Lands Tribunal for Scotland

OPINION

John and Joanna McCoach
v
The Keeper of the Registers of Scotland
and
City of Edinburgh Council

Introduction and Summary

This is an appeal against a decision by the Keeper to rectify an inaccuracy in the appellants’ registered title. The dispute concerns ownership of an area of ground (“the subjects”) comprising a walled tomb enclosure which is of some local historical interest (“the tomb”), and the small garden between it and a residential street (“the tomb garden”). In 2004 the appellants acquired a registered title (without exclusion of indemnity) to the subjects along with the adjacent house and garden which they had purchased. The subjects had until relatively recently been accessed through the garden of the house, which had been in use as a nursing home. However, it has become clear that the foundation title to the house and garden did not include the subjects. There were a number of problems with the view that the title included the subjects, and in particular the linear measurements of the boundary at the street seem to make the matter very clear indeed. Surprisingly, neither the appellants, nor apparently anyone employed on either side of the conveyancing transaction, nor the Keeper, checked these measurements, which would have made it instantly clear that the appellants purchased what had been in the 1850s a 92 feet plot, whereas the title which they took included a frontage of around 117 feet. There was ‘inaccuracy’ within the meaning of Section 9 of the Land Registration (Scotland) Act 1979 (“the Act”). The Keeper decided to rectify the inaccuracy by excluding the subjects.

The other main element in the case is that, unknown to the solicitors acting at the time of the appellants’ purchase and to the Keeper during his investigation of the title which it was sought to register, the local authority, who are the “interested party” in these proceedings, had in fact in 1989 taken an a non domino title to the subjects, recorded in the Register of Sasines, to enable them to maintain the subjects for the benefit of the public. This followed enquiries revealing that the subjects were not owned by either of the neighbouring house owners and no other proprietor could be found. The interested party claimed to have acquired a good title by prescriptive possession prior to the appellants’ registration of their title, thus providing a possible further reason why the Land Register was inaccurate. There was, in fact, at the time of the sale and purchase of the house and garden to the appellants a plaque on the wall inside the tomb recording some of the history, including the information that the tomb and the tomb garden had been taken into the council’s ownership, as must have been well known to the seller, but this was not seen until after that transaction had been settled (although before the application for registration of the appellants’ title was submitted). The rectification process was initiated by the interested party when the appellants, relying on their registered title, started excluding members of the public from the subjects and made clear that they did not wish the interested party or anyone else to do any maintenance or gardening there.

The appellants have appealed under Section 25 of the Act against the Keeper’s decision to rectify. They do not accept that the interested party has possessed the subjects. They have, ultimately, accepted that there was ‘inaccuracy’ in the Register on the basis that their own foundation title was not habile to include the subjects. They do not accept that they, the appellants, or the solicitors acting on their behalf at the time of their purchase, were careless, or that any such carelessness caused the inaccuracy.

In these circumstances, the issues which the Tribunal has had to decide in applying Section 9 of the Act may be summarized as follows:-

(i) Were the appellants a ‘proprietor in possession’ within the meaning of Section 9(3)(a)(iii)? The Keeper did not contest this; the interested party did.

(ii) If so, was the inaccuracy ‘caused wholly or substantially by the carelessness of the proprietor in possession’, i.e. the appellants or their solicitors? This issue was focused on the actings of the appellants’ solicitors.

(iii) If the appeal succeeded, what was the appropriate remedy? The appellants wished the decision to rectify quashed and their position as registered proprietors of the subjects restored. The Keeper contended that their only remedy in the circumstances would be indemnification under Section 12. The interested party, supporting that position, further argued that there could be no rectification to restore the appellants’ position because they, the interested party, were a ‘proprietor in possession’.

As matters have turned out, with ‘inaccuracy’ in relation to their own foundation title now conceded by the appellants, the Tribunal might not have required to decide whether the interested party had acquired a good title by prescriptive possession prior to the appellants’ becoming the registered proprietors of the subjects. However, evidence and submissions on this issue were also heard, and we consider it appropriate to express our opinion on it also. Logically, it comes first.

We have decided as follows:-

(i) The appellants were a ‘proprietor in possession’.

(ii) In the particular circumstances of this case, the inaccuracy was caused substantially by the carelessness of the appellants, through their solicitors’ actings.

(iii) The appeal accordingly fails.

(iv) We are also of the opinion that, prior to the registration of the appellants’ title, the interested party did acquire title to the subjects by prescriptive possession, so that the appellants’ title was inaccurate for that reason also.

(v) We are inclined to the view that had the appeal succeeded the appropriate remedy would have been to recall the Keeper’s decision to rectify and order him to restore the inclusion of the subjects in the title sheet of the title MID 58794.

Procedure

John and Joanna McCoach, proprietors, under Title Number MID58794 registered on 13 April 2004, of subjects comprising a house and garden at 1 Chamberlain Road, Edinburgh, appealed against a decision of the Keeper of the Registers of Scotland on 21 July 2006 to rectify the register by removing the subjects, i.e. tomb and tomb garden, which lands had previously formed part of their registered title, from the title sheet. The City of Edinburgh Council, who claimed title to the subjects by virtue of a Disposition by William Blyth in their favour recorded in the General Register of Sasines for the County of Midlothian on 15 November 1989 were convened as the ‘interested party’ and opposed the appeal.

Following a number of procedural hearings, the appeal was heard on its merits in three oral hearings: on 11, 12 and 14 February 2008, when evidence on the possession issues was heard; from 8 to 12 September 2008, when evidence on the issues of ‘inaccuracy’ (then still in dispute) and ‘carelessness’ was heard; and on 26 September 2008, when counsel, who had each helpfully provided written submissions, elaborated on their submissions. At the hearing in February 2008, the appellants were not legally represented, but were represented by Mrs McCoach; the Keeper was represented by Mr Sheldon, Advocate, instructed by the solicitor to the Scottish Government; and the interested party was represented by Mr O’Carroll, Advocate, instructed by the Solicitor to Edinburgh City Council. At both hearings in September 2008, the appellants were represented by Mr MacColl, Advocate, instructed by Messrs Bell and Scott, Solicitors, Edinburgh; the Keeper by Mr Sheldon as previously; and the interested party by Mr Artis, Advocate (Mr O’Carroll being unavailable at that stage). Following the first of the September hearings, it was intimated that the appellants now accepted that there was an ‘inaccuracy’ in their registered title, i.e. that their foundation title was not habile to include the subjects. The substantial written submissions provided in advance of the hearing on 26 September are summarized at the beginning of the Tribunal’s consideration of each of the issues but not here recorded ad longum. We are grateful to all parties and their representatives for their presentation of this difficult case.

The parties agreed a number of matters of fact, but some quite significant issues of fact and degree were not agreed. Extensive documentary evidence, which was all agreed to be what it bore to be, was lodged by each party. At the hearing in February dealing with issues of possession, oral evidence was given on behalf of the appellants by John D. Campbell QC, in a personal capacity, as having had some knowledge of the subjects during the period when the nursing home was open; by Mr McCoach; and by Mrs McCoach. Written statements by Elaine Dhouieb, who had visited the subjects since the appellants’ purchase of them, and James Littlejohn, a building consultant, who had been involved in the conversion of the former nursing home on the appellants’ instructions, were accepted as evidence of their contents. Evidence was given on behalf of the interested party by Ian Temple, a landscape architect within their Planning Department; by Michael Shields, a Community Parks Officer; and by Michael Pringle MSP, who had been involved over an extensive period, as a local politician and councillor, in relation to the development of the subjects as a place of local public resort; and a written statement by David Doig, a former Supervisor within the Recreation Department, was accepted as evidence of its contents. Then, at the first hearing in September 2008, evidence was given on behalf of the Keeper by Valerie Clough, Indemnity Director and formerly Director of the Sasine Register and a legal settler at the Registers of Scotland; and by Professor Robert Rennie, Professor of Conveyancing at the University of Glasgow. Evidence was given on behalf of the appellants by Christopher Hardie, solicitor, a partner in Messrs Brodies, Solicitors, Edinburgh, which firm (although not initially Mr Hardie himself) had acted on behalf of the appellants in their purchase and in the application for registration of their title; by Mrs McCoach; and by Donald Reid, solicitor, as an expert conveyancer. Professor Rennie and Mr Reid had prepared written opinions, mainly on the issue of ‘carelessness’ of the appellants’ solicitors, but also touching on the question whether the foundation title was habile to include the subjects.

It should also be mentioned that very shortly before the September hearings, further research apparently revealed that if the interested party had not acquired a good title by prescriptive possession, the ‘true owner’ might in fact be the Church of Scotland General Trustees, apparently as residuary legatee of what was left of the estate after it was developed as a residential estate in around 1850! However, the correspondence with that body showed that they did not wish to pursue any interest in these subjects. It was accordingly not felt necessary to involve them at this late stage in the proceedings.

Statutory Provisions

Section 1 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) provides:-

“1(1) If land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed-

(a) the recording of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in-

(i) that land; or

(ii) land of a description habile to include that land; or

(b) registration of a real right in that land, in favour of that person, in the Land Register of Scotland, subject to an exclusion of indemnity under section 12(2) of the Land Registration (Scotland) Act 1979 (c.33),

then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge”.

Section 9 of the Land Registration (Scotland) Act 1979 (“the Act”) provides inter alia:-

“9(1) Subject to subsection (3) below, the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.

(3) Subject to subsection (3B) below, if rectification under subsection (1) above would prejudice a proprietor in possession –

(a) the Keeper may exercise his power to rectify only where –

(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;

(ii) all persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;

(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or

(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;

(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph (i), (iii) or (iv) of paragraph (a) above applies or the rectification is consequential on the making of an order under section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.”

Section 25 of the Act provides inter alia:-

“25(1) Subject to subsections (3) and (4) below, an appeal shall lie, on any question of fact or law arising from anything done or omitted to be done by the Keeper under this Act, to the Lands Tribunal for Scotland.”

Other Authorities referred to

Smyth v Allan (1813) 5 Pat. App. 66
Wallace v Police Commissioners of Dundee(1875) 2 R 565
Auld v Hay (1880) 7 R 663
Aitken’s Trustees v The Caledonian Railway (1904) 6 F 465
Houston v Barr 1911 SC 134
Donald v Donald 1913 SC 274
Brown v Hamilton District Council 1983 SC (HL) 1
Brookfield Developments Ltd v The Keeper of the Registers 1989 SLT (Lands Tr) 105
Suttie v Baird 1992 SLT 133
Rodenhurst v Chief Constable, Grampian Police 1992 SC 1
Hamilton v McIntosh Donald Limited 1994 SC 304
Short’s Trustee v The Keeper of the Registers 1996 SC (HL) 14
Butt v Galloway Motor Company Ltd 1996 SC 261
Dougbar Properties Limited v The Keeper of the Registers 1999 SC 513
Kaur v Singh 1999 SC 180
MRS Hamilton Ltd v The Keeper of the Registers 2000 SC 271
Wilson v The Keeper of the Registers 2000 SLT 267
Stevenson-Hamilton’s Executors v McStay (No 2) 2001 SLT 694
Safeway Stores plc v Tesco Stores Limited 2004 SC 29
McTear v Imperial Tobacco 2005 2 SC 1
Foster v The Keeper of the Registers 2006 SLT 513
Local Government (Scotland) Act 1975, Section 3(2)
Stair, Institutes, II.1.17
Stair Memorial Encyclopedia, vol 18, paras 118, 125, 127, 151

The Facts

On the basis of parties’ agreement, the oral and documentary evidence, parties’ submissions and our own visit to the subjects, we have found the facts and circumstances to be as follows.

The Subjects

The tomb consists of four stone-built walls laid out in a square shape. Within the walls is a gravestone set into the inner face of the westmost wall. The tomb is the reputed burial place of John Livingston who died in 1645. The tomb garden is a landscaped unbuilt area of land adjacent and to the south of the tomb, linking it with Chamberlain Road in the Morningside area of Edinburgh. There is a doorway providing access from the tomb garden to the inside of the tomb located at the midpoint of the southmost wall of the tomb. The tomb garden has a frontage to Chamberlain Road of approximately 24 feet. The subjects extend in total to 0.035 acres.

The driveway and garden of 1 Chamberlain Road, also known as Ashfield House, which had been a nursing home prior to the appellants purchasing it, lies to the west of the subjects. Access to 1 Chamberlain Road is by a driveway immediately to the west of the subjects and also by a pedestrian gate further to the west. Both 1 Chamberlain Road and the subjects were at the relevant time separated from the pavement and road by a low rise stone wall. The tomb garden could be viewed as physically part of the front garden of the house. Access to the subjects could be taken physically from the driveway of the house, through a gap in a very low metal railing above cobbles which delineated a division between the tomb garden and the garden of the house. Since 1997, there has also been a pedestrian gate allowing access to the subjects directly from the street.

The garden grounds of 17 Greenhill Gardens lie to the east and north of the subjects, separated from them by two walls of the tomb and a substantial garden wall running down the east side of the tomb garden. Greenhill Gardens runs at right angles to Chamberlain Road, to the east of the subjects.

The land now comprising 17 Greenhill Gardens was first feued off from the original Greenhill Estate in 1851. The land now comprising 1 Chamberlain Road (excluding the subjects) was first feued off in 1856.

The Appellants’ Title

By Disposition dated 10 February 2004 (“the 2004 Disposition”) Helen Margaret Campbell disponed to the appellants:-

“ALL and WHOLE that dwellinghouse number 1 Chamberlain Road, Edinburgh in the County of Midlothian together with the garden ground pertaining thereto being the subjects described in and disponed by Disposition by Isabella Day McNeill or Botting in favour of Janett Williamson or White dated 16 and 18 and recorded in the Division of the General Register of Sasines applicable to the County of Edinburgh (now Midlothian) on 19 all April 1938 [“the 1938 Disposition”]; all as the subjects hereby disponed are shown delineated and coloured blue on the plan annexed and executed as relative [to the 2004 Disposition].”

The 1938 Disposition was the foundation title. The plan attached to the 2004 Disposition showed the subjects disponed to the appellants, including the tomb and tomb garden, shaded in blue.

No plan was attached to the 1938 Disposition. The description of the subjects disponed in that foundation title was as follows:-

“ALL and WHOLE that piece of ground part of the lands of Greenhill lying formerly in the Parish of Saint Cuthberts now the Unified City Parish of Edinburgh and County of Edinburgh measuring ninety two feet or thereby in front and containing six twenty one parts of an acre Imperial Measure or thereby measured off by John Henderson, Architect in Edinburgh, fronting the road called Chamberlain’s Road and bounded on the South by the said Road, on the West by the remaining lands of Greenhill sometime belonging to Sir John Stuart Forbes Baronet, on the North by the land feued to John Watherston, Builder, and on the East partly by the land feued to the Reverend John Kirk, partly by the walls of the old Tomb and partly by a piece of ground part of the said lands of Greenhill sometime belonging to the said Sir John Stuart Forbes together with the dwelling house and other buildings erected on the said piece of ground hereby disponed; Together also with … ”

The descriptive narrative in the 1938 Disposition repeated verbatim the wording in the original 1856 feudal conveyance, the Instrument of Sasine in favour of Isabella Smith recorded in the General Register of Sasines on 7 October 1856.

