Douglas & Angus Estates and Richard John Carmichael v. Thomas Russell McAllister, 6 January 2015 –Whether party seeking removal of another from property required to show title to that property

This is an Inner House case concerning a dispute over property at Rigside in Lanarkshire. Mr McAllister had occupied the land since at least June 2006 (using it for pallet storage and lorry parking). However, Douglas & Angus Estates and Mr Carmichael argued that they were common owners of the property and that Mr McAllister was in occupation of the property without title. Whilst Mr McAllister did not claim to have title to the property himself he argued that the estate and Mr Carmichael did not own the property either (and thus had no title to sue).

The question for the court was whether a party (in this case the estate and Mr Carmichael) requires to establish a title to land where a second party, whom he is trying to remove (in this case Mr McAllister), does not have title but claims that the land may be owned by a third party (in this case, the statutory successors to Lanark County Council).

It was accepted that, where the party being removed denies the title of the party seeking removal without arguing that he himself has title, the party seeking removal only requires to show a prima face title[1]. However, Mr McAllister contended that there is an exception to that rule where the party being removed argues that there is a competing title in favour of a third party[2]. In this case, although he did not produce a competing title, he pointed to a reference to the disputed property in his own title (of a neighbouring property) which stated that, at the time of the deed, the disputed property was thought to be owned by Lanark County Council (which, if true, would have precluded the estate and Mr Carmichael from owning the property in terms of their titles).

However, although the Inner House accepted that, if Mr McAllister had shown a competing title, the estate and Mr Carmichael would have had to establish a title to the disputed property in order to seek Mr McAllister’s removal from it, in this case, the statement in Mr McAllister’s title to the effect that the disputed property was thought to be owned by Lanark County Council was not the equivalent of a competing title. As such, the estate and Mr Carmichael only had to show a prima face title in order to pursue the action.

The court noted that what exactly may be regarded as an ex facie valid title would depend on its particular terms. And, in this case, although the descriptions in the title deeds were vague and unclear, it could not be said that the deed on which both the estate’s and Mr Carmichael’s titles relied did not include the disputed property. Consequently, the estate and Mr Carmichael (or one or other of them) had an ex facie title sufficient to allow them to pursue the action against Mr McAllister.

In those circumstances the Inner House upheld the previous decision of the Sheriff Principal granting decree in favour of the estate and Mr Carmichael and dismissing Mr McAllister’s defences as irrelevant.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.


[1] Ie a title that, “at first sight” or “on the face of it”, appears to be valid.

[2] Lock v Taylor 1976 SLT 238.

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Northern Rock (Asset Management) Plc v. Jane Steel and Bell & Scott, 27 February 2014 – solicitor’s liability to customer’s bank on discharge of security

This is an Outer House case in which Northern Rock sought damages from the solicitor of one of its customers. Headway Caledonian Ltd borrowed sums from Northern Rock to finance the purchase of a Business Park in Hamilton. In return it granted a standard security in favour of Northern Rock. Some years later, Headway’s solicitor sent a draft discharge of the standard security to Northern Rock requesting that it sign and return the document. In the accompanying email, the solicitor stated that the company intended to sell the subjects and redeem the loan. However, that information was incorrect as Headway only intended to sell part of the subjects and to redeem part of the loan. (The reason for the error was unknown.)

Northern Rock (which had not instructed solicitors to act on its behalf in the transaction) relied on the email and granted the discharge of the standard security. The solicitor then registered it in the Land Register. As a result the loan became unsecured. Headway then became insolvent and Northern Rock raised an action for damages against the solicitor and her firm in respect of its losses.

The solicitor argued that the lender was a third party to whom she did not owe a duty of care.

Lord Woolman considered the authorities on liability for economic loss including Midland Bank plc v Cameron, Thom, Peterkin & Duncans[1] in which Lord Jauncey identified four conditions that should normally be present for liability in such cases:


  1. the solicitor must assume responsibility for the advice or information furnished to the third party;
  2. the solicitor must let it be known to the third party expressly or impliedly that he claims, by reason of his calling, to have the requisite skill or knowledge to give the advice or furnish the information;
  3. the third party must have relied upon that advice or information as a matter for which the solicitor has assumed personal responsibility; and
  4. the solicitor must have been aware that the third party was likely so to rely.”

Lord Woolman found that liability in delict[2] could not be decided without hearing the evidence and allowed a proof.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.



[1] 1988 SLT 611, 616D-F

[2] However, Northern Rock’s case based on implied contract was dismissed.

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Stuart Russell and Laura Clark v. Samdup Tenzin, 19 December 2013 – Sheriff’s Discretion as to payment due by landlord in respect of failure to comply with Tenancy Deposit Regulations

Sheriff Court case relating to a landlords’ failure to comply with the Tenancy Deposit (Scotland) Regulations 2011 in respect of a property at 4/6 Admiralty Street in Edinburgh.

