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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 SCOTLAND
AND ANOTHER
Respondents:
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Russell; Simpson & Marwick
First Respondent: O'Carroll; Scottish Executive
Second Respondent: Thomson; Gildeas
2 May 2006
INTRODUCTION
[1] This
First Hearing, which took place on 2 and 3 March 2006, raises the question
whether an entry in a title sheet in the Land Register of Scotland, may
competently be reduced in Judicial Review proceedings.
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 Old
Ford Road, Gatehouse of Fleet; the application
included the disputed ground. Mr Carson
acquired adjacent property at Swan Street,
Gatehouse of Fleet, and took entry on 15 June
2004. He applied for
registration. His application included
the disputed ground. The Keeper was
aware that there was a dispute between the petitioner and Mr Carson as to
who was the true owner of the disputed ground.
He corresponded with both of them.
Overall, the tenor of the correspondence is that the Keeper is of the
view that the Petitioner's title is not habile to include the disputed
ground. On 10 March 2005, the Sheriff at Kirkcudbright granted
interim interdict against the Petitioner from encroaching or attempting
to occupy the disputed ground. By letter
dated 11 March 2005,
to the petitioner's solicitors, the Keeper stated that he had no authority to
adjudicate between the parties. In a
further letter to the petitioner's solicitors, the Keeper raised the question
of court proceedings and rectification.
On or about 21 March 2005 the Keeper issued a Land Certificate in
favour of the petitioner; the disputed ground was not included. On or about 7 April 2005, the Keeper
issued a Land Certificate in Mr Carson's favour which included the
disputed ground. Indemnity was not excluded. On 11 May 2005, the Sheriff
Principal refused an appeal against the grant of interim interdict. From article nine of
the Statement of Facts it appears that further discussion with the Keeper
ensued including discussion about the accuracy of the title plans. It is averred by the
Petitioner that on 22 August 2005,
the Keeper issued a further updated plan "in respect of each of the subjects
which form part of this dispute".
Thereafter, following discussions which according to the Petitioner,
excluded her, further
revised Land Certificates with revised Title Plans were issued. The Petitioner makes averments criticising
the scaling of these plans, but how all this relates to the few productions on
which I was addressed is unclear. The petitioner's averments are not easy to
follow and their significance is not immediately apparent. No explanation of this aspect of the
background was tendered in the course of the
submissions of counsel.
[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 (Scotland)
Act 1979 did not permit the Keeper to resolve disputes between
parties. Nor is the Keeper obliged to
await the outcome of such a dispute.
Here, the petitioner has not applied to the Keeper for rectification;
nor has he appealed to the Lands Tribunal for Scotland
under section 25 of the 1979 Act.
However, given that Mr Carson is in possession, rectification could
not here be ordered (1979 Act, section 9(3)(b)). The petitioner would have to seek indemnity
for any loss (1979 Act section 12(1)(b)); if the Keeper refused to grant indemnity, the
petitioner had full rights of appeal on fact and law (section 25 of the 1979 Act)
which are Convention compliant. Judicial
review was not open to the petitioner.
The Rules of Court (RC 58(3)(2)) excluded
judicial review because an appeal could have been and still can be taken under
the 1979 Act. That rule embodied
the common law. Counsel referred to Magistrates
of Portobello v Magistrates of
Edinburgh (1882) 10 R 130 at 137, British Railways Board v
Glasgow Corporation 1976 SC 224 at 237, Oneill v SJNCTS 197
SLT 648 at 65 Harvey's Tr v Harvey 1942 SC 582,
Bell v Fiddes 1996 SLT (Notes) 51, Saunders
v Royal Insurance plc 1999 SC 564 at 566-7. There were no special circumstances justifying
departure from the rule or rendering the statutory procedures inapplicable (Fraser v M'Neill 1948 SC 517 at 523-4, JC Black Ltd v Alltransport
Inter. Group Ltd 1980 SC 57,
Riverforce Finance Ltd v Kelly 1991
SLT 300, R v Chief Constable of the Merseyside
Police 1986 2 WLR 144). Safeway Stores PLC v Tesco Stores Ltd 2004 SC 29 and MRS Hamilton
Ltd v Keeper of the Registers
of Scotland 2000 SC 271 were examples of the working
through of the statutory procedure under the 1979 Act. Reduction would, in any
event, serve no useful purpose (Short's Tr v Keeper of the Registers of Scotland 1994 SC 122,
1996 SC (HL) 14).
[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 Marshall v Duffy 8/3/02 unreported, Lord Philip.
[13] Mr Henderson
explained that he sought reduction of the entries in the Land Register so that
the petitioner could litigate in the Sheriff Court. The complaints in the petition related to the
administrative activities of the Keeper, and the exercise of his discretion. Reference was made to two letters, one
dated 11/3/05 [6/18/2 of process], the other
dated 14/3/05 [6/18 of
process]. Mr Henderson made no
submissions on the human rights aspects
of the petition beyond suggesting that these could be
developed in the course of adjustment of the pleadings.
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 (Scotland)
Act 1979. The remedy of reduction
is a competent remedy in a judicial review application. The effect of reduction in the present
context would be to rectify, by cancelling, the entries in the title sheet, and
in particular, the entry in the title sheet in Mr Carson's
name relating to the disputed ground. As
matters presently stand, Mr Carson is the registered proprietor in
possession of the disputed area of ground.
Section 9 of the 1979 Act prescribes the limited circumstances
in which an inaccuracy in the register may be rectified by
the Keeper by insertion, amendment and/or cancellation of anything
therein, where such rectification would prejudice a proprietor in
possession. Mr Carson is such a
proprietor in possession.
[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.