The appellants applied for registration of the title to the subjects conveyed in the 2004 Disposition in the Land Register of Scotland on 7 April 2004. That title was registered by the respondent under title number MID58794 on 13 April 2004. The title sheet prepared by the respondent included a title plan which reproduced the deed plan of the 2004 Disposition, thus including the subjects, without any exclusion of indemnity.

The southern boundary of the subjects thus registered, i.e. the frontage to Chamberlain road, measures around 126 feet. The front of 1 Chamberlain Road, excluding the subjects, measures 92 feet or thereby. The area extended to 0.321 acres. “Six twenty one parts” of an acre is 0.286 acres.

The Interested Party’s Title

A Disposition in favour of the interested party by William Blyth (their Director of Administration), recorded in the General Register of Sasines for the County of Midlothian on 15 November 1989, disponed the subjects, for a consideration of £1 (“the 1989 Disposition”). The subjects were referred to in the Disposition as an area extending to 106 square metres, which is 0.0262 acres. There was a full bounding description, which also referred to a plan delineating the tomb and the tomb garden.

The Title to 17 Greenhill Gardens

The title to 17 Greenhill Gardens is derived in a similar way to that of 1 Chamberlain Road from the orginal feu conveyance, in this case an Instrument of Sasine in favour of the Reverend John Kirk recorded on 17 May 1851. The operative description of those subjects was as follows:-

“all and whole that piece of ground … consisting of about two hundred and seventy five decimal parts (.275) of an acre Imperial measure or thereby measured off by John Henderson architect in Edinburgh … bounded as follows viz. on the north by the ground lately feued to John Watherston Builder, on the east by the public road or street of Greenhill Gardens, on the south by a road or street to be made from said road or street of Greenhill Gardens leading to Boroughmuirhead, and by the Walls of the old Tomb lying within the Lands of Greenhill, and on the west by the said lands of Greenhill and by the Walls of the said old Tomb lying within the same … ”

The Interested Party’s Involvement from 1989 to 2004

In 1984 approaches were made to the interested party’s predecessors (also for convenience referred to as “the interested party”) regarding the decaying state of the tomb walls and the wall between the tomb garden and 17 Greenhill Gardens as a result of vegetation growth, and in particular a tree whose roots were damaging the walls of the tomb. At this time, and until about late 1986, it was thought that the tomb garden might lie within the Ashfield Nursing Home subjects but that the tomb itself was not owned along with either Ashfield or 17 Greenhill Gardens. Neither owner accepted any responsibility. Enquiries were then made of the successors to the original estate, so far as these could be traced, but these too were unsuccessful.

On 7 February 1985 the interested party’s Director of Planning recommended that “the District Council should take steps to secure guardianship and ownership of the tomb which will be held on Planning Account, with occasional maintenance by the Burial Ground Division of Environmental Health.” The Planning and Development Sub-Committee resolved to recommend (a) that action be taken to bring the tomb into the ownership of the Planning Committee and that repairs be carried out not exceeding £3,500 the cost to be met from the Property Repair Estimates for 1985/86 and (b) that the Scottish Development Department be requested to include the tomb in the statutory list of buildings of special architectural or historic interest.

There was at that time no direct access to the subjects from Chamberlain Road. Solicitors for the owners of 1 Chamberlain Road wrote on 28 November 1986 that they had no objection to the District Council forming an access to the tomb “over the land, adjacent to their own.”

In November 1987 the Planning Policy Sub-Committee resolved to bring the tomb and tomb garden into District Council ownership by means of an a non domino title and that the essential repairs needed to the boundary wall with 17 Greenhill Gardens could thereafter be carried out on a mutual basis with that owner. It was also proposed that in the future the ground between the tomb and the road (the tomb garden) be landscaped to better “set off” the tomb. The interested party’s solicitor had examined the 1856 and 1938 titles relating to 1 Chamberlain Road and measured its southern boundary by plotting it on an Ordnance Survey map, establishing that the southern boundary from the westmost point of the subjects to the western boundary of 1 Chamberlain Road measured 92 feet. She had also examined the title to 17 Greenhill Gardens and concluded that the subjects were excluded from those subjects and remained part of the original Greenhill estate. She was then unable to trace any current owner. Plans for the a non domino title were finalised and the 1989 Disposition granted and recorded.

Emergency repairs were carried out to the tomb and mutual wall with 17 Greenhill Gardens in the period up to 1992. Employees of the interested party’s Recreation Department carried out occasional maintenance, e.g. strimming, hedge trimming, litter tidying and weeding in both the tomb and the tomb garden from about 1986 onwards. Following pressure from local residents the local councillor for the ward requested the interested party to put in hand a scheme for upgrading and enhancement of the tomb and tomb garden. Some meetings were held, culminating in a meeting at 1 Chamberlain Road on 17 August 1995 at which were present the officer of the interested party charged with producing and implementing the scheme of upgrading works, Mrs Campbell, matron and owner of the nursing home, and representatives of the Greenhill and Church Hill Amenity Association (“the amenity association”). These meetings were held on the understanding that the interested party would be responsible as owners of the subjects for carrying out and meeting the expense of the proposed works. Agreement was reached on the scheme of works which was then implemented, mainly by a training body sponsored by the interested party. The works were completed by the end of November 1995. They comprised laying slabbed pathways in a cross shape with one leg leading from Chamberlain road to the door in the south wall of the tomb and the other from the driveway of 1 Chamberlain Road. This latter path was laid at the request of the nursing home matron for residents to gain access to the newly formed tomb garden as well as the tomb. A number of small shrubs and rose bushes were planted. The Recreation Department had responsibility for ongoing maintenance work. The Planning Department took responsibility for forming an opening in the front stone wall to Chamberlain Road and installing a gate there, which work was carried out in around 1997. The wooden door into the tomb was replaced by an iron gate. A regime for regular maintenance was implemented from the end of January 1996. This involved a series of tasks to be carried out monthly (at least during the summer), two monthly and annually. On average there were around 7 or 8 maintenance visits per year, ranging in duration from 10 minutes to 2 hours. The amenity association arranged for the installation of a bench (with a small plaque referring to their donation of it) within the tomb garden. Apart from the cost of the bench, all of this work was at the sole expense of the interested party.

In July 1999 there was an official opening ceremony attended by the Chair of the amenity association as well as the local councillor, Mr Pringle. A large number of members of the public as well as nursing home residents attended, and the numbers spilled over onto the nursing home grounds. A plaque, which had been designed and commissioned by the amenity association and affixed by the interested party on the inside of the south wall of the tomb, to the left of the door, was unveiled. This narrated the story of John Livingston and his death in 1645; set out the text of the old inscription on the tombstone; referred to Greenhill House; and continued as follows:-

“The recent background is unusual. In 1984 the then District Council, noting that the walls needed extensive reapirs, wished to serve statutory repair notices. Research however showed that the tomb and forecourt were outwith the title deeds of the adjacent properties; it was an owner-less piece of land-locked ground. In due course the Council took it into ownership, and carried out considerable emergency repairs.

“Thereafter progress was little until 1994 when, at the instance of the Greenhill and Church Hill Amenity Association, and with the effective support of Councillor Michael Pringle, the Council approved funds for the up-grading of the tomb. Work continued over the years, and the restored tomb and forecourt were finally opened by Councillor Pringle in July 1999.”

With some minor breaks due to work or personnel issues the regular maintenance work by the interested party continued until around 2002. The nursing home gardener also did some gardening, and members of the amenity association also assisted with minor tasks from time to time. Heavier work, and work inside the tomb, was all carried out by the interested party’s employees. The public had access to the subjects though the newly formed gate from the road. A few members of the public did take access. When carrying out routine maintenance work, the interested party’s workmen often parked their vehicles in the grounds of 1 Chamberlain Road with Mrs Campbell’s consent. Around 2003, a change of personnel led to the work pattern becoming more sporadic, and by 2004 the garden had become overgrown and clearly lacking attention. In September 2003 the amenity association requested the interested party to undertake the required maintenance works. By March 2004 the interested party had undertaken some of the necessary works and the amenity association reminded them of two outstanding matters, namely that a number of roses were choked and a need to trim adjacent creepers.

The interested party maintains a list of ‘Burial Grounds and Crematoria’ within its jurisdiction. These are locked at night. Signs at the entrance to these sites are headed, ‘EDINBURGH – The City of Edinburgh Council’. The subjects were not included on that list, were not subject to such security arrangements and did not have any such sign at the entrance.

The Appellants’ Purchase of 1 Chamberlain Road

In mid-2003 the appellants saw the subjects at 1 Chamberlain Road, i.e. the former nursing home, being advertised for sale. The sale particulars (which were not available to the Tribunal) apparently made no reference to the tomb. Both appellants viewed the property, together with two of their children. They were shown round by the owner, Mrs Campbell. She made reference to there being a tomb in the garden and showed them it. She did not draw attention to the plaque with the information that the tomb and tomb garden were in the ownership of the interested party, and neither of the appellants noticed that. Mrs McCoach later viewed the property on her own, being shown round by a professional viewer. She did not then look at the tomb but asked the viewer about it. The viewer told her that the tomb might be maintained by the local council but that the matter would have to be checked by solicitors.

On 21 July 2003 Mrs McCoach faxed her solicitors, Messrs Brodies (“Brodies”), with instructions on the price the appellants wished to offer but also raising “a number of queries which require to be addressed before we offer”. These included:-

“2. What is the position with regard to the grave to the right of the house? Does Edinburgh Council own it outright or is there any burden on 1 Chamberlain Road?

“3. In the event that the grave is totally separate (our understanding from the viewer),

(i) Can we fence off the drive without planning permission?

(ii) Are there any issues which we should be aware of with regard to this site?”

The transaction was handled within Brodies by an experienced unqualified assistant, or para-legal, Evelyn Readie, and initially by a partner, Mr Clark. Mr Clark, however, retired from the partnership in 2004 and in January 2004 Mr Hardie took over the transaction. Ms Readie responded to Mrs McCoach’s query about the subjects by explaining that she could not confirm the position on the title until Brodies examined the title deeds.

Brodies submitted a formal offer on 23 July. The seller’s solicitors, Messrs David Johnson & Co (“Johnsons”, the partner concerned being Mr David Johnson) sent a qualified acceptance, enclosing the title deeds and stipulating that the purchaser would have 10 days from then to resile but otherwise would be deemed satisfied as to the title position.

Ms Readie examined the title and prepared ‘Notes on Title’. Under ‘Current Description’, she narrated the verbal description in the 1938 Disposition of the area of ground, and added:-

“Comments: Very old common law description and extremely vague.”

“Prescriptive Progress”, “Burdens” and various other matters were narrated in more detail. Under ‘Descriptive Writs’, the 1938 Disposition was identified, with a further similar comment:-

“See above. Very vague common law description.”

No other documentary record of the examination of the title, or the interpretation of the boundary on the east side, by Brodies, before the settlement of the transaction, was produced to the Tribunal or referred to in evidence.

Mr Clark took instructions from Mrs McCoach over the telephone. These included that the appellants were “both keen to have the boundaries especially with regard to the grave which is understood to be excluded from the sale … ” In a further qualified acceptance, Brodies did not accept the condition about the title and instead narrated that their clients required to have a plan of the subjects of sale exhibited to them prior to the conclusion of missives “in order that they may be satisfied as to the precise nature of the boundaries.” In a covering letter, Brodies mentioned that a plan “will be required for the P16 Report” and they wished to see a copy as soon as possible. There was a measure of misunderstanding between Brodies and Johnsons as to the formal effect of this further qualification, but nothing turns on that. Thereafter, matters proceeded on the basis of Brodies seeking clarification from Johnsons of the extent of the title in a number of communications, which they reported to Mrs McCoach and discussed with her.

Johnsons at first produced an Ordnance Survey site plan. This showed the area of the tomb enclosed all round and, in the tomb garden, boundaries on its east side (which was the garden wall with No 17 Greenhill Gardens), its north side (the south wall of the tomb) and its south side (Chamberlain Road) but no boundary dividing the tomb garden from the garden of 1 Chamberlain Road. The title boundaries were, however, not marked in any way. Mrs McCoach instructed that this was insufficient. Brodies reverted appropriately to Johnsons on the matter.

On 8 September, Johnsons sent a plan which had been with the title deeds together with a copy of the 1857 Feu Contract which the description in the 1938 Disposition had followed. This plan apparently referred to certain proposed works at some time in the past. Certain walls were marked in bold but the plan did not show the boundaries. The tomb garden area was hatched. Johnson’s letter continued (verbatim, sic):-

“In simple terms it is not clear from the title just were the boundary line lies although on the ground it might be taken that that area which we have hatched on the plan is part of the Ashfield title. By running a Property Definition report to find out why the Ordnance Survey views it just now and we have also asked the searchers to secure a copy of the deed relative to the tomb to discover if there is a pre-existing claim. In fact the area of ground is little more than scrub at the moment with a pathway down the middle to the tomb and in any event that it falls within the Ashfield title there can be no doubt that our prescriptive right of access has been established.

“Given that it does not impinge upon the driveway to Ashfield House itself it indeed lies outwith the eastern boundary line. The writer had never anticipated that it was part of the subjects of sale.”

On 11 September, Johnsons wrote to Brodies as follows:-

“We write to enclose Form 10a and Property Definition Reports.

“Our clients had advised that the tomb had been taken over for maintenance purposes by the Local Authority but they certainly haven’t taken title. It would appear that the tomb is within the ownership of Ashfield and if your clients choose to give access that will be a matter for them. Please confirm you are happy to proceed on that basis.”

