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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Foster v. The Keeper Of The Registers Of Scotland & Anor [2006] ScotCS CSOH_65 (02 May 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_65.html
Cite as: [2006] ScotCS CSOH_65, [2006] CSOH 65

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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:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

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.

 


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