Background
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).

Arguments
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).

Decision
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.

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[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.

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.

HMRC has published the final version of its litigation and settlement strategy.  There has been very few changes to the draft guidance published last July.

HMRC’s guidance can be found here.

Outer House case relating to a personal guarantee granted by Mr Kipling to Dunbar Bank.  The bank issued a charge for the payment of over £1m on Mr Kipling on the basis of the guarantee.

Mr Kipling argued amongst other things that he was not liable to pay as the bank had agreed to waive its right to recover under the guarantee.

Lord Pentland granted an interim suspension and interdict preventing the bank from taking diligence against Mr Kipling following on from the charge.

Subsequent to the granting of the interim interdict, Mr Kipling made amendments to his pleadings which led the bank to enrol a motion to recall the interim interdict, arguing that, given the amendments, the interim interdict was obtained in circumstances where Mr Kipling had failed to make full and frank disclosure on all matters material to his application for the interim orders and also that, following the amendments, the pleadings no longer disclosed a prima face case.

Lord Drummond Young refused the motion to recall the interim interdict.  Five general matters are relevant when considering the application for, or suspension of, such an order:

1. the court’s decision on an interim order is not a conclusive determination of the parties’ dispute;
2. the orders under consideration are merely temporary orders;
3. the court must give consideration to the balance of convenience. I.e. the prejudice that may occur to each of the parties in the event that an interim order is made or recalled (which requires a judgment as to both the likelihood and the seriousness of such prejudice);
4. the relative strength of the cases put forward by the parties;
5. the relative strength of the case that is said to justify an interim order must always be weighed with balance of convenience in the sense of likely prejudice.

As regards the matter before him, Lord Drummond Young found that, although the relative strengths of the cases tended to favour the bank (Mr Kipling’s case relied on the bank having given up its guarantee for no obvious return), given that, if the interim order were withdrawn, the bank could proceed with diligence and ultimately sequestration against Mr Kipling, Mr Kipling’s case on the balance of convenience outweighed the relative strength of the bank’s 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.