Malkin & Anor v Gibson [2008] ScotCS CSIH

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Nimmo Smith

Lord Reed

Lord Penrose

[2008] CSIH 25

XA113/07

OPINION OF THE COURT

delivered by LORD NIMMO SMITH

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:

_______

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 30^th 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.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malkin & Anor v Gibson [2008] ScotCS CSIH_25 (13 March 2008) URL: https://www.bailii.org/scot/cases/ScotCS/2008/CSIH_25.html Cite as: [2008] ScotCS CSIH_25, 2008 GWD 10-191, [2008] CSIH 25, 2008 SCLR 541

Scottish Court of Session Decisions

[2008] CSIH 25