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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Nimmo Smith
Lord Reed
Lord Penrose
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[2008] CSIH 25
XA113/07
OPINION OF THE COURT
delivered by LORD
NIMMO SMITH
in
APPEAL
from the Sheriffdom of
Tayside, Central and Fife at Stirling
in the cause
LESLIE STUART MALKIN and
ANOTHER
Pursuers and Appellants;
against
MARK GIBSON
Defender and Respondent:
_______
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Act: Hawkes; Russel + Aitken LLP
(for Miller Samuel, Solicitors, Glasgow)
Alt: A McKay; Drummond Miller
LLP (for Muirhead Buchanan, Solicitors, Stirling)
13 March 2008
Introduction
[1] This action
relates to a boundary dispute between the proprietors of neighbouring subjects
at Blanefield, Stirlingshire. The
pursuers' subjects are called Auchineden Mill, and the defender's subjects are
called Edenmill Farm. Each of them
claims to own a strip of ground ("the disputed area") which, while not large,
has clearly generated much ill-feeling between them.
[2] The pursuers
have raised an action in the Sheriff Court at Stirling.
They crave decree ordaining the defender to uplift and remove all
building materials and a variety of other specified objects alleged to have
been placed by him or his agents, contractors or employees in the disputed
area; and interdict to prevent him, his agents, contractors or employees from
entering into the disputed area to carry out any building works or other
specified activities. There are other
craves, among them craves relating to alleged damage to a dry stone dyke and a
bridge wall, and for an award of damages.
[3] The defender
has lodged a counterclaim, containing craves in the following terms:
"(1) To
find and declare:
a. That at the time of the Pursuers' purchase of Auchineden
Mill, Blanefield, G63 9AW the true common boundary separating the property
being purchased by the Pursuers from that retained by the sellers to them,
Graham Campbell Gordon and Mrs June Gordon, at the
Southeastmost corner of the Pursuers said property, was intended by them to be
delineated by the centre line of (First) a post and wire fence and (Second) a
dry stone dyke with walkway at the North End thereof, as the same is shown by
the lines between the points marked A to G inclusive on each of the Site
Boundary Extract Plans A and C lodged in process (numbers 6(6) and 6(8) of
Process) and the copy of the Loy Surveys plan dated May 2006 lodged in
process (number 6(9) of Process).
b. That it was intended that the disputed area, as defined in
condescendence 4 of the Initial Writ was to be retained by the said sellers,
Graham Campbell Gordon and Mrs June Gordon.
c. That thereafter it was intended that the said Disputed area
be included in the subjects known as Edenmill Farm, Blanefield, G63 9AW subsequently sold to the Defender by
the said Graham Campbell Gordon and Mrs June Gordon.
(2) To find and declare that the Defender is
the Heritable Proprietor of the Disputed Area, as defined in
condescendence 4 of the Initial Writ.
(3) To rectify the Disposition granted by
Graham Campbell Gordon and Mrs June Gordon in favour of the
Pursuers dated 30th October 1997 and Registered in the Land Register
of Scotland under title Number STG22914, in terms of Section 8 of the
Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, to provide that the
true common boundary between the said respective subjects of the Pursuers and
the Defenders is as stated in the Defenders crave 1(a) hereof.
(4) To order the Keeper of the Registers of
Scotland to rectify the Land Register in terms of Section 9(3)(b) of the
Land Registration (Scotland) Act 1979 to reflect the said rectification in
terms of crave 3 hereof." (The
spelling and punctuation are as in the appeal print.)
[4] In response
to the counterclaim, the pursuers have tabled, as their first plea-in-law, a
plea to its relevancy. This plea was
debated before the sheriff, who by interlocutor dated 6 July
2007
repelled it. In the note attached to his
interlocutor, the sheriff expressed a provisional view that it might be
appropriate to fix a proof before answer, and assigned a further diet to
determine future procedure. On 18
July 2007,
however, the sheriff allowed the pursuers leave to appeal the interlocutor
dated 6 July 2007 to this Court, and as a result further procedure was
not determined by him. At the hearing of
the appeal before us, the parties were agreed on a proof before answer in the
principal action, and the issue for our determination was whether there should
also be a proof before answer on the claim for rectification contained in the
third and fourth craves of the counterclaim and the averments directed thereto.
Pursuers' title
[5] Auchineden Mill
was conveyed to the pursuers by a disposition granted by Graham
Campbell Gordon and June Gordon ("the Gordons") dated 30
October 1997
and registered in the Land Register of Scotland under title
number STG22914 on 8 December 1997.
This was a first registration of these subjects in the Land Register in
terms of Section 2(1)(a)(ii) of the Land Registration (Scotland) Act 1979
("the 1979 Act"). The subjects were
described in the disposition as:
"ALL and WHOLE the subjects known as
and forming Auchineden Mill, Blanefield in the County of Stirling together
with the garden ground and paddocks pertaining thereto and being the subjects
shown delineated in red boundaries on the plan thereof annexed and executed as
relative hereto ...".