The landlords failed to pay a deposit of £750 into an approved tenancy deposit scheme as required by regulation 3 of the 2011 regulations and made deductions from the deposit before returning it to the tenant at the end of the lease. In terms of regulation 10, where the landlord fails to comply with its duty under regulation 3, (following an application by the tenant) the sheriff must order the landlord to make a payment not exceeding 3 times the deposit to the tenant. Following an application from the tenants, the sheriff ordered the landlords to pay the maximum monetary payment of three times the deposit.

The landlords appealed challenging the sheriff’s decision on, what were essentially, 3 grounds:

  1. that the summary application made by the tenants, although made timeously[1], sought declarator (that the landlord had failed to comply with its duties) but not payment (of the deposit/penalty) and was consequently incompetent;
  2. that the sheriff had made an error in allowing an amendment to be made to the summary application outwith the time limit; and
  3. that the sheriff had made an error in the exercising of his discretion as to the amount of the penalty (arguing that the sheriff had given no explanation for exercising his discretion in the way he did).

Summary application
It was implicit in the landlords’ argument that the unamended application was incapable of providing the tenant with a statutory payment (in terms of regulation 10). However, the Sheriff Principal found that the grant of declarator to the effect that a landlord has failed in its duties under regulation 3 is the trigger for a payment under regulation 10. The landlords in this case had admitted their failure to pay the deposit into the statutory scheme which engaged a mandatory requirement on the sheriff to make an order for payment. Whilst it would have been prudent for the tenant to have separately sought an order for payment, the summary application as drafted was sufficient to trigger a payment under regulation 10.[2]

There are no rules as to the approach the sheriff should take in assessing the order and the regulations do not contain matters or criteria which the court must consider. Therefore, in the view of the Sheriff Principal, the sheriff has “complete and unfettered discretion” as to the award to make and an appellate court has little, if any, justification for intervening. Whilst procedural fairness suggests a sheriff must have regard to any mitigation, in this case, no evidence had been led in mitigation and it was difficult to see what effect the mitigation might have had. The Sheriff Principal noted:

“As I have observed the sheriff is entitled to impose any penalty including the maximum to promote compliance with the regulations especially at this early stage in their operation and implementation. I regard this as important. It is clear that the appellants made deductions from the deposit at the end of the tenancy directly contrary to the letter and spirit of the regulations. As the sheriff states – “the very thing which it seems to me this legislation was designed to avoid or at least mitigate.””

 And earlier in the decision she had stated:

“In dealing with non-compliance no distinction has been drawn by the legislators between the careless or devious; the experienced or inexperienced, the culpable or inadvertent. Likewise the strict liability consequences of non-compliance allow the court to promote rigorous application of the regulations pour encourager les autres. In other words deterrence.”

The full judgement is available from Scottish Courts here.

(See appeal to Inner House here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[1] In terms of Regulation 9(2) a summary application must be made not later than 3 months from the end of the tenancy.

[2] After noting that the case did not involve radical incompetence or fundamental change to the tenant’s case which had been made out of time and that the landlords’ were unable to point to prejudice they suffered as a result of the amendment, the Sheriff Principal also rejected the landlords’ challenge relating to the minute of amendment.

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Sustainable Shetland v The Scottish Ministers and Viking Energy Partnership for Judicial Review of a decision of The Scottish Ministers dated 4th April 2012, 3 December 2013 –whether parties can intervene in judicial review proceedings

Inner House case considering whether additional parties (including the Trump Organisation) could intervene in the case of Sustainable Shetland v The Scottish Ministers which concerned the Scottish Government’s decision to grant planning permission for a wind farm on Shetland.

In the Outer House Lady Clark had, in essence, found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity (this finding has become known as “the competency question”). As was noted by the Inner House, the competency question has caused a “degree of consternation” amongst wind farm developers.

The Scottish Minister’s sought to appeal the decision of the Outer House. However, although they have indicated that they wish to maintain environmental arguments, Sustainable Shetland have indicated that they do not wish to maintain an argument based on the competency question.

A variety of parties including the Trump Organisation[1], various wind farm developers and the RSPB then sought to intervene in the proceedings in terms of Rules of Court 58.8(2) (which allows parties directly affected by any issues raised in proceeding to intervene) and 58.8A (which allows parties to intervene in order to raise an issue of public interest).

Rule 58.8(2) – parties directly affected
The Inner house found that Trump and the other wind farm developers could not be said to be directly affected by the issues raised in the proceedings:

 “As a general rule, if a public law decision is challenged, for whatever reason, the range of persons able to enter the process remains limited to those who can show an interest in the outcome of the case; that is to say not in the potential legal reasoning employed by the court in reaching a decision, but in the decision itself. Neither Trump nor AES K2 and the related companies have any interest in the outcome of whether the Shetland windfarm goes ahead.”

