Susan Foster V. The Keeper Of The Registers Of Scotland And Another
| Jurisdiction | Scotland |
| Judge | J. Gordon Reid, Q.C. |
| Neutral Citation | [2006] CSOH 65 |
| Date | 02 May 2006 |
| Court | Court of Session |
| Published date | 02 May 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 65 | |
| 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: ________________ |
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...
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