In the
property section of the land certificate the subjects are described as
"Auchineden Mill ... edged red on the Title Plan". For some reason a copy of the title plan was
not among the productions lodged in the Sheriff Court and was not referred to in the
course of the debate before the Sheriff; it was only in response to questions
by us that a copy was made available. It
bears the date 10 April 2002.
It can be seen at a glance that the title plan is by no means identical
to the plan annexed to the disposition.
In Answer 1 to the counterclaim the pursuers aver, in summary, that
Registers of Scotland advised their solicitors that their subjects could not be
registered as the plan attached to the disposition did not have a north point,
did not conform to a scale, and did not show sufficient detail to allow an
accurate comparison with the Ordnance Map as required by Section 4(2)(a)
of the 1979 Act. Registers of Scotland asked the pursuers to submit a plan
showing clearly the precise extent of the area that was to be registered in
their favour. Thereafter, following
negotiations between the pursuers' solicitors and the Gordons' solicitors, a
revised plan was prepared, which was accepted by the Gordons. The revised plan was accepted by Registers of
Scotland for registration on the Land Register.
The title plan thus registered bears the legend:
"The boundaries shown by dotted lines
have been plotted from the deeds.
Physical boundaries will be indicated after their delineation on the Ordnance
Map."
At the southeastern corner of the area edged red on the title
plan, where the disputed area lies, there are a number of dotted lines, one of
which may or may not show a curve rather than an angle at the corner. In any event, on the pursuers' construction
of the title plan, the disputed area lies within the red edging.
Defender's title
[6] Edenmill Farm
was conveyed to the defender by the Gordons by disposition dated 20
May 2002. In brief, the subjects conveyed were the
remainder of larger subjects originally owned by the pursuers and their
predecessors in title, out of which smaller subjects had been conveyed by a
series of dispositions. The subjects
conveyed to the defender were described as being those conveyed to the Gordons,
under exception of the subjects conveyed by certain specified dispositions, and
"(Seven) the subjects registered in the Land Register of Sasines [sic] under title Number STG
22914". The pursuers' subjects were thus
excepted from the subjects conveyed to the defender. It is averred in the counterclaim that the
disposition in favour of the defender "is in the course of being registered in
the Land Register of Scotland"; although there is no averment explaining why it
has not yet been registered, we were told that the delay is attributable to the
dispute between the parties.
[7] The defender
contends that on a proper construction of the pursuers' title, including the
title plan, the disputed area does not fall within the subjects edged red on
the title plan, and accordingly that it forms part of the subjects conveyed by
the Gordons to him. He avers that the
disputed area is bounded on or towards the northwest by the centre line of a
post and wire fence and of a dry stone dyke with walkway. He further avers that at the time the
pursuers' property was purchased by them the disputed area comprised a
bellmouth entrance and access roadway leading into an area of ground which
included an Atcost shed and stable block comprising part of the subjects then
and still known as Edenmill Farm.
[8] It is not for
us at this stage to express any view about the extent of the parties' subjects,
beyond the following observations. There
is no question of there being an overlap between the subjects conveyed to the
pursuers and the subjects conveyed to the defenders: the manner in which the defender's title is
expressed precludes this. The principal
issue between the parties is therefore the proper construction of the pursuers'
title. This is a matter which will have
to be resolved after a proof before answer, in the course of which it will be
for the Sheriff to decide what evidence is admissible for that purpose and what
conclusions to draw from the admissible evidence which he accepts. Both parties have lodged plans, in addition
to the plan annexed to the disposition in favour of the pursuers and the
pursuers' title plan. The pursuers have
lodged topographic surveys prepared by Loy Surveys, Chartered Land Surveyors,
which bear to show the boundary of the pursuers' subjects. The boundary thus shown forms a right angle
at the southeast corner, and includes the disputed area. Whether or not this is the same as is shown
on the pursuers' title plan will be a matter for consideration by the Sheriff. The defender has lodged a plan and a list of
boundary features, both said to have been prepared by Graham Gordon, one of the
grantors of the disposition in his favour.
The boundary between Auchineden Mill and the land then still
belonging to the Gordons is said to be a post and wire fence. The southeast corner of the pursuers'
subjects is shown to follow a curve, which may or may not coincide with the
entrance to a bellmouth. Again, it will
be for the Sheriff to decide what to make of this.
Relevancy of defender's
application for rectification of pursuers' title
[9] At the debate
before the Sheriff, the principal issue which appears to have been discussed
was whether the defender had relevantly averred a title to sue in his claim for
rectification of the pursuers' title to Auchineden Mill. This turned in part on what were said to be
ambiguities in the defender's position:
it was suggested that it was not clear whether the defender was actually
claiming that he owned the disputed area.