This letter enclosed 5 copies of documents, as follows:-

(i) A cover sheet from Ross Lornie & Co (Searchers) Ltd (“Ross Lornie”), marked, ‘Form 10a’, headed ‘Pre-registration report over subjects – Ashfield, 1 Chamberlain Road, Edinburgh’;

(ii) A Form 10A, revealing the (uncontroversial) progress of title since the 1983 Disposition to Regis Nursing Home and a clear personal search in the Register of Inhibitions and Adjudications;

(iii) A form of instructions by Johnsons, dated 9 September and headed ‘Application for a pre-Registration report (Form 10)’ – this specifically requested searches on the property registers, relating to ‘1 Chamberlain Road, Edinburgh’ and, under ‘Description of Subjects’, identified the 1938 Disposition, and personal searches, but without any reference to a Property Definition Report;

(iv) A letter dated 09/09/2003, from Ross Lornie to Johnsons, in relation to ‘Ashfield, 1 Chamberlain Road, Edinburgh’, headed, ‘Result of comparison of bounding description with the O.S. map’, as follows:-

“2. The boundaries of the subjects coincide with those on the O.S. map” (the other two possible entries on the pro forma, ‘cannot be identified … ’ and ‘do not coincide … ’ having been deleted).

A footnote, in small type, reads: ‘This information is issued is issued in respect of the subjects described in your application (copy attached). It does not necessarily represent the subjects currently comprised in the title’; and

(v) A copy of the Ordnance Survey site plan, with a Ross Lornie stamp, on which the whole of 1 Chamberlain Road and the tomb garden, and the tomb, were all shaded.

Item (iv) (together with (v)), is referred to as the “Property Definition Report”. No express instruction of such a report was exhibited to Brodies at the time or produced to the Tribunal.

The transaction took a different course from this point onwards. Mr Clark took instructions from Mrs McCoach over the telephone. His record covers this aspect as follows:-

“Attendance at telephone on Mrs McCoach when we discussed the position regarding the Tomb and access area at some length. She confirmed that you both wished to proceed with the purchase and conclusion of missives for which there was some ambiguity.”

The “ambiguity” may have referred to the misunderstanding about the formal position under the missives referred to above rather than to any doubt about the title. Brodies then, on 17 September, wrote to Johnsons with a formal letter confirming that their clients were “satisfied as to the precise nature of the boundaries of the subjects of sale”, thus concluding the bargain.

Matters thereafter proceeded towards settlement on the basis that the subjects were included in the sale and that the conveyance in favour of the appellants would not simply refer to the description in the 1938 Disposition but would refer to a plan showing the subjects included, as duly happened. This was the plan sent by Ross Lornie. The appellants took delivery of the Disposition in their favour on that basis, and took entry to the subjects, on 18 March 2004.

The Application for Registration of the Appellants’ Title

This was to be a first registration on the Land Register, the title to 1 Chamberlain Road having previously been recorded in the Sasine Register (and the at that time unknown title of the interested party to the subjects also being a Sasine title). The conveyance to the appellants was thus the ‘Disposition Inducing Registration’. In the normal way, although the application is made by the purchaser’s solicitors, Brodies and Johnsons required to agree the terms of the application. Brodies drafted the relevant forms, whose terms were agreed by Johnsons. Form 1, together with the documents submitted, vouches the title and answers a number of questions on a pro forma basis. The application was thus in the form agreed by the two solicitors at the date of settlement of the transaction, with a view to immediate submission. This form was, as is normal, signed by Brodies, certifying the accuracy of the application.

Questions 3 and 14 on Part B of Form 1 are respectively as follows:-

“3. Is there any person in possession or occupation of the subjects or any part of them adversely to interest of the applicant? If YES, please give details.”

“14. Are there any facts and circumstances material to the right or title of the applicant which have not already been disclosed in this application or its accompanying documents? If YES, please give details.”

Each of these questions was answered ‘No’. The application as prepared and agreed, including the documentation provided, made no reference to the position of the interested party.

Unusually, as a result of the implementation of recent changes to the Stamp Duty Land Tax provisions, and through no fault of anyone, there was a delay in submitting the application for registration while the process of accounting for the duty was completed. Brodies certified and submitted the application on 7 April 2004.

On 28 March 2004, following some communication from the Greenhill Amenity Association, Mrs McCoach noticed, for the first time, the plaque which had been attached to the inside of the south wall of the tomb in 1999 narrating the history of the tomb and including the statement that the “tomb and forecourt” (i.e. the tomb and the tomb garden), had been taken into ownership by the interested party. Mrs McCoach wrote to Mr Hardie on the same day, drawing attention to this, in particular to the passage narrating that research had shown that the subjects were outwith the ownership of the adjacent properties and that the Council had taken it into ownership, and also to correspondence from the Amenity Association referring to “adoption” of the tomb and tomb garden by the City Council. She requested Mr Hardie to advise whether “a third party (ie, the council)” had any claim to title and what action, if any, was required.

Mr Hardie replied on 30 March 2004 at some length. He referred to three conflicting versions, viz. ownership of the Council, “adoption”, and the tomb belonging to Ashfield House. He continued:-

“The written description of Ashfield House was not clear with regard to this. The relevant part of the description reads that the boundary is ‘partly by the walls of the old tomb’. However, it does not make it clear whether this is the inner or outer walls.”

The letter went on to explain that it was clear that the disposition in the appellants’ favour did have a plan showing the precise boundaries and included ownership of the tomb. An absolute assurance could not be given that there might not be some ancient title in favour of the Council or some other party, but no such competing title had been disclosed in “the usual searches carried out in the Sasine and Land Register”. If there were such a competing title and action were taken to dispossess the appellants, there would be a claim against Mrs Campbell. The attitude of the Keeper was, Mr Hardie wrote, another factor: if he agreed with the view that the wording in the older title deeds was sufficiently vague to allow him to conclude that the tomb was within the ownership of Ashfield House, he would issue a Land Certificate for the whole of the property, but if he took the view that it was possible to construe that the wording meant that the tomb was excluded he might refuse to register them as owners of the tomb or exclude indemnity. However, the seller’s continuing contractual obligation covered that position. Mr Hardie did not express any opinion as to whether the title had been habile to include the subjects. As to action, Mr Hardie advised that no action was required, but that the tomb required to be maintained. As the sellers’ agents and also the Amenity Association considered that the Council had adopted the tomb for maintenance purposes, the Association should be allowed to continue to pressurize the Council to carry out maintenance work. Carrying out an extensive search of the Council’s ownership would be very time consuming and expensive and very likely to disclose no result, and had apparently been done already.

Mr Hardie did not make any alteration, in the light of this new information, to the agreed terms of the application before its submission on 7 April. The Keeper requires to examine the foundation title relied on in any application for first registration. The process includes ‘legal settling’, checking on the quality of title, etc; and ‘plans settling’, checking to ensure that the extent of the subject to be registered can be accurately plotted on the Ordnance map as required under the registration system. In this case he processed the application, with the relevant titles but without any information as to any of what the seller or the purchasers had heard about involvement of the Council. The extent of actual examination of this particular title within the Keeper’s office is not known. It apparently did not include checking the measurements on the south boundary or the area against the measurement and the area set out in the verbal description in the 1938 Disposition. It also did not reveal the existence of the interested party’s Sasine title. The application was accepted and the Land Certificate in respect of 1 Chamberlain Road, including the subjects and without any exclusion of indemnity, was issued with a registration date of 13 April 2004. Mr Hardie reported this to the appellants on 24 May 2004.

Possession from March 2004 onwards

The appellants completed the purchase of 1 Chamberlain Road and took entry on 18 March 2004. They did not initially reside in the house as they embarked on a major scheme of alterations and renovation to the buildings to convert them from a nursing home to a private residence. Contractors were appointed and commenced work. A garden bench was located in the tomb garden and on occasions builders used that during their lunch breaks. The appellants visited the house about once or twice a week to check on the work. The second appellant also occasionally visited the tomb and garden. She did minor gardening work there. The appellants’ children played in the garden, including the subjects. The interested party also occasionally maintained the subjects although the frequency of this had diminished. Members of the public also visited from time to time.

In August 2005 the appellants moved into 1 Chamberlain Road. They continued to carry out minor gardening work and general tidying of the subjects. They applied for planning permission, on the basis that the subjects were included in 1 Chamberlain Road to raise the height of the boundary wall both in front of their the house and in front of the subjects. This was refused on 25 October 2005.

Members of the public continued to visit the subjects. At some stage the appellants removed the plaque and locked the tomb garden gate into the street. Following one or two visits from local residents indicating that they had the Council’s permission to help with gardening at the subjects and requesting to continue to do so, Mrs McCoach wrote to the interested party, asserting her right as owner, in August 2005. Mr Shields visited Mrs McCoach and agreed to look into the matter. Following one or two more disturbing incidents with members of the public and also the refusal of the planning application regarding the wall, the appellants installed fast growing shrubs and metal fences (Heres fencing) along the front boundary and western side of the tomb garden. They thus excluded both the public and the interested party from the subjects, causing a degree of local uproar and the involvement of the Edinburgh Evening News in several articles describing the situation. Mr Pringle, now an MSP, became involved in the dispute. The interested party discovered that the appellants had obtained a title to property which the interested party understood that they owned and applied to the Keeper to rectify the appellants’ title.

After a process of correspondence with another firm of solicitors now acting on behalf of the appellants and consulting Professor Rennie and also counsel, the Keeper decided in July 2006 to rectify the appellants’ title by excluding the subjects from the title sheet in the appellants’ land certificate. As well as instructing the present appeal, the appellants commenced Court of Session proceedings for interdict and interim interdict. Their motion for interdict was refused, following which agreement was reached whereby the interested party took over possession of the subjects pending the resolution of the dispute.

Tribunal’s Consideration

(i) Whether the interested party had acquired title by prescriptive possession

It seems logical, or at least chronological, to consider this dispute between the appellants and the interested party, in which the Keeper did not involve himself, first.

The interested party claims to have maintained continuous possession of the subjects (except when prevented from doing so by the appellants in the course of their dispute) from 1989 to the present day, and to have done so openly and peaceably and without judicial interruption. The disposition in their favour clearly being sufficient to pass title in the subjects, they claim to have acquired a good title by prescriptive possession under Section 1(1) of the 1973 Act. In submission, they pointed to the various steps taken by them, summarized as ‘an occasional but regular and prolonged task of maintenance and improvement’ of the subjects, over a substantial number of years. Reference was made to the plaques inside and outside the tomb. There was evidence that the interest of Mrs Campbell, the nursing home owner, was that of a neighbour. The Council would be presumed not to be doing work on others’ land. The scale of public protest at the appellants’ erection of barriers demonstrated that the public had enjoyed access for some substantial time: enjoyment of such a public amenity, made available and maintained at public expense, could be relevantly counted towards the interested party’s possession.

The appellants advanced a different view of the facts. It was submitted that the interested party had conducted infrequent maintenance works from 1986 onwards. After they eventually registered their a non domino disposition, they did not undertake any works for some time. Until 1997, access was through 1 Chamberlain Road. The principal party who took responsibility for maintenance of the subjects from the mid-1990s until the early 2000s was the nursing home gardener, and the garden ground was so planted as to appear as part of the rest of the garden of 1 Chamberlain Road. The interested party had never erected any sign or other indicator to demonstrate its assertion of a right of ownership. Reference was made to some guiding principles set out by Lord Justice Clerk Ross in relation to the operation of Section 1 of the 1973 Act: Hamilton v McIntosh Donald Limited, at pages 321F to 324E. It was submitted that at its highest, the interested party’s possession had been irregular and sporadic. There was no evidence of anything done openly to indicate to others that they asserted a right of ownership. Maintenance which had commenced prior to recording the 1989 disposition could not be said to amount to an assertion of ownership, particularly considering that the interested party sometimes maintained ground which it did not own. The necessary mental element of possession was lacking. The irregular presence of members of the public, of which there was in any event a lack of satisfactory evidence, could not amount to civil possession by the interested party.

In our opinion, there was open, peaceable and uninterrupted possession by the interested party, founded on and following the recording on 3 November 1989 of the a non domino disposition, which was clearly habile to constitute title as owners of the subjects, for a continuous period of at least 10 years. In reaching this view, we have been mindful of the guidance by the Lord Justice Clerk in Hamilton v McIntosh Donald Ltd. In particular, the acts relied upon must have been clearly and unequivocally referable to ownership, and it must be established, as a matter of degree, that the possession has been truly continuous and not merely spasmodic or sporadic. However, the type of acts which may be relied on depend on the nature of the land. It is relevant whether there is any competing claim or adverse acts of possession.

We do not consider that the interested party can rely, in relation to this issue, on such possession, if any, as they exercised after the appellants took entry to 1 Chamberlain Road in March 2004. Although we did not receive any submission on this, we doubt whether prescription can run after registration of the interest (without exclusion of indemnity) of another party as owners, having regard to section 3 of the Act. In any event, by this time there was of course a competing possession and the evidence of the interested party’s possession after the appellants took entry could not, we think, support prescriptive possession. Further, while we think it likely that employees of the interested party did carry out some maintenance at the subjects during and after 2002, we do not regard the evidence as having established the extent of this. There were no other suggested acts of possession during this later period. We therefore consider that we can only safely take account, in relation to the issue of the interested party’s prescriptive possession, of the period up until the end of 2001.

We refer to our findings in fact. We do not accept the appellants’ characterization of the interested party’s actings as, at most, infrequent maintenance. On the basis of the evidence of Mr Temple, Mr Pringle, Mr Shields and Mr Doig (in a written statement accepted as evidence and not challenged, clearly vouching maintenance carried out from an early stage, well before the regular maintenance cycle spoken to by Mr Shields), we are satisfied that, having already had some involvement, the council, after they took the title in late 1989 and at least until 2002, through its employees, firstly, put and kept the subjects in repair and substantially improved and refurbished them, by landscaping, planting, replacing the door into the tomb and installing a gate providing direct access from the street, and, secondly, maintained them. The nature of the subjects was such that one could not reasonably expect any different or higher degree of possession.

We do not consider that the interested party can rely on emergency repairs, whether before or after the 1989 disposition. These clearly started on the basis of exercise of the interested party’s statutory powers in relation to the property of others, and any repairs in that category after November 1989 should be excluded as possibly similarly referable. There do, however, appear to have been repairs of a less drastic nature, for example to the hinges of the wooden door into the tomb. Much more significantly, we find it established on the evidence that the interested party took responsibility for, and actually carried out, maintenance of the subjects from around 1989, if not earlier, onwards. The written evidence of Mr Doig to this effect was unchallenged, and Mr Shield took the story on, vouched by relevant records, from 1996, when maintenance was placed on a regular maintenance contract cycle which, on the evidence, probably involved around 7 or 8 visits by a maintenance squad each year. Mr MacColl submitted that as this had started before 1989 it could not be relied on. We disagree. It seems to us that it was clearly referable to the decision to take the subjects, initially the tomb and subsequently also the tomb garden, into the council’s ownership. That being the case, we see no reason why it should not be relevant during the period after that formal step was eventually taken.

In addition to the maintenance, the interested party clearly planned (albeit over a painfully long period) and carried through a substantial programme of improvement of the subjects, at the culmination of which they held, on the subjects, an opening ceremony which proceeded on the basis that they were the owners.