Rule 58.8A – issues of public interest
Trump’s application under rule 58.8A also failed. They were not advancing a public interest point. The point which they sought to make was one intended as a protection of their private interests in the marketing of their Menie development.

The Outer House also rejected the RSPB’s application under rule 58.8A noting that, although they had interest in the bird life on the wind farm, they had had the opportunity to intervene in the Outer house proceedings and chose not to do so. Consequently, the Inner House did not consider it appropriate to allow the RSPB to enter the process at the appellate stage under the guise of a public interest intervention. Further, given the positions of Sustainable Shetland and the Scottish Ministers, the court did not consider that any propositions advanced by the RSPB would be likely to assist the court.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[1] Which is judicially reviewing the Scottish Ministers’ decision to grant permission for an offshore wind farm near its golf resort at Menie  (see here) and, after Lady Clark’s decision in Sustainable Shetland  (a summary of which is available here) , added the competency question to its pleadings.

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Trump International Golf Club Scotland Ltd and the Trump Organisation LLC v. The Scottish Ministers and Aberdeen Offshore Windfarm Development Limited, 17 October 2013 – Trump International adopts Sustainable Shetland’s Wind Farm competency argument

Outer House decision concerning Trump International’s challenge to the Scottish Government’s decision to grant permission for an offshore wind farm near its golf resort at Menie in Aberdeenshire. (My blog on some of the issues surrounding the golf resort can be seen here.)

Following the recent decision in Sustainable Shetland v The Scottish Ministers in which Lady Clark came to the conclusion that it was not competent to grant planning permission for a wind farm to persons who were not licence holders or exempt persons[1] under the Electricity Act 1989, Trump International lodged a minute of amendment seeking to add the argument made by Sustainable Shetland (referred to as the “competency question”) to their pleadings. They also sought to have the competency question dealt with before the other issues in the case and referred to the Inner House.

Lord Woolman allowed Trump international to amend their pleadings[2] to include the competency question but, having regard to the potential consequences and effect it might have on the overall delay, refused the motion to detach the competency question from the other issues in the case.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.



[1] I.e. exempt from the requirement (under s4 of 1989 Act) to obtain a licence before generating, transmitting, distributing or supplying electricity.

[2] This was not opposed by the Scottish Ministers.

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Mohammed Ameen Mirza v. Mrs. Fozia Aslam or Salim, 16 May 2013 – damages for wrongful interdict after judicial rectification of document

Outer House case considering the consequences of a judicial rectification of a lease. Mr Mirza was the landlord and Mrs Salim the tenant under a 25 year lease of a shop and yard in Glasgow. Mr Mirza built a shop on the yard. A dispute arose as to who had a real right in the yard and Mrs Salim sought and obtained an interim interdict preventing Mr Mirza from entering the yard and operating the shop in February 2008. However, in August 2009 the Court found that the yard had been included in the lease as the result of a conveyancing error (for which neither of the parties were responsible) and granted a judicial rectification[1] of the lease removing the yard from the leased subjects (the rectification being retrospective in effect). Mr Mirza then sought damages for wrongful interdict.

Mr Mirza’s action was dismissed. After considering the authorities on damages for wrongful interdict, Lord Woolman reached the following conclusions:

  1. interim interdict is obtained periculo petentis (at the risk of the perpetrator);
  2. the award of damages, however, depends upon an assessment of the whole circumstances of the case;
  3. damages will be awarded if the interim interdict is nimious or groundless;
  4. a false statement made by the person obtaining the order is likely to fall into that category;
  5. a person who obtains a possessory judgment that was lawful at the time or pronouncement will not be liable in damages; and
  6. it is not necessary for a pursuer to aver malice or ill will.

Lord Woolman found that, in this case, Mrs Salim had not acted in a way that was “nimious or groundless”. At the time of the action she had had a sure foundation to seek the interdict and in doing so, she had vindicated her right to exclusive possession. Lord Woolman held “that it would be a strong thing” to subject Mrs Mirza to damages taking the view that; “rectification altered the deed and the register, but it did not airbrush history. It did not convert a rightful interdict into a wrongful one”.

The full judgement is available from Scottish Courts here.

(See appeal to the Inner House here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[1] In terms of the Land Registration (Scotland) Act 1979 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

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Linda Mary Gillie v. Scottish Borders Council, 17 May 2013 – Health and safety at work, whether reasonably practicable to prevent school prank

Outer House case in which Mrs Gillie, a janitor at Galashiels Academy, sought damages after slipping on Vaseline on the school stairs and sustaining injuries. Mrs Gillie claimed that the accident had occurred as a result of the Council’s breach of 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992 (which requires that floors and traffic routes in workplaces are kept free from obstructions or substances which may cause a person to slip, trip or fall).

