DESCRIPTIVE RUBRIC

Heritable property - Registration of Title - Claim for indemnity - Claim for reimbursement of expenditure - Whether reasonably and property incurred - Nature of Keeper's function - Whether discretionary - Land Registration (Scotland) Act 1979, section 13 and section 25

MRS Hamilton v The Keeper of the Registers of Scotland
19 September 2001
LTS/LR/2000/2

A company sought indemnity from the Keeper in respect of an error in the Register by which land owned by them was wrongly shown as being subject to a 999 year lease. After various procedures, including proceedings in the Commercial Court, the claim was settled by payment of a sum of £37,500. The claimants also received payment of judicial expenses as taxed in the sum of £36,144. They sought reimbursement from the Keeper of expenditure said to have been incurred by them in pursuing the claim. The bulk of this expenditure was in respect of local and Edinburgh solicitors accounts. There was also a claim for time spent by a director of the company and for certain disbursements made by him. After some exchange of correspondence, the Keeper had the accounts taxed by an expert law accountant on an agent and client, third party paying, basis. The claimants did not accept that basis contending that taxation on an agent and client, client paying, basis would be more appropriate. They pressed for payment in full, intimating that if the Keeper did not accept this they would appeal to the Lands Tribunal. In response, the Keeper gave a detailed explanation of his approach to the claim, made an offer of £20,000, and made certain proposals for further procedure.

The claimants appealed to the Tribunal. As amended, their crave sought declarator that a specified sum was expenditure reasonably and properly incurred in terms of section 13; they also sought interest at such rates as the Tribunal might determine. In their pleadings they founded on the said letter as an act of omission of the Keeper within the meaning of section 25. They contended that the Keeper had no discretion under section 13. He had to make an objective judgement on the claim presented. The claimants had acted reasonably in instructing the particular solicitors. They were obliged to pay the solicitors accounts which would be taxed on an agent and client, client paying basis. They were accordingly entitled to reimbursement for that expenditure. The Keeper contended that in terms of section 13 regard had to be had to the fact that the Keeper was to pay. The closest basis of taxation was therefore agent and client, third party paying. It was further contended that the role of the Keeper in making a determination under section 13 was an administrative one subject to challenge only on the well-known Wordie tests. The appellants had not relevantly identified any failure by reference to such test. Both parties founded on various points where they had taken opposed approaches to detail of the claim.

Held (1) the Keeper's function under section 13 did not involve any exercise of discretion; if a claimant did not accept the Keeper's decision, express or implied, this would normally give rise to a question which could be appealed to the Tribunal under section 25; and the Tribunal would require to apply section 13 to the claim on the basis of material presented to it; (2) although none of the established bases of taxation of solicitors accounts was directly equivalent to the test required by section 13, taxation on an agent and client, third party paying, basis would be expected to give prime facie guidance; (3) although the pleadings did not focus the questions in issue, the Tribunal could competently deal with the appeal by a finding of the amount of expenditure and the whole material adequately disclosed real issues which could appropriately be dealt with by the Tribunal; (4) the claim for interest, as presented, did not fall within the scope of the Tribunal's jurisdiction under section 25 and, in any event, the Tribunal was not satisfied that the Keeper could be said to have "wrongfully withheld" the disputed amounts; and (5) in the circumstances the case should be continued for further procedure which would be expected to follow the lines of an action for count reckoning the payment.

List of authorities

Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223
Ahmed's Trustees v Ahmed (No. 1) 1993 SLT 390
Bannatyne, Kirkwood France & Co, Minuters 1907 SC 705
Bell v Ogilvie (1863) 2 M 336
Blair's Trustee v Payne (1884) 12 R 104
Carmichael v The Caledonian Railway Company 8 Macpherson, HL 131
Employers Assurance Co of Great Britain Limited 1887 5 SLT 248
Hood v Gordon (1886) 23 R 675
Hunter v Livingston Development Corporation 1984 SLT 10
Keeper v MRS Hamilton Ltd 1999 SLT 855
MacBeth, Currie & Co v Matthew 1985 SLT (Sheriff Ct) 44
Malpas v Fife Council 1999 SLT 499
MRS Hamilton Ltd v The Keeper (No. 2) 1999 SLT 840
Patterson v The Keeper (LTS 27 July 1993)
Stair v Stair and Another 1905 13 SLT 446
Walker v Waterlow (1869) 7 M 751
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345

Books
MacLaren - Expenses


See full decision:  LTS/LR/2000/2