James Braes V. The Keeper Of The Registers Of Scotland
| Jurisdiction | Scotland |
| Judge | M.G. Thomson, Q.C. |
| Neutral Citation | [2009] CSOH 176 |
| Court | Court of Session |
| Published date | 30 December 2009 |
| Year | 2009 |
| Docket Number | A764/06 |
| Date | 30 December 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 176 | |
| A764/06 | OPINION OF M.G. THOMSON QC (Sitting as Temporary Judge) in the cause JAMES BRAES Pursuer; against THE KEEPER OF THE REGISTERS OF SCOTLAND Defender: ________________ |
Pursuer: Dewar QC; Gavin MacColl; Russel & Aitken LLP
Defender: Johnston QC; Sheldon; Office of the Solicitor to the Scottish Executive
30 December 2009
[1] In this action the pursuer, an individual, seeks various remedies against the Keeper of the Registers of Scotland ("the Keeper") arising from the alleged failure of the latter to enter details of an alleged right of pre-emption in the burdens section of title sheet FFE12758 in the Land Register of Scotland ("the Register"). The pursuer avers three bases for the remedies which he seeks. First, he maintains that correspondence between solicitors on his behalf and the Keeper concerning his claim contains an unequivocal, enforceable promise by the Keeper to indemnify him in respect of the losses which he claims to have suffered. Secondly, the pursuer claims that the Keeper is personally barred from asserting; (a) that the right of pre-emption was not a real right which should have been entered in the Register, and (b) that he is not liable to indemnify the pursuer for his losses and expenses. Thirdly, and alternatively, the pursuer avers that the Keeper owed him a common law duty of care in the performance of his duties under the Land Registration (Scotland) Act 1979 ("the 1979 Act"), which duty he breached, thereby entitling the pursuer to a remedy at common law. For reasons that will become apparent, the pursuer does not seek indemnification under section 12 of the 1979 Act.
[2] The case came before me on the Procedure Roll when the defender's plea of no title to sue and his general and specific relevancy pleas were debated. The pursuer sought a Proof Before Answer.
The Background Facts
[3] The background facts emerge from the pursuer's pleadings which incorporate by reference the terms of a number of significant documents. The starting point is a disposition ("the 1982 disposition") by the pursuer in favour of the National Coal Board ("the NCB") of subjects extending to 13.81 acres ("Parcel A"). In the 1982 disposition the pursuer is designed as "James Braes, Farmer, residing at Bordie Farm, Kincardine-on-Forth, heritable proprietor of the subjects hereinafter disponed". Parcel A is described as:
"ALL and WHOLE that area or piece of ground extending to [13.81 acres] or thereby forming part of the farm and lands of Crockmuirhall in the Parish of Tulliallan and County of Fife being the subjects shown delineated and outlined in red on the plan thereof annexed and signed as relative hereto: Together with......: Which subjects hereby disponed form part and portion of ALL and WHOLE the said farm and lands of Crockmuirhall in the said Parish and County being the subjects (under exceptions) described in and shown delineated and outlined in red on the plan thereof annexed and signed as relative to Disposition by the Trustees of James Todd Russell and the Trustee of Mrs. Helena White or Russell in favour of Mrs Margaret Helen Monteith Russell or Fisher [dated and recorded in April 1976]".
The pursuer had obtained title inter alia to Parcel A from the said Mrs Margaret Fisher by disposition ("the 1976 disposition") dated the day after that disposition in her favour.