We do not, however, rely on the actual visits by members of the public to the subjects as possessory acts on behalf of the interested party. The evidence, although it might have been clearer, does seem to us to show that the subjects were used quite a lot as a stopping and resting place, a quiet place to sit and relax, by local, particularly elderly, residents. We are inclined to think that such use of such subjects might be capable in some circumstances of amounting to relevant civil possession, but in this case do not consider that to have been established. We accept that the subjects could be viewed as simply part of the nursing home grounds, and until 1997 were accessible only through the nursing home garden. Had there been a sign at the entrance to the subjects making clear the council’s ownership, from which a licence by the interested party to members of the public to enter might have been inferred, that might have been sufficient. There was, however, nothing to indicate the council’s involvement until the plaque was unveiled in 1999, and even this was inside the tomb, whereas our impression was that at least most members of the public resorted to the tomb garden without looking inside the tomb itself. There seems to us to be an insufficient basis for counting this as possession by the interested party. It should be noted, however, that such resort by the public is, in relation to subjects of this nature, entirely consistent with the local authority’s claim of ownership.

The oral and documentary evidence seems to us to make it clear, certainly on a balance of probabilities, that the interested party’s involvement which we identify as relevant was unequivocally referable to the assertion of ownership. Theoretically, of course, it might have been otherwise. It might have been on the basis that the land belonged to someone else (the nursing home owner of course being the likely such person). The documentation does show that for a period prior to taking the disposition in their favour officers of the interested party held the view that the tomb garden belonged to the nursing home, but by November 1986 solicitors for the nursing home were clearly acknowledging that the access area to the tomb was “over land, adjacent to their own” (Production IP25) and the overwhelming picture thereafter is of officers of the council, as well as the nursing home owners, proceeding on the basis that the council became owners. The various actions they took were (with the exception of the donation of a bench, and possibly one or two replacement plants, by the amenity association) at the council’s expense. The evidence, which we accept, was that it would be highly unlikely that a local authority would directly carry out work at its expense on others’ land, certainly without some agreement formalising such an arrangement. Such assistance to owners would, we were told, be far more likely to take the form of a grant towards expenditure. That position is not so strong in relation to gardening maintenance, because, as Production App127a vouches, ‘Garden Aid’ in this form is sometimes available to the elderly, but there is nothing to suggest that here. We do not think that anyone aware of all the activity, comprising both improvements and maintenance, at the subjects by the interested party could reasonably think that the council would gratuitously undertake all this expenditure for the benefit of the owners of a commercial undertaking. Recognising, therefore, that it is the action, and not the views of the parties involved, which counts, we find it established that the council’s actings were clearly and unequivocally referable to their assertion of ownership rather than some lesser form of involvement. It is true that the minutes produced of two meetings to discuss landscaping proposals in 1995 read as if the plans were being developed on a sort of partnership basis with the amenity association and the nursing home owners, but it is very clear on the evidence as a whole that both of these parties all along understood that the council owned the subjects and that their action proceeded on that basis. The actings of the nursing home owner, Mrs Campbell, during this period, involving co-operation and assistance but no question of having any ownership rights or responsibility, and also of the amenity association, whose chairman, for example, appears to have drafted the wording on the plaque which narrated the council’s ownership and which was publicly unveiled at the opening ceremony in 1999 (Apps121), point clearly that way. The theoretical possibility that the actings which we consider relevant might be referable to something other than ownership by the interested party has, in our view, been negatived by the evidence.

We have not ignored that there are some adminicles of evidence which point the other way. In particular, there is evidence of some gardening activity within the tomb garden by the nursing home gardener and also by keen members of the local amenity association. Mr John Campbell (not connected with the nursing home owner) gave evidence of having seen the nursing home gardener tending to plants in the tomb garden. Mr Campbell visited a resident in the nursing home at least weekly between 1996 and 2002. He is apparently acquainted with the appellants but we were entirely satisfied that his evidence was objective and honest. Closely questioned on this particular matter (which was the reason why he was called to give oral evidence having given a written statement which was otherwise not challenged), he was clear in his recollection of having seen this and, from his evidence, cannot have mistaken the council’s gardeners for the nursing home gardener or the location. We accordingly accept this evidence. The question is how far it went. It related to a period, some way in the past, during which Mr Campbell had no reason at all to think the matter of significance. The evidence did not, as we understand it, relate to any gardening within the tomb, where the council’s employees undertook some quite heavy work, cutting back ivy and brambles. We also did not have the impression that Mr Campbell saw the gardener in the tomb garden with any great frequency, merely that he had a clear recollection of having seen the gardener there. What he specifically recalled was some pruning of bushes in front of the tomb. As we have said, the tomb garden, although there was some degree of separation (at most, apparently, some very low railing with a gap to allow access through), could be regarded physically as part of the nursing home front garden. We think it can be taken that there were at least occasions when the nursing home gardener trimmed shrubs or plants, perhaps to preserve a unified appearance. There were, for example, shrubs along the outside of the west wall of the tomb, on any view within the garden of 1 Chamberlain Road, and it would be natural to go on round to the south, front, wall of the tomb. There also seems to have been some gardening by members of the amenity association. The evidence, however, is that the council took on the maintenance responsibility, including heavier work. There is no evidence of the nursing home taking on this responsibility: quite the contrary, they were aware of the council having done so. At a meeting in November 1995, it was indicated that the amenity association could not undertake future maintenance of the garden. There appears to have been consideration of involving another voluntary body, the Spastics Association, but Mr Shields spoke to the introduction of the cyclical maintenance programme in January 1996. All of this was, in our view, clearly on the basis that the council had taken ownership of this land. There were suggestions of the odd visit by the council squad having been missed and one or two longer periods of neglect, but overall we are satisfied that maintenance was taken on and carried through by the interested party, from about 1990 or earlier on an occasional basis, and from 1996 until at least the end of 2001 on a regular maintenance cycle.

We do think it clear that both the maintenance and the improvements were carried out openly. For example, Council vans were parked in the driveway of the nursing home with the owner’s permission. Council minutes record the position, which was clear in a series of meetings with the nursing home owner and local residents. The opening ceremony was clear, and after it a plaque within the property advertised the ownership position. There was plenty of opportunity between 1989 and 2004 for the nursing home owners (or anyone else) to challenge the council’s ownership, but the evidence was that not only did they not do that but, to the contrary, they knew and accepted that the council owned this property.

Taking the maintenance together with the series of capital works, and having regard to the nature of the subjects, in our opinion the interested party’s possession can properly be regarded as continuous.

We accordingly accept that the interested party’s title had been fortified by prescriptive possession.

(ii) Were the appellants ‘a proprietor in possession’?

A central feature of the scheme of the 1979 Act is that the power of the Keeper to rectify inaccuracy is considerably restricted if registration “would prejudice a proprietor in possession”. The Keeper’s position on this issue was neutral: as the productions appear to reveal, he made some investigation after he was asked to rectify and proceeded on the assumption that the appellants were in possession, with the result that he could only defend rectification on the basis of establishing carelessness, but he did not take up a position on the appellants’ possession in these proceedings.

However, the interested party did take issue with the appellants on possession, and indeed claimed themselves to have continued in possession of the subjects even after the appellants took entry. They did accept that the appellants as registered proprietors were ‘a proprietor’ for the purposes of section 9, and also that the appellants would be prejudiced, so that we did not require to consider these possible issues.

If the interested party’s position were upheld, the appeal would fail because the Keeper would then have been entitled to rectify the inaccuracy without further question.

On the appellants’ behalf, Mr MacColl submitted that they took up occupation of the whole subjects purchased by them, including the tomb and tomb garden, upon taking entry in March 2004, although they did not start to live there until August 2005 when their refurbishment works were completed. In the earlier period, their workmen made use of the tomb garden during breaks; the appellants regularly went into the subjects to tidy up and conduct maintenance; and their children and friends played there. After they actually moved in, the appellants fitted a lock to the tomb; after discovering a stranger in their garden, they installed trees and fences and had the gate to the street closed. They challenged the right of other persons to be present on the subjects. Their applications for planning permission were also clear assertions of their right as proprietors. There was no contrary exercise of possession by anyone else between March 2004 and July 2006, the date of the decision to rectify.

Mr Artis submitted that the evidence of possession by the appellants was slight, and it was a difficulty for them that at the relevant time, members of the public could and did also use the subjects. Use by the appellants’ builders of the tomb garden to take their lunch was neutral. The appellants’ awareness from April 2004 of the plaque indicating council ownership cast doubt over the appellants having the requisite mental element, and there was room for doubt about Mrs McCoach’s belief that the subjects were within her property. Their need to erect barriers was strong evidence that before that they did not have exclusive possession, and the extent of public protest also demonstrated the extent to which the public had enjoyed access. This was attributable to council possession. The tomb garden was separated from the garden of 1 Chamberlain road at this time by a low fence. Although Mr Shields had spoken to a gap in council maintenance work, he thought that the work had continued between September 2003 and 2005. Once the matter was in dispute, the council had refrained from entering until the more recent arrangement to open the tomb garden pending resolution of the dispute.

In Kaur v Singh, the Inner House of the Court of Session was of the opinion that in this context the possession required for a proprietor to be ‘in possession’ is actual possession of the land or other heritable subjects rather than possession of the particular legal interest. The application of the test in relation to ownership of a disputed area which is the subject of an ‘inaccuracy’ in the Land Register was considered further, again by the Inner House, and also by the Tribunal, in Safeway Stores plc v Tesco Stores Ltd, which is the only other case of this kind in which the Tribunal has had to consider evidence and submissions, albeit in very different factual circumstances. Lord Hamilton (as he then was) gave this guidance at para 77:-

“In my view it is necessary, in the circumstances of this case, to make some attempt to divine what the legislature had in mind by a proprietor ‘in possession’ who ex hypothesi does not ‘truly’ have the right accorded to him in the register but whose possession (and registered proprietorship) is nonetheless, as a matter of policy, not to be disturbed. In my view the term ‘in possession’ in this statutory context imports some significant element of physical control, combined with the relevant intent; it suggests actual use or enjoyment, to a more than minimal extent, of the subjects in question as one’s own. It is a ‘proprietor’ who has, on the faith of the register, had such enjoyment or use who is protected against rectification. A ‘proprietor’ who had not had such enjoyment or use is not so protected and may require to seek his remedy, if any, in the form of indemnity. Where the issue of possession relates only to part of registered subjects, the matter for determination will be whether the proprietor is ‘in possession’ of that part, either directly itself or as an integral element of the registered subjects viewed as a whole. The existence of physical features on the ground, including natural physical boundaries, and the activities of the ‘proprietor’ within or beyond such features may be material to what inference may properly be drawn as to the extent of his possession.”

It is no doubt normal where issue is taken on this point for the ‘true’ owner to dispute the proprietor’s possession on the basis of his own involvement with the subjects. Although the issue is whether the registered proprietor was ‘in possession’, the parties’ competing claims on possession will inevitably have to be considered.

In Safeway, at para 80, Lord Hamilton considered the appropriate time at which the issue fell to be determined, and indicated that, while the question of rectification had been formally raised, and decided, on two dates in October 1999:-

“It is clear, however, that the issue of possession should not be looked at only as at October 1999 but over an appropriate tract of time preceding that month.”

The appropriate period would appear to depend on the facts and circumstances, including the nature of the disputed subjects. The question is whether, in the particular circumstances of the case, the registered proprietor has done enough to be regarded as being in possession during this period. Since possession once established can continue animo solo, this may include consideration of activity before the beginning of the period. In this case, therefore, it seems appropriate to look at events from the date when the appellants formally took entry to 1 Chamberlain Road on 18 March 2004 onwards. There would appear to have been three broad phases: from March 2004 to August 2005, during which period the appellants, although clearly in possession of 1 Chamberlain Road, had not actually moved in to live there but were having extensive conversion work (not involving the subjects) carried out (‘phase one’); from August to November 2005, after they started living there, when it can be said that they encountered for the first time, and began taking steps to deal with, the issue of ‘intrusion’, as they saw it, on their property by persons taking or wishing to take access to the subjects (‘phase two’); and from December 2005 onwards, when it can be said that issue was joined (‘phase three’). During phase three, after the appellants had erected barriers excluding others from the subjects, there was first a period when no-one else had access and then, after August 2006, a period when, pending final resolution, the interested party was, as it were, allowed back in. Neither of these periods in phase three assists in resolving this issue.

In general, we note that the appellants rely on a variety of activities, which might be divided very broadly into two categories, viz. actual occupation and use of the subjects on the one hand and assertions of possession on the other. We require to consider all of these, having regard to the slightly unusual nature of the subjects, before reaching a conclusion whether, on a balance of probabilities, the appellants have established that they were in the circumstances ‘in possession’ within the meaning of Section 9(3)(a). We do not, however, consider that activity away from the subjects in relation to applications for planning permission, is relevant (c.f. Safeway, per, Lord Hamilton at para 82).

Some activities may amount to no more than assertions of a party’s position in the dispute (the so-called ‘tennis match’). Mr MacColl submitted that the act of closing the subjects from the use of others could amount to an assertion of possession on which reliance could be placed. We accept this but consider that it is always a question of facts and circumstances what reliance should properly be placed on it. For example, it appears to us that such an act may not assist a claim to be ‘in possession’ if it is immediately, civilly, resisted. If the registered owner of an ‘overlap area’ sets about erecting a fence or barrier to exclude others from the subjects, the neighbouring (ex hypothesi ‘true’) owner might very well not physically resist or try to remove the fence but instead immediately object and follow up with an application to the Keeper for rectification. There may of course be other activities and other circumstances to consider, but in isolation such an act by the registered proprietor to exclude others, being immediately and appropriately objected to, would not seem to us to advance the claim to be a proprietor in possession. The authority relied on in this connection by Mr MacColl, Wallace v Police Commissioners of Dundee, involved a very different situation in relation to an attempt to establish a right of way by 40 years’ prescriptive possession, the ‘servient’ owner having on occasions over that period locked a gate in the passage in question. In the present case, there seems to us to be quite a complicated situation in relation to establishing possession of these particular subjects by action taken to exclude others.

There is also a question as to the relevance of the presence, if this is established, by members of the public. In relation to the interested party’s claim of prescriptive possession, we considered that this was not inconsistent with the claim, having regard to the nature of the subjects, but did not count towards it. It might be thought that, as the appellants’ claim is to have possessed as private owners, any substantial ‘intrusion’ by members of the public defeats the claim on that basis. Again, however, we think that the position in this particular case is more complicated than that. While the appellants apparently did plan to make their garden, including (as they saw it) the subjects, private, principally by erecting a substantial garden wall with a gate into their driveway, the circumstances made execution of that plan problematic. Accordingly, while the presence of the public on the subjects is a factor to be considered, we do not think it is inconsistent in the particular circumstances of this case with the appellants being the party ‘in possession’. There clearly can be situations in which members of the public may intrude on private property without the owners’ possession being called into question.

