr Carson's title. The remedy of reduction sought in this petition would achieve what the Keeper should have done in the first place, namely put the dispute on "hold". The Keeper was duty bound to delay issuing a Land Certificate and making an entry in the Register.
[12] Mr Henderson submitted that there was a conflict between
the Rules of Court and section 25 of the 1979 Act. He accepted the general rule that statutory
appeal procedures should first be pursued. He also accepted that he could challenge in
the Lands Tribunal, the Keeper's non-exclusion of indemnity in relation to Mr Carson's
registered title. He submitted that the
Lands Tribunal could not grant the remedies sought in this petition. He relied on section 25(2) which gave a
right of recourse under "any rule of law"
He referred to Clyde & Edwards, Judicial Review Chapter 12.01, and 12.09, Agnew,
Land Obligations 10.13; the fact that Short's Tr, a judicial review
application, went to the House of Lords, suggests that the present
petition is competent. MRS Hamilton
Ltd v Keeper of the Registers
of Scotland (No. 1) 1999 SLT 829 was a commercial action
for payment; the competency of that action was not in doubt. The same could be said
of Dougbar Properties Ltd v Keeper
of the Registers of Scotland 1999 SC 513. Reference was also made to
[13] Mr Henderson
explained that he sought reduction of the entries in the Land Register so that
the petitioner could litigate in the
DISCUSSION
[14] At the outset of the Hearing, all counsel were agreed that it should be restricted to the question of competency as focussed in the first plea-in-law for each respondent. However, the submissions of counsel tended to stray into wider issues of competency and relevancy. In principle, competency and relevancy are distinct, but in practice, one can shade into the other around the edges.
[15] Stripped to its essentials, this petition for judicial review,
as amended, seeks to set aside entries in the title sheet of certain interests
in land in the Land Register of Scotland established by section 1 of the
Land Registration (
[16] Only if one or more of those limited circumstances apply, may
the Keeper rectify the inaccuracy (section 9(3)(a)). If the Keeper refuses to do so, the court, in
certain specified circumstances, may order him to do so (section 9)3)(b)). None of these
specified and limited circumstances applies here. The petitioner makes no averments to bring herself within the scope of section 9(3). Granting reduction of entries in the title
sheet would be to do what is precluded by the 1979 Act. In the first place, the court cannot, itself, rectify an inaccuracy in the register; it
can only order the Keeper to do so. In
the second place, cancellation of the entry relative to the disputed area of
ground would plainly prejudice Mr Carson who is currently a proprietor in
possession within the meaning of section 9(3); as already noted, the
limited circumstances in which rectification may take place notwithstanding
such prejudice are not and cannot currently be pled
(see Kaur at 182F). The court, therefore, cannot competently
grant the remedy of reduction which the petitioner seeks; the Keeper could not
register such a decree and rectify the register accordingly because the case
does not fall within the limited parameters of section 9(3) (Short's
Tr. 1996 SC(HL) at 21G-H). The declarators sought in the petition are
pointless without the remedy of reduction.
The petition must therefore be dismissed as
incompetent. Mr Henderson did not
seek to support the competency of the petition by reference to any human rights arguments. At the hearing, there was no significant
discussion of any human rights aspects. In these circumstances, I decline to express any opinion on these
matters beyond saying that for aught yet seen, the statutory appeal procedures
set forth in section 25 appear to confer full jurisdiction on the Lands
Tribunal and the court on matters of fact and law in dispute, and with the
provisions for compensation through the Keeper's statutory indemnity, the 1979 Act
appears to be Convention compliant as to substance; and, at least as operated,
as to procedure. In the present
dispute, the Keeper appears to have exchanged views with the petitioner's
advisers on the state of her title.