The defender does however expressly aver "that the whole of said area
lies within the extent of the heritable subjects owned by the defender" and
"that any works carried out by the defender have been entirely within the
property owned by him". Before us, it
was confirmed by his counsel that the defender's position is that the disputed
area does not, on a proper construction of the pursuers' title, fall within the
boundary of the subjects belonging to them, and accordingly that it forms part
of the subjects belonging to him. It was
further explained to us that the third and fourth craves in the counterclaim do
not proceed on an esto basis, that is
to say on the hypothesis that, contrary to the position adopted by the defender
in his defences to the principal action, the disputed area does, on a proper
construction of the pursuers' title, fall within the boundary of the subjects
belonging to them. Both the defences to
the principal action and the counterclaim should therefore be read as
reflecting one single position and not two alternative positions; the single
position being that, on a proper construction of their title, the disputed area
does not belong to the pursuers. In
light of this explanation, although fairly extensive submissions were advanced
to us about the question about the defender's title to sue, in the end the main
focus came to be on the relevancy of the defender's claim for rectification in
terms of the third and fourth craves of the counterclaim. It therefore seems appropriate to consider
this issue now.
[10] The statutory
remedy of rectification of defectively expressed documents was created by
sections 8 and 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 ("the 1985 Act"). Section 8(1) provides:
"Subject to section 9 of this
Act, where the court is satisfied, on an application made to it, that -
(a) a document intended to express or to
give effect to an agreement fails to express accurately the common intention of
the parties to the agreement at the date when it was made; or
(b) a document intended to create, transfer,
vary or renounce a right, not being a document falling within
paragraph (a) above, fails to express accurately the intention of the
grantor of the document at the date when it was executed,
it may order the document to be
rectified in any manner that it may specify in order to give effect to that
intention."
Section 9, which is not otherwise relevant for present
purposes, relates to the protection of other interests.
[11] It is clear
from the language of the 1985 Act that the remedy of rectification is only
available if the Court is satisfied that the document in question fails to
express accurately the relevant intention, that is to say that the document is
in some respect inaccurate. Support for
this view may be found in Bank of
Scotland v Graham's Trustee 1992
SC 79, in which Lord President Hope said, at page 88:
"The phrase 'express accurately' can
cover a range of inaccuracies from errors of expression on the one hand to
errors of omission on the other.
Ambiguities may be corrected, and so also may more substantial defects
such as errors in the expression of the grantor's intention in the dispositive
clause of the deed which, if uncorrected, might leave intended grantees without
the rights which the grantor intended to confer."
Reference may also be made to Bank of Scotland v Brunswick Developments (1987)
Ltd 1995
SC 272, in which Lord President Hope said, at
page 279:
"[I]t is clear that the general
intention was to provide a direct remedy for the rectification of defectively
expressed documents which would make it unnecessary to resort to remedies
previously available, which might give rise to procedural difficulties. This suggests that the provision should be
construed, so far as possible, to enable the procedure to be used in all cases
of defective expression in documents of the kind mentioned in the
subsection."
The phrase "defective expression" was
also used by Lord Weir, at page 280.
[12] In
order, therefore, to obtain the remedy of rectification of a document, the party
seeking rectification must satisfy the Court, on the basis of relevant averment
and proof, that the document contains some inaccuracy or error, so that it can
properly be described as defectively expressed.
[13] In
the present case the defender does not offer to prove that the pursuers' title,
and in particular the title plan, contains some inaccuracy or error, such that
it can properly be said that it fails to express accurately the intention of
the Gordons as its grantors. On the
contrary, the single position adopted by him, as explained above, is that on a
proper construction of the pursuers' title it does not include the disputed
area. The defender does not therefore
offer to prove, even in the alternative, that the pursuers' title fails to
express accurately the intention of the Gordons, in respect that it erroneously
includes the disputed area. In the
course of the discussion before us the final position adopted by counsel for
the defender was that the third and fourth craves in the counterclaim were
required in order to obtain clarification of the position of the boundary of
the pursuers' subjects. But
clarification is not rectification:
clarification makes clear that which is unclear, while rectification
corrects that which is incorrect. If
what the defender seeks is clarification, the appropriate remedy would be
afforded by declarator in terms of the first and second craves of the
counterclaim. So far as we are aware, there
is no good reason in principle why an extract decree of declarator could not be
registered in the Land Register.
[14] We
are accordingly satisfied that there are no relevant averments in the
counterclaim to support the claim for rectification contained in its third and
fourth craves. This being so, it is
unnecessary to consider the issue of the defender's title to sue for
rectification.
Result
[15] We
shall, therefore, for the foregoing reasons: recall the Sheriff's interlocutor
dated 6 July 2007; sustain the first plea-in-law for the pursuers in the
counterclaim so far as directed against the third and fourth craves of the
counterclaim; repel the second and third pleas-in-law for the defender in
the counterclaim, dismiss the third and fourth craves in the counterclaim;
exclude from probation the words "that the said Disposition be rectified in
terms of the First defender's third crave and that the Keeper of the Registers
of Scotland be ordered to rectify the Land Register to give effect to said
rectification, in terms of section 9(3)(b) of the Land Registration
(Scotland) Act 1979"; and quoad ultra
allow to parties a proof before answer of their respective averments. Before remitting the case back to the Sheriff
to proceed as accords, we shall allow a continuation to enable the parties to
consider whether any consequential amendment is required to their, and in
particular the defender's, pleadings. If
the parties can secure agreement in this regard, then no further hearing before
us will be required. If they cannot,
then arrangements will have to be made for the case to be put out By Order for
further discussion of the question whether we should exclude any more of the
defender's averments from probation.
This is not a matter which was discussed in any detail before us.