We note that possession requires the necessary mental element or animus. In this case, we are satisfied that the appellants acted on the basis of their registered proprietorship and satisfied this element. It might possibly have been suggested that this is qualified by their knowledge of a possible counter claim, particularly after the discovery of the plaque on the subjects. This would in our view be an erroneous approach: the appellants knew that they were registered proprietors and in that situation ‘good faith’ is not a requirement. They acted as owners, as they thought. Indeed, having regard to their registered title, they were correct at the time. Nor is any question of fault (which in any event was not alleged against the appellants themselves) relevant in relation to this issue.

We have not found this an easy issue, for two main reasons: firstly, the nature and physical situation of the subjects; and secondly, the somewhat limited evidence as to the extent of activity at the subjects, at least during phase one, by the appellants, by the interested party and by members of the public. As regards the nature of the subjects, we are satisfied that the boundaries, and in particular the western boundary between the subjects and 1 Chamberlain Road, were clearly delineated on the ground, so that the subjects could be seen as a separate area. Further, there was direct access to the subjects by the entrance from the street created by the interested party in 1999 (until the appellants locked the gate and erected barriers). On the other hand, the subjects could also be seen, and undoubtedly were seen by some, as part of the garden of 1 Chamberlain Road, not unreasonably having regard in particular to the layout of the garden walls. There was the well established direct access through 1 Chamberlain Road. This had for long been the only access and had been retained for the benefit of nursing home residents when the direct access was created. We do not consider that the subjects were an integral element of 1 Chamberlain Road so that they could be possessed merely by possession of that property. However, it would be natural and easy to move from one area to the other. We accept that the appellants did that to some extent, even during ‘phase one’.

We refer to our findings in fact. We are not persuaded on the evidence that the appellants had more than a minimal involvement with the subjects during phase one. They clearly visited their property regularly, although only for quite short periods, and we do accept that they went into the subjects themselves from time to time and did a little bit of light gardening and lifting litter. These activities clearly count, and did not attract any opposition from the ‘true’ owner. We do not consider that their children playing, and their contractors’ workmen sitting eating their lunch, adds much to the appellants’ claim, given that this was at the time a publicly accessible area. It is clear that the appellants were mainly absent, and as the subjects were during this phase entirely accessible to anyone else, it is necessary to consider the extent of such other presence. The evidence of the council maintenance squad’s attendance during phase one is circumstantial. Mr Shields was by this time not directly involved, as he had moved jobs within the department, although his responsibility was such as to involve him in August 2005, after Mrs McCoach wrote to the council, because he went to see her and dealt with the situation which arose. His understanding was that the maintenance work had continued, but it was clearly only intermittent and one consideration on the evidence is that there seem to have been times when the council squad may well have seen the tomb garden, on which others had done light work, superficially tidy and not felt it necessary to go on, or at least to stay for long. There were also periods of neglect. What we do know is that either one or more likely two persons connected with the amenity association, understanding themselves permitted by the council to do light gardening, came after the start of phase two to ask Mrs McCoach if they could do so, and also once, after the appellants had made clear that others were excluded, a council squad arrived and took access, contrary to the arrangement agreed with Mr Shields. It seems likely that these activities were a continuation, or proposed continuation, of what had been happening during phase one. From that evidence, and also from the appellants’ acceptance that it was perfectly possible that the council’s men had been in during phase one, we infer that there was indeed some attendance and work by, or with the authority of, the interested party, during phase one. However, as with the appellants’ activity, on the evidence this can only be regarded as minimal.

During phase one, on the evidence, the subjects remained as publicly accessible as before, and we do think it highly probable that there was continuing use by members of the public, on the basis established through the council’s earlier involvement and development of the subjects. Again, the evidence for this is circumstantial rather than direct, but the fact that when they moved in (phase two) the appellants started to encounter members of the public, is strongly suggestive of it, as is Mr Pringle’s evidence and the evidence of the extent of public upset when access to the subjects was barred.

Given the various pieces of evidence suggesting some presence of all three parties, the fact that the appellants never seem to have been aware of the presence of either the council or the public tends, we think, to support the view that none of the three activities happened very much during phase one.During this phase, therefore, the subjects remained as accessible as before; the appellants’ presence and activities there were minimal; the interested party’s activity was likewise minimal; and there was a regular presence by members of the public, although that also may not have been very frequent.

Phase two presents the different scenario of the appellants, having moved into the house, discovering problems (really of a security nature which, in fairness to them, may well have been their main concern from the outset) and accelerating their intention of establishing their position as owners of the subjects. As we understand it, they started to become aware of the presence of others at the subjects, and also within the front garden (and once even the back garden) of 1 Chamberlain Road. By this stage, they were well aware of the suggestion (erroneous, as they correctly at that time saw it) that the council owned the subjects and were involved in their maintenance. They had visits from one or two local residents indicating that they had council permission to help with gardening and asking if they could continue to do so. There is an evidential question as to whether and when they locked the tomb gate and the gate from the tomb garden into the pavement. We are unsure about the tomb gate, but we did note Mrs McCoach as giving evidence that the gate at the pavement was locked shortly after they moved in to the house, which perhaps fits in with evidence that the local residents who wished to assist with gardening came to ask the appellants about that. The appellants undoubtedly asked some people to leave. They appear to have expedited their formal planning application to erect a full height garden wall, but when that was refused (although an appeal, ultimately unsuccessful, was initiated) they felt it necessary to bar access by planting fast growing leylandii and installing the Heres fencing, moves which attracted local disapproval, adverse publicity and the interested party’s application for rectification.

We do feel, agreeing with Mr Artis, that the final stages of phase two can be seen as indicative of a failure by the appellants to achieve the privacy and complete control of the area which they wished. We think the final erection of barriers is in the category of possessory activity which was immediately civilly resisted and therefore does not go to establishing possession. However, as we have indicated, some public presence is not fatal to a claim of possession. We think that we have to look at what happened earlier in phase two and decide whether, in combination with the activity during phase one, it could be regarded as sufficient to put the appellants in possession.

We have concluded, not without difficulty, that the appellants did just enough to establish that they were ‘in possession’. In addition to the matters already mentioned, they had removed the modern affixed plaque inside the tomb. We understood that they took this step quite early on in the saga. This was the act of an owner. It did not attract any reaction from the ‘true’ owner. The appellants removed other items, viz. the bench with its plaque. At the beginning of phase two, they started asking people to leave, again the action of owners. Significantly, as it seems to us, they locked the gate from the street. That of course did not in the circumstances achieve complete control, but it was a significant act because it ensured that anyone trying to go onto the subjects had to come through the appellants’ land. No doubt people continued to do so, but there is no suggestion of any legal right of access through 1 Chamberlain Road, so this step put it in the appellants’ power legally to control access to the subjects. It may be understandable why it did not attract the immediate opposition which the subsequent barrier attracted, since it was ineffective in fact, but it was nevertheless, in our opinion, an act indicative of the appellants’ possession. All this of course follows on from the appellants’ activity, such as it was, during phase one.

If complete control and exclusion of others were necessary, the appellants did not achieve that until the final act of erecting barriers, which, as we have said, should not count, so they would fail on this issue. However, there must be situations in which others are not completely excluded but the owner is in possession. In the particular circumstances here, we think that by phase two, the period just before rectification was considered, the appellants had taken a sufficient degree of control to satisfy the test. In effect, it might be said, their possession had supplanted that of the interested party, which had been established at an earlier time when there was no competing possession. We have decided that the appellants were in possession, for the purposes of Section 9, when the question of rectification arose. This rectification can, in our opinion, only be upheld if Section 9(3)(a)iii applies.

(iii) Whether the inaccuracy was caused wholly or substantially by the carelessness of the proprietor in possession (Section 9(3)(a)iii)

The onus on this issue clearly rests with the Keeper and the interested party who adopted the Keeper’s case and added some helpful submissions. While full specification may not be required (Wilson v Keeper, at page 276C-D), we think it appropriate to regard the written pleadings as the framework for consideration of this issue. ‘Fraud’ under Section 9(3)(a)iii was not suggested, nor was any case of ‘carelessness’ by the appellants in their own actings advanced. The allegation was of carelessness on the part of Brodies as the appellants’ conveyancing solicitors. The appellants ultimately accepted that any such carelessness, if established, could be imputed to them for the purposes of section 9(3)(a)iii.

The Keeper’s pleadings touch on a number of matters arising from the description in the 1938 Disposition. This should have alerted the agents at least to the need for further enquiry, a fortiori if the description was considered vague and/or ambiguous. The correct inference from the description was that the tomb was excluded. There was a duty to ensure that the description was habile to include the subjects. The inquiries had showed or tended to show an interest in the subjects by the Council. The tomb and memorial garden were unusual features. Given the measurement specified in the description, the agents had a duty to take care to determine the proper extent of the subjects, by measuring, or even by scaling them against the plan; similarly, as regards the area. Comparison of the original Instruments of Sasine for 1 Chamberlain Road and 17 Greenhill Gardens would have revealed that the subjects were not included. Enquiry with the Council’s legal services department would have disclosed the Council’s title, as would a search against the subjects, and specifically the tomb. Further, the fact of maintenance activities having been carried out by the Council should have been disclosed in the application to the Keeper. It was reasonably foreseeable that failure to take all or any of these steps would be likely to lead to the inaccuracy.

The appellants’ response in the pleadings was that Brodies had considered whether the descriptions in the 1938 Disposition and the Instrument of Sasine were habile to include the subjects and properly concluded that they were. They had investigated the extent of actual occupation. They had obtained appropriate reports which did not disclose any competing titles. They had obtained a property description report indicating that the extent of the title matched that shown on the map and included the subjects. They were assured that there was not a competing title. In the light of the other information, there was no need for the solicitors to measure the extent of the subjects. No solicitor acting with ordinary care would have considered it necessary to disclose any additional information, or to make enquiries of the Council’s legal department.

In submission, Mr Sheldon, having suggested that it was clear that the 1938 disposition was not habile to include the tomb or the tomb garden, referred to dicta on the meaning of ‘carelessness’ in Dougbar Properties Limited v The Keeper and Wilson v The Keeper. Hunter v Hanley provided at least a starting point. It would in each case depend on the circumstances and the precise nature of the acts or omissions relied on, and the tests laid down in each case were satisfied. There might be cases in which even if evidence about the conduct of solicitors was equivocal, it might be said of a particular act or omission that it would reasonably foreseeably result in inaccuracy. On the basis of Professor Rennie’s evidence, the Keeper contended for carelessness by the appellants’ solicitors in their examination of title, which any reasonably competent solicitor would have determined not habile, and by failing to measure the frontage. Instructing the PDR did not excuse because it could not produce a positive result. They had failed to examine titles to the neighbouring properties, particularly relating to 17 Greenhill Gardens. They had failed to instruct a title search specifically over the tomb and garden ground, the 1938 Disposition not being habile to include the subjects. They had failed to check the terms of the instruction for the PDR report, particularly as Johnsons’ letter of 8 September 2003 was so obscure. Their reliance on the PDR was misplaced. They had failed to enter information in the Form 1 about the discovery of the plaque and the maintenance of the subjects by the interested party: even if a solicitor of ordinary competence would not have included the information, it was plainly reasonably foreseeable that it would lead to the inaccuracy on the Register.

Mr Artis submitted further that the PDR was an insecure foundation for confidence as to the extent of the title, there being no assurance from Johnsons’ correspondence as to what had been done. Even without measuring the frontage, the title could not have been taken as habile to include the subjects: a straightforward reading of it would not allow a reasonably competent solicitor to abdicate responsibility to Ross Lornie, and would require him to satisfy himself on the frontage measurement and/or the neighbouring title. The care required was for the accuracy of the register, not the interests of the client. The inaccuracy was reasonably foreseeable. In any event, there was circumstantial evidence that the searchers had in fact been provided with a plan, based on the OS map but showing the subjects as included.

In answer on behalf of the appellants, Mr MacColl referred to the same authorities. He submitted that there had to have been negligence, ‘carelessness’ being “a sub-set of negligence” resulting from oversight and inadvertence rather than deliberate consideration: drawing the wrong conclusion following full consideration of the properly available material might fall short of the skill required under the standard of care for negligence but would not be careless. Further, on causation, he submitted that any carelessness had to have been either the only cause of inaccuracy or at least the principal cause, neither of which could be said here because the inaccuracy was caused at least substantially by the carelessness of the Keeper’s employees. There had been no carelessness on behalf of the appellants’ solicitors, who had conducted the transaction to the standard reasonably to be expected of ordinarily competent solicitors: they had applied themselves diligently to the issue of the extent of the title; they reasonably relied upon the PDR supplied by the seller’s solicitors; upon consideration of the title and the PDR, they reached the reasonable view that the title was habile to include and did include the subjects; and they answered the questions on Form 1 to an adequate standard, it being reasonable in the light of their satisfaction as to the extent of the title to take the view that the plaque did not raise any issue of concern.

We turn to consider the law, which we think we can do reasonably briefly as we think ‘carelessness’ must to a large extent depend on the particular circumstances. We should also touch on the law in relation to ‘habile’ titles. There is also an issue as to the correct approach to causation, but we shall consider this later.

There appear to be only the two authoritative dicta to which both sides referred us in relation to ‘carelessness’ under this provision (or Section 12(3)(n), the corresponding provision applicable to claims under the keeper’s indemnity). The dicta take slightly different approaches, and, the cases having taken place around the same time, neither refers to the other. In Wilson v The Keeper, an Extra Division had to consider, amongst other issues, whether a relevant case of carelessness justifying rectification had been set out. The opinion of the court shows that their Lordships considered that the appellants, who were not legally represented, had merely maintained that as something had gone wrong, as evidenced by the inaccuracy itself, it must follow that the proprietor in possession had been negligent. The opinion of the court pointed out the necessity of specifying when carelessness by the proprietor in possession had occurred and what it consisted in. It would also be necessary to set out the standard of care which it was sought to have applied. In that context, the opinion referred to Hunter v Hanley and added:-

“In a matter of the present kind, where any carelessness would apparently have to be on the part of the solicitors rather than the actual proprietor in possession, there would evidently have to be material indicating that the solicitors departed from a usual and normal professional practice or that the alleged failure to discover alleged flaws in the title of the Clyde Port Authority to the subjects they occupied, by tracing the true infeft proprietors back beyond the prescriptive period, was a failure which no professional conveyancer of ordinary skill would have committed if acting with ordinary care”.

