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.