[17] The petition is not incompetent because it takes the form of an application for judicial review. The Keeper is a public official, whose office has been created by statute (Public Registers and Records (Scotland) Act 1948 section 1; see Millar & Bryce at 1002F), and who performs important administrative functions. His actings and decisions must therefore, in principle, be amenable to judicial review, subject to the general rule relating to the exhausting of available and appropriate statutory remedies. Section 25 does not exclude resort to the court as Short's Tr,. Kaur, MRS Hamilton Ltd and Dougbar illustrate. Rather, this petition is incompetent because of the remedy which the petitioner seeks. The court simply cannot grant that remedy. Whether the petitioner has other remedies open to her which would achieve the desired result I need not dwell upon.
[18] In my opinion, the foregoing view is consistent with the scheme of the 1979 Act and its underlying principles as set forth in Short's Tr, Kaur and MRS Hamilton Ltd. The General Register of Sasines records deeds. The Land Register registers title. The two systems rest upon entirely different principles. The validity of the title conferred by recording in the Sasine Register depends upon the progress of the titles which have preceded it, unless and until it becomes exempt from challenge by the operation of positive prescription. Under the 1979 Act, the real right derives from the act of registering the interest in the Land Register. The Scottish system of land registration is a positive system in which the act of registration creates, varies, transfers or extinguishes a real right. Thus, one of the obvious purposes of the land registration system is to avoid the need to look behind the Land Certificate and examine a large bundle of title deeds which have induced registration in the first place. The land registration system involves a guaranteed title with limited scope for rectification. There is a premium on the accuracy of the title sheet. However, the 1979 Act recognises that inaccuracies occur and makes provision for rectification of the register in defined, limited circumstances only (Short's Tr. At 21C-D), and for indemnity. The circumstances in which rectification is allowed are limited, otherwise titles would lack stability if the register could be rectified too freely. Even the reduction of a deed constituting a title does not, in general, justify rectification (Short's Tr 1996 SC(HL) at 21F-G). Thus, an important general principle is that rectification will not usually be permitted if to do so would prejudice a proprietor in possession. Fraud or carelessness on the part of the proprietor in possession are exceptions to that general principle; a further exception arises where the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2). Where rectification does take place, it does not usually have retrospective effect. This, too accords with the general underlying philosophy that the register reliably discloses the current state of the various registered interests. That philosophy would be undermined if entries could, years after they were made, be declared to have all along been void and cancelled by decree of reduction. Where, however, rectification is unavailable, indemnity may be given in appropriate circumstances.
[19] For completeness, I record that (i) Mr Henderson took no issue with the lengthy citation of authority relating to statutory remedies and judicial review; it is therefore unnecessary, to discuss them further, (ii) although it is unnecessary to reach a concluded view, there is considerable force in the submission that in the present context, the Keeper was not acting judicially, was not bound to conduct any form of hearing or to await the outcome of a boundary dispute between neighbours; the structure of the Act supports these arguments; there is no provision for the making of representations by interested parties, conducting an oral hearing or even a prescribed time limit within which a decision must be made; neither the Land Registration (Scotland) Rules 1980 nor the Registration of Title Practice Book makes provision for these matters, (iii) Mr Henderson was, in my opinion, wrong to accept that he could challenge the Keeper's refusal to exclude indemnity in respect of the disputed ground; such rectification would prejudice Mr Carson as proprietor in possession and would be excluded by section 9(3), thus the petitioner's only remedy as the titles and the state of possession currently stand, is to seek indemnity; I express no opinion on whether such a claim for indemnity would be well founded on a proper analysis of the relevant title deeds, (iv) there is no basis under the 1979 Act requiring the Keeper to put his statutory duties on "hold" pending the outcome of litigation which might endure for years. That would undermine the general principles referred to above and adversely affect the stability and reliability of the Land Register, (v) whether the Lands Tribunal could or could not grant the remedies sought in this petition seems to me to be irrelevant; this court cannot grant them, (vi) I was not addressed in any detail on the correspondence; I decline to embark on an analysis of it without the assistance of counsel, and (vii) I did not find Marshall v Duffy or the cited passage in Agnew, Land Obligations to be of assistance.
DECISION
[20] I conclude that,
on the arguments presented to me, for the reasons given above, this petition is
incompetent. I shall sustain the first
plea-in-law for each respondent, and dismiss the petition, reserving meantime, all
questions of expenses.