In Dougbar Properties Ltd v The Keeper, Lord Macfadyen was considering the possible application of the corresponding provision which might defeat a claim to indemnity, in a situation in which the claimants had taken a registered title knowing of the inaccuracy. In that context, his Lordship observed in relation to ‘carelessness’:-

“I agree with senior counsel for the defender that it is not necessarily helpful to look to the concept of negligence in the law of delict for guidance as to what is meant here by “careless act or omission” … It seems to me that an act or omission may be regarded as careless, within the meaning of sec 12(3)(n) (or for that matter sec 9(3)(a)(iii) or sec 13(4)), if (a) it is one which is reasonably foreseeably likely to result in harm to the interests of the claimant (or in a case under sec 9(3)(a)(iii) result in an inaccuracy in the register) in relation to the property which is the subject of the registered title; and (b) it is open to the claimant (or proprietor in possession) to take some step which will obviate that risk of harm (or that inaccuracy). Because there can in my view only be carelessness where there is reasonable foresight of harm (or of inaccuracy in the register), it is necessary to have regard to the state of knowledge of the claimant (or proprietor in possession) at the time of the alleged careless act or omission … ”

His Lordship, accepting that the necessary state of knowledge was present in that case, went on to consider whether any relevant act or omission was disclosed. He also said:-

“It is not in my view surprising that there is no guidance to be found in the legislation as to what may constitute a careless act or omission. The wide variety of circumstances in which a careless act or omission may be relevant makes the absence of further statutory guidance virtually inevitable … Senior counsel for the defender was in my view right in his submission that what constitutes a careless act or omission is a matter of fact and circumstance.”

In the context, it seems to us that Lord Macfadyen was not ruling out the Hunter v Hanley standard, but rather indicating that it did not assist much in deciding whether the claimant’s conduct, in taking a registered title knowing that it contained an inaccuracy, was properly characterized as an act or omission which could amount to ‘carelessness’ under these provisions.

The competing independent expert opinions in this case were all related to the Hunter v Hanley standard and we do not think that it is an answer to Mr Reid’s opinion based on that standard to hold that a lower standard may apply in this context. On the other hand, the idea of ‘carelessness’ may not necessarily involve all the types of situation, including serious error of judgment following full consideration, which could attract a delictual finding of negligence. To that extent, we accept Mr MacColl’s submission in this area but we do think that two qualifications are appropriate. Firstly, it must be right, as Lord Macfadyen observed, that each case has to be viewed in its own facts and circumstances. Secondly, we think that Mr Artis was correct in his submission that the relevant care is care not for the client’s interest but for the accuracy of the register. The solicitor is not here fulfilling a duty to the client. Rather, the client, acting through the solicitor, is under a duty of care in relation to the application for registration of the title. That duty specifically relates to the accuracy of the register entry: hence the requirement of foreseeability in relation to that matter highlighted by Lord Macfadyen in Dougbar. We see no difficulty in a requirement of foreseeability.

The next matter of law to be briefly noted is in relation to ‘habile’ titles. We do not think that there is any disagreement here. A conveyance may, in relation to the extent of land conveyed, be ambiguous or indefinite. If so, the uncertainty will not invalidate it and it may instead be followed by the requisite period of possession of subjects which can properly be regarded as carried by it. Further, a title can be habile to include an area of land of a different shape from that which might at first appear. Thus, the question, in this case, as to whether the title relied on by the appellants included the subjects, is not answered simply by considering what land the description was intended to cover, and involves asking whether the description could be construed as including the subjects.

We consider next some issues in relation to the factual evidence. We refer to our findings. In relation to this issue, these largely, but not entirely, arise from the documentary evidence. There were, however, gaps in the evidence. None of those involved in the main stage of the conveyancing transaction has given oral evidence. Mrs McCoach’s oral evidence confirmed one important circumstance, viz. that the question as to whether the foundation title could include the subjects was an important issue throughout the negotiations leading to conclusion of the bargain. Unfortunately, however, we did not hear from any of Ms Readie, Mr Clark, Mr Johnson, the searcher in Ross Lornie or the individual or individuals within the Keeper’s office who processed this application. Everyone, including we think Mr Hardie, has in effect required to speculate as to what Brodies actually did, apart from what there is a documentary record of their having done, in the period before Mr Hardie’s involvement. Further, as regards the documentary evidence, the inability to obtain either Johnsons’ or Ross Lornie’s files has led to difficulties in establishing the exact instructions to Ross Lornie in relation to the Property Definition Report and also what these searchers actually did in relation to that report. While the absence of that documentation is not the fault of any of the parties, we must remember that the onus is on the Keeper to establish carelessness.

Brodies’ file was, we understand, all available to the appellants and was then subject to recovery under specification at the instance of the Keeper. During Mr Hardie’s evidence, it transpired that the Notes on Title had not in fact been given up to the Keeper. It became necessary to allow time for a further look to see if there was anything else of relevance. The Notes and one or two other minor items which have not, in the end, been relied on, were then produced. We appear to have everything which bears on this matter, and the appellants have apparently had every opportunity to make evidence from this source available. It will be seen from our findings that, while undoubtedly the issue as to the extent of the title, and whether it included the subjects, occupied quite a lot of time, the only clear evidence of any actual examination of the title simply records the view that the description in the 1938 foundation writ was very old and very, or extremely, vague. Examination of the title is at the heart of this issue. It was pled and submitted that Brodies had carefully examined the title. That might be so in general terms, but on the particular issue which was highlighted, ownership of the tomb and tomb garden, the picture on the evidence appears to be that at the crucial time they did not really themselves consider what the description meant and whether it was habile to include the subjects. Their approach appears to have been to depend and rely on satisfying themselves through the sellers’ solicitors. Their own view of the title appears simply to have been that it was generally vague (which could support the view that it was habile).

As regards instructions to Ross Lornie, we tend, but with no great confidence, to the view that there was a covering letter, which we have not seen, from Johnsons to Ross Lornie. The enclosures with Johnsons’ letter of 11 September contain only one instruction letter, a pro forma instruction, or application, for a Pre-Registration Report, Form 10, i.e. for property and personal searches. Johnsons’ letter of 8 September, obscure as it is, seems to suggest that the searchers were asked for something more than appears on that instruction. We also note that neither the pro forma completed by Johnsons nor the Ordnance Survey plan makes any reference to ‘Ashfield’, whereas the report pages all refer to ‘Ashfield, 1 Chamberlain Road’, which was the heading used by Johnsons in their correspondence. There is certainly another possibility, that Ross Lornie were in the habit of providing a combined product and the one pro forma application which we have seen served as the instruction for both forms of report, but if that was all that there was then the instructions hinted at in the letter of 8 September were not given. The uncertainty itself is of course instructive in relation to the degree of care taken by the purchasing solicitors, who might reasonably be expected to have checked what was being instructed, but we must also consider the submission that it is the view which the solicitors were entitled to take of the reports actually received, rather than what precisely was instructed, which matters.

That brings us to the question what Ross Lornie actually did in arriving at their report, accompanied by an O.S. plan showing the subjects shaded along with the rest of 1 Chamberlain Road, that “the boundaries of the subjects coincide with those on the O.S. map.” It seems to us unlikely that Johnsons shaded in the subjects and therefore likely that Ross Lornie did that. Whether or not they were actually sent the title deed, the 1938 disposition had been identified, so that they would have had access to it. In other words, they probably did create the plan showing the subjects included. We do not, however, know what they were asked to do, or how they did it, or their thinking process. There is, of course, a glaring error of lineal measurement of the southern boundary, as well as an area discrepancy, in this plan. From that we may infer that, for whatever reason, Ross Lornie did not check these measurements.

Professor Rennie accepted that Brodies did not overlook the issue of the extent of the subjects, and that there was no evidence that they were aware of the existence of the interested party’s title. However, his opinion, in outline, was that it was the fundamental duty of the purchasing solicitor to examine the title and see what it disclosed. There was a duty on the solicitor of ordinary competence to ensure that the particular description in the Sasine title was accurately transposed. In his view, the description was not habile to include the subjects. He doubted if the description was properly described as vague. Where there was dispute or doubt, he would have expected detailed analysis. There were too many elements which indicated that the subjects were not included. He described the argument that bounded ‘by the walls of the old tomb’ could relate to something other than the first (west) wall as not rational. Where there was doubt, it would be elementary to check (or have checked) the lineal measurement given. If there was a need to check a measurement, appropriate professional people should be used. Although he considered that the Form 10A (title) report, having been restricted to the subjects in the 1938 Disposition, did not help, we did not understand him to go so far as to suggest that it was careless not to require a specific search against the tomb subject. He did not consider that reliance on the PDR was an answer, title examination being far more important than the result of this report. The normal purpose of a property definition report was to compare one plan with another. The solicitor should have checked that the full description, with instructions to check it against the O.S. map, had been given. Pressed in cross-examination, he did accept that a competent solicitor could take the view that the boundaries in the 1938 deed could be compared with the map, and conceded that the solicitor might be entitled to take the view that the boundary measurement had been compared with the O.S. plan, but still did not accept that in this situation, in the light of this description, it would be reasonable to place reliance on this. The professor did not support the view that the negative reply to Question 3 on Form 1 was careless, but did consider that the answer to question 14 was inadequate, following receipt of the information about the plaque.

The substance of Mr Reid’s opinion to the effect that Brodies were not careless was that in relation to examination of title they were entitled to rely on the Property Definition Report which, he understood, had resolved the previous doubts with regard to the title status of the tomb. Production to them, as purchasing solicitors, of a clear PDR “takes the solicitor, as a matter of ordinary practice, as far as would be expected of him as a solicitor of ordinary skill acting with ordinary care, to pre-check the point in advance of settlement of the transaction”. Mr Reid did accept, with the information as to the measurement discrepancy, that the title was not habile, and also agreed that, on a first reading, it was far more likely that the tomb was excluded, but he did not consider that the relevant part of the description in the 1938 deed was so free from ambiguity as to preclude the view that it was habile. He accepted that a point would be reached in this case where the solicitor should recognise the need to check the frontage measurement, but was of the firm opinion that that had, in effect, been done in the Ross Lornie report and that this entitled Brodies to “relax sufficiently in their consideration of the title and the description in the 1938 deed so as to proceed to application for registration in the ordinary way.” He warned of the danger of hindsight. The Form 10A Report, which could reasonably be considered to cover the tomb area, also provided support. Whatever the position about the instruction for the Property Definition Report, and assuming that Ross Lornie did not simply receive and report on a plan on which the subjects had already been marked, the reasonably competent solicitor was entitled to take the view that the verbal description in the deed had been considered and the boundaries compared with the map, and was not required to form a judgment as to whether the searchers had sufficient competence to carry out that task. He referred, in graphic terms, to the routine nature of property definition reports and their very frequent use, and also said that he did not think that reliance would be placed on a searchers’ report to decide a legal issue. There was always the possibility that the Keeper might find a discrepancy, but if the searchers were “taking a flyer”, that was not the solicitor’s problem. On the basis that the title doubts had been resolved, Mr Reid did not accept that the negative answer to Question 14, following the information about the plaque, amounted to ‘carelessness’: there were a number of possibilities as to the import, in relation to ‘ownership’, of the statement on the plaque, and it was reasonable to treat their prior conclusion on the title as dominant and interpret the plaque as insufficient to displace that. It was not enough to show that some, or even the majority, of solicitors would have reported this matter to the Keeper.

Mr MacColl submitted that one reason for preferring the evidence of Mr Reid to that of Professor Rennie was that the professor was, at times, acting somewhat more as an advocate (cf McTear v Imperial Tobacco Limited, at paras 5.2 to 5.18). We do not accept that. It seems to us that Professor Rennie and Mr Reid each spoke clearly, and entirely properly, to his considered opinions. It is true that the professor’s opinions moved on somewhat in the course of his three written opinions and perhaps, in small degree, during the course of his oral evidence, but the main reason for that was that he was supplied at each stage with more information. We do not think that there is any distinction to be drawn, in relation to the objectiveness of their evidence, between the two conveyancing experts, each of whose evidence commands respect.

There are perhaps two stages to be considered: firstly, the stage up to and including the decision to proceed on the basis that the purchase would include the subjects, which would therefore be included in the application for registration; and secondly, the question (if it adds anything) of the answers to the questions on Form 1.

It seems to us that there were in this case a number of circumstances which called for particular care in putting the appellants’ title before the Keeper for registration, as follows:-

(i) As everyone agreed, the tomb subjects were highly unusual. This is not just an abstract point: when the phrase, “the walls of the old tomb” is under consideration, one may need to think what a tomb physically is. The professional witnesses, including Mr Hardie, agreed that this was a situation requiring particular care and attention.

(ii) There were indications of involvement of another party, the local authority, in maintenance of the subjects.

(iii) The issue as to whether the subjects were included had been highlighted from the outset as one of uncertainty.

(iv) Further, the seller’s solicitors clearly initially held the view that at least the tomb was excluded. It also seems to us that as late as 8 September they were suggesting that the tomb garden also was excluded, because the tomb garden, identified as having been hatched by the seller’s solicitors, was the subject of the consideration in that letter (the implication apparently being that the tomb itself was still regarded as excluded). The third paragraph seems to indicate this view at that stage.

(v) This was to be a first registration of this title, and it involved the addition of a plan. The very fact that the title under consideration was not based on a plan is apparently unusual: Professor Rennie indicated that there would be a plan in 99% of cases; Mr Reid accepted that this was “very frequent”. There was some discussion as to why Brodies decided that a plan would be required, when in fact under the plan-based registration system the Keeper prepares the title plan to be registered. Although the reason was not explained, we do not consider that there was anything in any way sinister in this, i.e. there is no basis for any suggestion of either a deliberate attempt to annex land which had not been in the seller’s title or of any conscious attempt to resolve, or hide, doubt in this way. Mr Reid referred to it as perhaps “belt and braces”, and it seems to us a readily understandable step where there has been an initial question about the extent of the subjects.What it did mean, however, was that the application for registration required care in relation to a title including the subjects: if no plan had been provided, the application would only have been for registration of a title to the subjects described in the 1938 Disposition.

(vi) As well as being based on verbal description rather than a plan, the foundation title did not contain a full bounding description because only one measurement, as well as the overall area, was provided. The Keeper maintained that this made a Property Definition Report impossible. That appears to be technically correct. The primary purpose of a property definition report is to take a plan and compare it with the Ordinance Survey map which, under the Act, is required to be used in the register, so as to enable that to be done. A full bounding description, with all the measurements, may clearly be taken as the equivalent of a plan for this purpose. Something short of that is not. There was, however, evidence, and this was accepted by Professor Rennie, that such reports were sometimes used and relied on by solicitors. We can accept this. There must be situations in which a description, short of a full bounding description, as to the extent of land, can be translated into a plan. However, this was a further feature of this case which called for care.