[4] The 1982 disposition sets out various existing burdens and then sets out a new one:
"AND ALSO WITH AND UNDER the following right of pre-emption which is hereby created a real lien and burden upon and affecting the subjects hereinbefore disponed and is to be validly set out or referred to in all future deeds and documents of or relating to the said subjects or any part thereof under pain of nullity, namely: - my said disponees are prohibited from selling or otherwise disposing of the subjects hereinbefore disponed or any part of the said subjects (other than to Coal Industry Estates Limited or any other subsidiary company of my said disponees or to any body possessing powers of compulsory acquisition) without first having offered to sell the said subjects or said part of the said subjects to me or my first successor as proprietor of Bordie Farm, Kincardine, at a price equal to the current open market value of the subjects or part thereof as determined, failing agreement, by an arbiter appointed,.....declaring however that the said offer to sell shall only remain open for acceptance within twenty-one days of me or my foresaid receiving the same and will be subject to the following further conditions: (One) I or my successor as aforesaid shall accept the said subjects or such part thereof in the condition in which they may then be and will discharge my said disponees of any claim competent to me under statute or otherwise in respect of or as a result of the occupation and use of the said subjects or part thereof by my said disponees for the tipping of colliery waste material and/or other operations and any activities ancillary thereto and their restoration by my said disponees and the contractors, agents and representatives and I or my successor as aforesaid shall undertake not to make any claims for compensation under statute or otherwise arising in any way in respect of or as a result of such occupation and use of the said subjects or part thereof and shall free, relieve and indemnify my said disponees from all claims for compensation which may arise under statute or otherwise in any way in respect of or as a result of such occupation and use of the said subjects;.....(Three) The whole minerals will be reserved to my said disponees with power to work the same and adjoining minerals and to lower the surface without any responsibility for damage to the surface or buildings erected or to be erected thereon or any loss whatsoever subject however to the provisions of the Coal Mining (Subsidence) Act 1957 all as more fully narrated in the Mineral Reservation Clause set out in the Schedule annexed and signed as relative hereto, which clause will be incorporated in any conveyance by my said disponees in favour of me or my foresaids and will be created a real burden in favour of the minerals and any adjoining lands belonging to my said disponees; further declaring that the said right of pre-emption hereby created shall be available on one occasion only:".
[5] The mineral reservation clause was duly attached and contained detailed provisions. The essential part of the clause was in the following terms:
"THERE ARE EXCEPTED from said area of ground the whole mines, metals and minerals therein so far as not belonging to us with the whole rights, powers, privileges and pertinents effeiring thereto; AND THERE ARE RESERVED the whole mines, metals and minerals (including without prejudice to the said generality the whole coal, shale, blaes, fireclay and other clay, ironstone, freestone, limestone, slate, sand, gravel, stone and all petroleum) now or hereafter vested in or belonging to us or in which we have any interest within the said area of ground (all hereinafter referred to as "the minerals") with full power to us by ourselves and/or licensees, tenants, assignees, or others having our authority, to do everything necessary for the purposes of searching for, winning, working, cleaning, calcining, treating, manufacturing, storing, carrying away and disposing of the same and also minerals from adjoining or neighbouring lands (including without prejudice to said generality all rights competent to us under Section 15 of the Coal Act 1938) but so as not to enter upon the surface of the said area of ground: AND with power to us and our foresaids to lower the surface of the said area of ground and any building structure or works now or hereafter erected constructed or placed thereon or therein by the working of the minerals or of adjoining or neighbouring minerals, and that by any system or systems of working whether or not involving total excavation:...."
[6] In terms of the 1976 disposition Mrs Margaret Fisher conveyed to "James Braes, Farmer, Bordie Farm, Kincardine-on-Forth", "ALL and WHOLE that part of the farm and lands of Crockmuirhall in the Parish of Tulliallan and County of Fife described in and shown delineated and outlined in red on the plan thereof annexed and signed as relative to Disposition by the Trustees of James Todd Russell and the Trustees of Mrs Helena White or Russell in my favour [dated and recorded in April 1976]". This was the same plan and the same disposition as were later referred to in the 1982 disposition. The 1976 disposition contains no stated area of the subjects being conveyed. It is not apparent from the terms of the 1976 and 1982 dispositions that the subjects conveyed in 1982 by the pursuer were less than those conveyed to him in 1976, but that is what the pursuer avers. I shall accordingly refer to the balance of the land conveyed to the pursuer in 1976 remaining after the disposition granted by him in 1982 as "Parcel B".
[7] The pursuer avers that in 1982 he and his parents were in partnership together in the firm of H & J Braes ("the partnership"). At that time the partnership was the tenant of "other lands at Bordie Farm" ("Parcel C"). Parcel C was disponed to the partnership by the NCB in January 1986. That disposition ("the 1986 disposition") designed the partnership as "Farmers, carrying on business at Bordie Farm, Kincardine-on-Forth" and the pursuer as "Farmer, residing at Caverns Farm, Kincardine-on-Forth" and conveyed to the partners of the partnership as trustees therefor:
"ALL and WHOLE the lands and farm of Bordie in the Parish of Culross, the Dunfermline District and the Fife Region and in the County of Fife extending to [156.05 acres] or thereby including areas occupied by buildings and roads all as comprising the two areas of ground delineated and outlined in red on the plan annexed and executed as relative hereto;".
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