The Council accepted that in all probability the Vaseline had got on the stairs as the result of a prank by sixth formers at the school on what had become a traditional “prank day” on the pupils’ last day at school before study leave. However, the Council argued that they were not liable to Mrs Gillie as it was not reasonably practicable for them to keep the stair free from substances put there as part of a prank.

After considering the authorities on what was reasonably practicable, Lord Boyd noted the following:

  1. it was for the Council to establish that it was not reasonably practicable to keep the stair free from the substance upon which Mrs Gillie slipped;
  2. the assessment of what is reasonably practicable involves a balancing exercise putting on one side the degree or quantum of risk against the sacrifice in terms of loss of money, time or trouble; and
  3. in the assessment of what is reasonably practicable it is relevant to consider whether or not the incidence and nature of the risk was reasonably foreseeable.

Lord Boyd found in favour of the Council. Although the placing or dropping of Vaseline on the stairs risks serious injury, the foreseeability of such an event occurring, as opposed to any other “prank”, was very low indeed. Against that, the time and resources that would have been required to eliminate that risk over and above the measures that the Council had already taken[1], was disproportionate to the risk. Accordingly, in all the circumstances, Lord Boyd was satisfied that it was not reasonably practicable for the Council to ensure that the stair was kept free of Vaseline.

The full judgement is available from Scottish Courts here.



[1] The Court heard evidence that the school had identified the problem with prank day and instituted a series of measures to address the issue (including a social education programme and arranging a school trip to take place on the traditional prank day).

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Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, 9 April 2013 – adjudication contrary to human rights

Outer House case in which Whyte and Mackay sought to enforce an adjudicator’s decision requiring Blyth & Blyth to pay them almost £3m in damages.

Blyth & Blyth had designed the structure of a new bottling plant at Whyte and Mackay’s Grangemouth premises. Whyte and Mackay claimed that the foundations were defective and would result in settlement and damage to the building. They referred the resulting dispute to an adjudicator (as they were entitled to do in terms of the contract between the parties)[1].

When Whyte and Mackay sought to enforce the adjudicator’s decision in the Court of Session, Blyth & Blyth argued that the adjudicator had failed to give adequate reasons for his determination and that to enforce the decision was incompatible with Blyth & Blyth’s rights under the European Convention on Human Rights.

Reasons for the decision
Lord Malcolm found that the adjudicator had failed to give adequate reasons for his determination as he had failed to deal with Blyth & Blyth’s contention that, even if the additional piling deemed necessary to make the foundations adequate had been specified in their design, Whyte and Mackay would not have been prepared to pay the additional time and financial costs required to carry out the extra work. This was potentially a complete answer to the claim and a very significant omission from the adjudicator’s decision. As such, it was sufficient to justify reduction of the award.

Human Rights
Arguably of more importance, however, was Lord Malcolm’s finding that to enforce the adjudicator’s award would be a disproportionate interference with Blyth and Blyth’s right to their possessions under article 1 of the first protocol to the Convention on Human Rights.  Lord Malcolm observed that adjudication is a “rough and ready” process which is “designed to provide a speedy and relatively cheap provisional award pending a final determination by litigation, arbitration or agreement”; the “rough and ready” aspect being particularly true in large and relatively complicated cases such as this one. He also noted judicial concerns as to whether difficult questions of law should be referred to adjudication. Whilst a court, in the face of a Convention challenge, will usually be able to justify enforcement of an adjudicator’s award on the basis of the general interest benefits arising from adjudication (e.g. speed, cost, efficiency and cash-flow requirements), this was a case where such benefits were largely, if not entirely absent. No general or public interest had been served by Whyte and Mackay taking the dispute to adjudication (it would be many years until the cost savings gained by the absence of piling would be outweighed by the projected losses and the bulk of the claimed losses would not occur until 2035/6).

In coming to this conclusion, Lord Malcolm also dismissed Whyte and Mackay’s argument that a decision not to enforce the adjudicator’s award on the basis of article 1 of the first protocol would undermine the whole adjudication scheme, finding such a contention to be “exaggerated and unconvincing”.

A further challenge to the award under article 6 of the Convention (the right to a fair hearing) was rejected on the basis that article 6 is only engaged when a civil right or obligation is being determined and an adjudication cannot be regarded as a final determination of the right or obligation at stake.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[1] If the contract had not so provided, they would, in any event have been entitled to do so under and in terms of the Housing Grants, Construction and Regeneration Act 1996.

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Protected: Niall Jervis Coll Livingstone or Bachuil v Yorick Paine and another, 12 October 2012 -servitude, res judicata, personal bar and tenant’s title

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