In these circumstances, this case requires consideration, against that background, of the steps actually taken, on evidence which is in some ways incomplete. It should not be decided by examining the reasonableness of the way in which routine conveyancing transactions proceed. Having said that, we should also beware of applying too high a standard. The issue is whether in the circumstances it has been established, on a balance of probabilities, that the inaccuracy in the registration entry secured by the appellants’ application was caused by any carelessness on the part of their solicitors.

We should also avoid hindsight. It is now clear that there was a glaring discrepancy between the foundation title and the title submitted for registration, but that was not known at the time. It was of course also not known to the purchasing solicitors that the interested party had a title to the subjects or that, as we have found, the interested party had in fact possessed the subjects openly. We cannot help feeling, on the basis of the evidence as to what went before, that the seller herself should have known that, but we accept that the actual information available to the purchasers was limited to information about some possibility of ‘adoption’ for maintenance purposes.

The appellants ask us to focus our attention on reliance on the PDR. We of course have to consider that closely, but it seems to us that the question whether the inaccuracy was caused by any careless act or omission by the solicitors who submitted the application for registration is the broader question as to whether Brodies’ examination of the title was careless. We do not think it was disputed that they were required to examine the title with sufficient care. Indeed, it is submitted on their behalf that they considered whether the title was habile. This involves consideration of their actings up to the point at which, it is clear, they took the decision to proceed on the basis that the subjects were included in the purchase and therefore inevitably to be included in the application for registration.

Mr Reid usefully referred to two levels of examination of the title. This seems a convenient and practical way of approaching this issue, so long as sight is not lost of the overall question. As far as the first level is concerned, it seems to us to emerge clearly enough from the evidence that the view which an ordinarily competent solicitor would take on a reading of the description in the 1938 Disposition of the east boundary was that it was very unlikely to include the subjects. Professor Rennie described the latter view as “preposterous”. Mr Reid did not go so far, but did agree, at least in relation to the tomb, that the view that this was excluded, which on the evidence was the view taken by the selling solicitors before the search reports were received, was “by far the most likely explanation”. We think these views follow from two considerations. Firstly, the description reads as that of a quadrilateral plot, following the recognised way of going round the boundaries. Secondly, in relation to “the walls of the old tomb”, the normal presumption, as everyone agreed, is that these are excluded so that the first wall one came to, i.e. the west wall of the tomb, is on the other side of the boundary, the natural reading spoken to by both Professor Rennie and Mr Reid. A proposition put by Mr Artis, that in relation to an open enclosure with four walls, “the walls” refers to the whole enclosure, leading to the same result, also seems to us to make sense. When considering whether the subjects might be included, we find it difficult to imagine any plausible way in which two of the four walls count but the other two do not.

Second level consideration, according to Mr Reid, would take into consideration that, over the centuries, title descriptions were of varying degrees of accuracy. This would include a view that while the quadrilateral shape was probable, the possibility of a different shape would be kept open, depending, as he put it, on the reality of the situation on the ground. It was therefore within the range of views open to the reasonably competent solicitor to consider that this title was habile to include the subjects. This, however, was subject to the reality on the ground, so that, there being a measurement of the frontage, the need to check the frontage should be recognised. From there, Mr Reid reasoned to the view that in effect that was done when the PDR was considered and relied on.

Unfortunately, there is no record as to what, if any, view Brodies took, other than that this was an extremely vague description, at either the first or the second levels, and we do not feel that we can take anything more from Mr Hardie’s evidence about that. We accept that he was an honest witness, and have considered his evidence on that basis. He said, in the context of Mrs McCoach’s initial query highlighting the issue, that “we would have looked into it as part of the process of examining title.” He himself had not actually examined the title when he took over the transaction (understandably, as the matter was past that stage), but Mr Clark and Ms Readie “would have looked at the title.” He was “confident that someone at Brodies would have noted the title.” He was not able to say, even second hand, that there had been any further actual examination of the title in relation to the issue raised. By contrast, in relation to the issue of the possible competing title, when that was raised by the information received about the plaque, he said that he went back and “specifically investigated” what had been done about that. What we take from carefully reviewing all his evidence is that the title was examined, but not that the specific question whether the description was habile to include the subjects, the issue which had been highlighted, was examined. Rather, the view which was reached as to the extent of the subjects was reached when the Ross Lornie report was received, and on the basis of that rather than any, or any further, consideration by Brodies themselves.

There were other steps which might have avoided the error being made. Two of these might seem obvious but on the evidence their omission cannot be described as careless. Firstly, in relation to investigation of the possibility of a competing title, it seems to us that, in the circumstances, Brodies did satisfy themselves, to the standard of reasonably competent solicitors, that there had been an adequate title search. It is easy after the event to say that a search over the subjects in the 1938 disposition was not going to lead to the interested party’s title, but the application, which Brodies saw, for the title (Form 10) report referred to ‘1 Chamberlain Road’ as well as to the 1938 Disposition. We do not accept that, viewed at the time, this was inadequate. Secondly, while there seems to be quite a lot to be said for the view that the title to 17 Greenhill Gardens could have been looked at along with this title, which should have made clear that the subjects were not within either title, we did not understand Professor Rennie to categorise the omission to do that as careless.

We do note, however, that Brodies did have the current Ordnance Survey plan, showing physical but not title boundaries, available to them. This was sent with Johnsons’ letter of 19 August. Brodies clearly did consider this, taking from it the possibility that the tomb garden was within the title, a possibility which Johnsons appear to have addressed in their letter of 8 September. We would have thought that in the circumstances an obvious step for a conveyancer, at some stage, was to consider the description in the 1938 Disposition along with the Ordnance Survey plan. That would at least have raised questions as to where the “piece of ground part of the said lands of Greenhill” lay, and might also have prompted more specific thought about “the walls of the old tomb”. We accept that Brodies, like many solicitors, do not visit sites, but there appears to have been no enquiry about these matters which, in our view, should and would have presented problems in the way of the view that the subjects could be included in the description.

Thus, we do not find Brodies themselves considering the meaning of the description of the eastern boundary and therefore the essential question whether the description was habile, beyond simply recording that it was very vague.

This looks to us like a careless omission to examine the title under reference to the issue raised. However, the answer which is forcefully argued is that in accepting that the matter was resolved by sight of the PDR, Brodies acted to the standard of the reasonably competent solicitor and were not guilty of any carelessness.

It seems to us that in the circumstances of this case this involves elevating the status of the PDR to something which it was not and abdicating the responsibility of the purchaser to take care that the title submitted for registration would not produce an inaccuracy. There was here a legal issue as to whether the title was habile. The description required skilled interpretation. The purpose of a Property Definition Report is to compare a plan with the Ordnance Survey map to ensure that the subjects can be plotted on the O. S. map. Accepting that it is possible and commonly done, if not technically completely correct, to do that without having a full bounding description is not the same as saying that this can in all cases simply be left to these searchers in the course of routine searches. It is argued that, although they did not follow the normal practice of adjusting the draft instructions to the searchers, and did not see any express instructions to the searchers for the PDR, Brodies were entitled to conclude that the searchers had done the work of interpreting the description. On this basis, however, the searchers may not have had any indication that there was any issue about ownership of the tomb or the tomb garden. They would know nothing, other than what could be seen from the Ordnance Survey map, about the situation on the ground. That map no doubt supports the suggestion that the tomb garden was included, but it is at best neutral as to the ownership status of the tomb.

It is argued that there was more than just the PDR, because Brodies had Johnsons’ letters of 8 and 11 September and also the title search report, together with a copy of the instructions for that. They were told, on the basis of that report, that the local authority “certainly haven’t taken title”. So, as we have said, there was foundation for the view that there was no competing title. That still leaves consideration of the extent of the foundation title relied on. It is that consideration, incumbent on the purchasers as applicants for the registered title, particularly where they were adding a plan, which seems to us to be missing. It might quite reasonably have been deferred, or at least a final view not reached, until after the sellers had provided all the information requested. That might then have taken the form of some enquiry as to how the view had been arrived at that the title was habile to include the subjects, reflecting some consideration of the issue by Brodies themselves. However, in the absence of specific information about the instructions to Ross Lornie for the PDR, there was only Johnsons’ obscure letter of 8 September, with its reference to “running a Property Definition Report to find out why the Ordinance Survey views it just now”. We do not find the sort of examination of the title issue which we think is incumbent in the exercise of this duty of care.

There is in fact some indication in the file that Brodies may not actually have decided that the reports resolved all doubt, but rather reported to the client and sought instructions as to whether the seller’s position was to be accepted. There is a file note of a conversation between Mrs McCoach and Ms Readie on 11 September, but obviously in response to communication of the letter of 8 September rather than the letter of 11 September, in which it is recorded that Mrs McCoach “did mention about contention over the ground being not sufficient to prevent conclusion of Missives.” Then the record of Mr Clark’s discussion with Mrs McCoach, after receipt of the letter of 11 September, indicates, not that Mr Clark reported to her that the doubts had been resolved, but that “we discussed the position regarding the tomb at some length”. If the doubts had been as completely resolved as is suggested, one wonders why a lengthy discussion was required. However, Mrs McCoach in evidence denied this interpretation of events and we are not in a position to reach a view on it. Whether or not it helps to explain why more questions were not asked, the fact is that they were not.

It is argued that Brodies were entitled to rely on the searchers to report if they were unable to carry out a PDR. No doubt that might have been one outcome, but once again it seems to us that it was the responsibility of Brodies as the conveyancers to decide whether, in the circumstances known to them (rather than to the searchers) reliance could be placed on the report received.

We do accept, as Professor Rennie ultimately did, that, since the purpose of a PDR is to plot subjects on the Ordnance Survey map, it was reasonable to believe that the searchers had checked the one linear measurement. We would have expected the solicitors themselves to take the elementary step of scaling it off themselves with a ruler, or if they were not prepared to do that, instructing a surveyor, but we accept that if the allegation is simply that Brodies carelessly failed to carry out that measurement, we could not hold that established. However, the allegation is, as we have said, the wider one of carelessness, in the circumstances, in their examination of the title. In that context, in the circumstances as we have found them, we do not think that reliance on Ross Lornie in relation to the measurement of the frontage provides an answer.

There is no doubt that Brodies gave some thought to the extent of the title. In cases which can be described as routine, particularly of course where the existing title was plan-based, the amount of thought required about the extent of the title will be minimal and it may be acceptable, following a quick glance at the title, simply to go through the process of obtaining the normal searches, in effect relying on the property definition reporters to pick up any difficulty with measurements on the plan. For the reasons which we have explored, however, we do not think that was sufficient by the standards of the reasonably competent solicitor in the circumstances of this case. It seems to us that the evidence of Mr Hardie, and more particularly Mr Reid, and indeed the appellants’ whole position, is predicated on the assumption that Brodies themselves adequately considered the issue which had arisen. We refer again to Mr Reid’s description of the way in which the issue as to whether the title was habile might be considered. We are not suggesting that he described exactly what the reasonably competent solicitor requires to do as a minimum, but we have concluded on the evidence that we can find no consideration of that kind in this case. In other words, we are differing from Mr Reid’s conclusion not because we do not accept his evidence as to reasonable practice, but because on the evidence, and in the circumstances of this case, his assumption that Brodies did themselves adequately consider the issue is not made out. He himself accepted that there could be exceptional situations in which it would not be reasonable to rely on the PDR. In effect, we find this to be a case in which that is the proper conclusion.

We think that the requirement of foreseeability is satisfied. It would seem to us to have been clearly foreseeable in this case that insufficient care in the examination of the title might result in inaccuracy.

We are accordingly satisfied that there was carelessness, in the sense of a careless omission to examine the title adequately, in the circumstances of this case, and not simply an erroneous judgment following careful consideration. In reaching this view, we have not overlooked the evidence that Mrs McCoach herself did some historical research about the tomb, supporting, as she would have it, the idea that it, or at least the tomb garden, was within the grounds of Ashfield House, and there was also reference to planning and listed buildings status. However, apart from some property enquiry documentation supplied for different purposes before settlement, and from which the tomb could be taken to be at 1 Chamberlain Road (which would not resolve the title issue), information about this was not available to Brodies. Further, it has little bearing on the question whether the title was habile. It could have had a bearing on occupational issues, but such issues were not focused in the parties’ submissions which related to the view that the title was habile.

We can deal much more shortly with the additional, or alternative, case of carelessness advanced, in relation to the answers to the questions on Form 1 of the application. There is no dispute that the provision of information with the registration, including the answers given on the form, necessarily plays an important part in the registration process, particularly perhaps at first registration, and that carelessness within the meaning of the provision may be established in relation to the information supplied or answers given on the form.

Here, it should be noted that we have the oral evidence of the responsible solicitor, Mr Hardie, who told us about his judgment on this matter. It should also be noted that although Mr Sheldon maintained this argument in relation to the answer to Question 3, in relation to adverse possession, Professor Rennie did not support the case in relation to that, but Ms Clough did.

It would appear to be necessary in order to apply Section 9(3)(a)iii in relation to information given or replies to questions to consider whether the information or reply was inaccurate and, if so, whether there was ‘carelessness’, before considering the issue as to whether such carelessness caused the inaccuracy. Ms Clough seemed to us to come close to ignoring the question as to whether there was carelessness, on the view that the application is “rather like an insurance form”, as is indeed stated in the Registration of Title Book at page 123. It is easy to see why that analogy is drawn. The application is, in effect, an application for insurance. However, section 9(3)(a)iii requires “carelessness”. In his submissions, Mr Sheldon was addressing carelessness but apparently felt able, on his approach to “carelessness”, to advance this without the support of an independent expert opinion, as discussed above.

In relation to Question 3, on the basis of our finding on prescriptive possession, the statement that there was no person in possession of the subjects or any part of them adversely to the interest of the applicant was inaccurate. We are not, however, satisfied that this answer involved carelessness. On the basis of Professor Rennie’s and Mr Reid’s opinions, and also Mr Hardie’s evidence of his view as to adverse possession on the basis of the information about possible adoption for maintenance purposes, we do not think that we can conclude that this was a careless answer. It is arguable that it was wrong even on the more limited information available to Mr Hardie, but we do not think that this goes as far as carelessness.

We are of the same view on Question 3 even on the basis of the information received about the plaque, which, as it seems to us, raised a question about ownership but not about possession at the relevant time. Again, we do not understand Professor Rennie to have supported the allegation on this basis.

Question 14 is in a different position. Firstly, it appears to follow from our finding of carelessness in the examination of the title that a negative answer to the question whether there were any facts and circumstances material to the right or title of the applicant which had not already been disclosed was both inaccurate and careless. It was inaccurate because the fact that the title had been inadequately examined was clearly material. In effect it was a continuation of the carelessness. So, on this basis, it is simply a consequential finding.

If we had not found carelessness in the earlier conduct of the transaction, i.e. we had accepted that Brodies had adequately examined the title and were entitled to rely on the PDR in answer to the allegation that they should have measured, or had measured, the southern boundary, we would not have been able, on the same evidence, to find carelessness in this answer: the answer may have been inaccurate because of the measurement discrepancies, but there would not have been carelessness. However, the answers were given, or at least certified and submitted, after the new information about the plaque was received. We therefore require to consider whether information that there was within the subjects in respect of which registration was being sought, a notice claiming that the tomb and forecourt, i.e. tomb garden, had been shown by research to be outwith the title deeds of the adjacent properties and that it was an ownerless piece of landlocked ground which in due course the Council had taken into ownership, should have changed the position.

The background was that there had been doubt whether the title could cover these subjects, some information about maintenance by the Council and a question as to whether the Council may have a title to them. The latter question had been dealt with, the property search having failed to disclose the interested party’s title, and we have not found Brodies to have been at fault in relation to that. Mr Hardie specifically satisfied himself on that. On this hypothesis, Brodies had been entitled to rely on the PDR and also on the seller’s position, vouched by the disposition and the obligation undertaken.

The appellants’ argument is that the doubts had been resolved, there was no evidence to contradict the position adopted with regard to the tomb and it was a reasonable exercise of judgment that this information did not have sufficient weight to be regarded as material. We have Mr Hardie’s oral evidence and also the letter of 30 March 2004, which we have summarized in our findings. We have considered the following two passages:-

‘The written description of Ashfield House was not clear with regard to this. The relevant part of the description reads that the boundary is “partly by the walls of the old tomb” However, it does not make it clear whether this is the inner or outer walls.’

‘Another issue might arise here. This is the attitude of the Keeper of the Land Register. In due course your title deeds will be scrutinised and a Land Certificate will be issued. If he agrees with the view that the wording in the verbal description in the older title deeds of Ashfield is sufficiently vague to allow him to conclude that the tomb is within the ownership at Ashfield House then there will be no difficulty … ’

There are competing opinions from Professor Rennie and Mr Reid. Mr Reid indicated that he had often given the same sort of advice to clients about the possibility of the Keeper taking a different view, because that could happen. It did not necessarily mean that there was such doubt as would have to be reported. It is not obligatory, he argued, to report resolved doubts. Many solicitors might have reported this, but it was not negligence on the Hunter v Hanley standard. Nor was it carelessness.

It seems to us that there are two questions here, one about the correct approach in principle and the other about its application in these particular circumstances. In our view, the requirement or duty of care in this context requires consideration by the solicitor, not what the solicitor makes of the new information, but whether the Keeper might regard the information as material and whether its non-disclosure might lead to inaccuracy. We do not question Mr Hardie’s evidence that the new information did not change his (Brodies’) mind, although we would have thought that the indication on the plaque as to ‘ownership’ of the Council, following the reference to research into the titles of the adjoining properties, might have set alarm bills ringing. Mr Hardie accepted in evidence that the information was relevant, but pointed to his reliance on the searchers and on the seller and the clients’ satisfaction with the position. What we do not find is consideration as to whether the Keeper, for his examination of the title, ought to have had that information. Given the extent of the original doubt and the fact that this information turned out to have been on display within the subjects, together with the indications in Mr Hardie’s letter that the question whether the title was habile was a live one, we think that notwithstanding the clear property search this information had to be reported so that the Keeper could be in a position to carry out his investigation on an informed basis. We have concluded in the particular circumstances that even if there was not carelessness at the earlier stage the negative reply to Question 14 was careless.

It is, however, also necessary to consider the issue of causation. Was the inaccuracy “caused wholly or substantially” by the carelessness which we have found?

Whatever might be said about the actings of the seller, the seller’s solicitor, or Ross Lornie, it is abundantly clear, and accepted by the Keeper, that the Keeper’s office must also have been careless. It is possible to view this carelessness with some degree of sympathy in so far as the application did not draw the Keeper’s attention at all to the particular issue whether the foundation title included the tomb and tomb garden. The Keeper indeed, unlike (apparently) Ross Lornie, had a plan, in effect certified by the solicitors, showing the extent of the subjects. However, it was clearly and properly accepted that the Keeper requires not just to process applications but himself to examine the title. We were told that this involves ‘legal settling’ and ‘plans settling’. There should have been a careful examination of the description in the 1938 Disposition to see whether it supported the title proffered, but this cannot have taken place.

Mr MacColl did not, as we understood it, go so far as to submit that Section 9(3)(a)iii cannot be satisfied where it is established that the Keeper was also at fault; or even that it cannot in such a case be satisfied unless there has been a failure to supply the Keeper with all the information which should have been supplied. What he submitted was that in the circumstances of this case, if there was any carelessness by the appellants, the inaccuracy was nevertheless caused at least substantially by the carelessness of the Keeper’s employees and it was that carelessness which led to the inaccuracy being present in the Register. The relevant carelessness had to be causa causans: the Keeper’s checking was the bridge to registration, which had here collapsed, causing the inaccuracy.

Mr Sheldon submitted that ‘substantially’ did not mean ‘principally’, but simply, its natural meaning, a cause of substance or an operative cause. The only competing cause, he said, was negligence by the Keeper, but that cause had to be wholly left out of account. Mr MacColl’s submission that the Keeper’s fault was the only operative cause, the ‘bridge’ to registration, meant that the provision could never apply.

In our opinion, ‘substantial’ in this provision does not mean ‘principal’ or ‘main’. It means a real cause of substance as opposed to something which had no, negligible or only slight causative effect. We do not accept that, since the Keeper’s checking is the last, essential stage, earlier carelessness by the appellants may nopt have a causative effect. We do not, however, see any justification for excluding consideration of the Keeper’s contribution to causing the inaccuracy. It seems possible to figure circumstances in which the applicant might have been careless but the blame lay overwhelmingly with the Keeper. Suppose, for example, in the present case, matters followed the same course (without the complication of the plaque) but the interested party heard about the application and objected, referring to the Disposition in their favour, but the Keeper still registered the applicants as owner of the subjects. The Keeper would have had far more information than the applicants, who might then argue that their contribution was minimal and not to be regarded as a substantial cause.

It seems to us that each of the two episodes of carelessness which we have identified as attributable to the appellants had a causative effect. We feel on the evidence that if Brodies had shown sufficient care in the particular circumstances in considering whether the 1938 Disposition was habile they would in all probability have interpreted it so as to exclude the subjects, or at least realized that it raised questions, so that even on receiving the same PDR they would have made sufficient further enquiries to bring the problem to light. Similarly, if we were wrong on that and the carelessness consisted only in the negative answer to Question 14, we are in no doubt at all that the Keeper would, if information about the plaque been provided, have taken more care in examining the title (very likely including consideration of the neighbouring title) and/or made or required enquiry of the Council which would have revealed the true position.

It seems to us that while the Keeper clearly has an important role in investigating the title, so too does the purchasing solicitor. Here, the solicitors had more information than the Keeper, were familiar with the circumstances and were aware of the particular issue highlighted. They decided to add the plan to the conveyance. Even when the possible contribution of others is considered, their carelessness, on whichever basis established, was a substantial cause of the inaccuracy.

In these circumstances, we have decided that Section 9(3)(a)iii was satisfied in this case, and accordingly that the appeal fails.

(iv) Remedy

Having regard to our decision to refuse the appeal, a decision on remedy is not required. However, we should briefly consider the sharp conflict of submissions on the question whether, if an appeal against a decision to rectify succeeds on its merits, on the basis that none of the grounds set out in Section 9(3)(a) of the Act applies, the Tribunal can competently in effect order the restoration of the original entry in the Register. The appellants argued that if their appeal succeeded, they were entitled to a decision and order to that effect. The Keeper and the interested party deployed a number of arguments against this. They were not simply suggesting, as has been suggested and agreed in some other types of appeal, that the matter should simply be remitted back to the Keeper to consider the position following the Tribunal’s determination. They took up a clear position that restoration of the original entry would be an erroneous outcome and the appellants’ remedy would be limited to compensation under the indemnity provisions. So far as we are aware, the Tribunal has not previously considered this question.

We are inclined to the view that, on a proper interpretation of the Act, the Tribunal can in such a case competently recall or quash the Keeper’s decision and order him to restore the Register to the position it was in prior to the erroneous decision. If that is not the position, an appeal such as this, in which no question of compensation is raised, would be pointless. Further, a central feature of the scheme under the Act would be avoided as the result of an erroneous decision.

It is argued that such an order by the Tribunal would amount to reduction, a remedy not open to this Tribunal. We do not agree: we would be exercising a statutory jurisdiction, not a common law power. Although we accept that this is a self-contained area of law so that the answer to this question is not necessarily to be found by looking in other areas, we make the point that statutory appeal jurisdictions do not necessarily include specific provisions of power to order restoration of the position which was disturbed by the erroneous decision but may effectively lead to that result. We have in mind as analogous situations appeals against the revocation of licences (c.f. Rodenhurst v Chief Constable, Grampian Police) and also appeals against correction by the Assessor, on specified statutory grounds, of errors on the Valuation Roll (Local Government (Scotland) Act 1975, Section 3(2)).

We also note that the Keeper successfully argued against the competency of reduction by judicial review of a register entry, where rectification was the appropriate process, in Foster v The Keeper of the Registers, although we accept that the situation was not precisely the same.

It is further argued that such an order would have the effect of restoring inaccuracy to the Register. It is, however, a central feature of the system that once there has been registration without exclusion of indemnity an inaccuracy cannot normally be rectified to the prejudice of a proprietor in possession, so that on occasions – happily extremely rare - the correct application of the scheme leaves inaccuracy. C.f. M.R.S. Hamilton Ltd v The Keeper, per, L.P. Rodger, at 273B-F. Such would have been the position in the present case if the Keeper had decided – ex hypothesi correctly – that Section 9(3)(a)iii did not apply. It cannot be right that the Keeper can remove inaccuracy by an erroneous decision which cannot be reversed following exercise of the full right of appeal against “anything done or omitted to be done” under the Act. We think it might possibly also be argued that there would actually be inaccuracy, certainly an error, following such an erroneous decision by the Keeper.

We do note that, whereas both the court and the Tribunal are given jurisdiction to order rectification (Section 9(1)), which jurisdiction is commonly invoked in appeals under section 25, there is no express power, upon allowing an appeal, to order the Keeper to restore the entry erroneously rectified. However, there is actaully no express provision as to any remedy where any appeal under Section 25 succeeds. In many cases, it may be recognized that allowing an appeal should not preclude the Keeper from considering further the exercise of a discretion conferred on him by the Act. Section 9(1) accordingly provides in relation to rectification that, while the Keeper has an apparent discretion whether to rectify, the court or Tribunal may in an appropriate case order him to do so. The Keeper has, however, clearly no discretion if there is a proprietor in possession who would be prejudiced and none of the provisions of Section 9(3)(a) applies. There is no room for any further exercise of discretion: the inaccuracy has to stay on the Register. So, given the general considerations which we have mentioned, it may not have been considered necessary to express the power to order the normal result of a successful appeal against an erroneous decision. It has frequently been pointed out that the Act does not spell out all operative aspects of the scheme. As a matter of construction, therefore, in the absence of any express provision as to powers in the exercise of the appeal jurisdiction, we are inclined to think that the breadth of the appeal jurisdiction must mean that the normal consequence of an appeal should follow a successful appeal against a decision that section 9(3)(a)iii applies.

The position of the interested party also does not appear to us to be of any relevance. Ex hypothesi, the inaccuracy being continued, a ‘true owner’ loses title (but may qualify for compensation). It is argued that such an order would itself amount to rectification and would accordingly be incompetent under section 9(3). We are doubtful whether such an argument could ever get off the ground. Quite simply, this is not rectification, but the exercise of an appeal jurisdiction. Even if it was, however, while we have not had full submissions on this, we do not see how the interested party could qualify as ‘a proprietor in possession’. Firstly, appreciating the reference to the indefinite article and the suggestion that there might be more than one proprietor, we are not at all sure that ‘proprietor’ in the particular context could include a former proprietor under a Sasine title whose effect has been removed by the registration of another person’s title without exclusion of indemnity. Secondly, even if so, we do not see how the interested party could be described as ‘in possession’. The successful appeal was necessarily predicated on the appellants being ‘in possession’. It could not be right that the arrangement to allow the interested party back in pending the appeal could have put them in possession for this purpose.

In an open statutory appeal against administrative decision-making, there may well be circumstances when the court would not consider it appropriate simply to reverse the decision. However, we have no more discretion than the Keeper if there is a proprietor in possession who would be prejudiced and none of the grounds under section 9(3)(a) is established. A difficult situation might arise if, with the decision to rectify implemented, a third party had acted in reliance on the Register, presumably before or in ignorance of the pending appeal. Again, however, we do not consider that the effect on the interested party, who obviously knew about the appeal and in any event has not been shown to have acted in reliance on the rectified Register, is of any relevance here. That would be to allow in, by the back door as it were, a consideration which runs counter to the whole scheme, which is that, very exceptionally, the ‘true owner’ loses title.

Decision

For all these reasons, however, we have refused this appeal.

Parties’ submissions mentioned expenses, with the appellants and the Keeper apparently agreeing that as between them, expenses should follow success. Further, there appeared to be agreement that there should be certification of the employment of junior counsel, which the tribunal agrees is clearly appropriate in this case. There was, however, disagreement between the appellants and the interested party on expenses in the event of the appeal failing. Neither, however, gave any reasons, and we do not consider that we can decide this without submissions. In the circumstances, we hope that there can be agreement to deal with expenses, if necessary, on the basis of written submissions. The appellants will first have an opportunity to confirm their position, in particular with reasons why they should not be liable in expenses to the interested party. The other parties will then have an opportunity to respond, although there may be no need for the Keeper to do so.

We conclude by expressing the hope that, while our decision may resolve the position about title, the appellants and the interested party can discuss the practical consequences constructively. The Tribunal made quite strenuous efforts earlier in these proceedings to encourage the parties to resolve their differences by alternative dispute resolution, but clearly they were unable to do so. It appears to us that the appellants now require to recognise that the interested party has the interest, not simply of ownership but as the relevant local authority which wishes to facilitate some resort to this site by a few members of the local community. The interested party, in turn, will no doubt recognize that the appellants, as neighbouring owners, have a real interest in appropriate measures, for example in relation to the configuration of boundary walls or fences, to safeguard, so far as possible, their legitimate interest in the security of their property.