NOTE (1)

Alexander James Burr and Another v The Keeper of the Registers of Scotland and Carl Anderson
(Expenses)

[1] In this appeal under Section 25 of the Land Registration (Scotland) Act 1979, the appellants sought rectification of two registered titles, their own and that of the neighbouring owner, Mr Anderson, on the basis that, although there was no overlap of the two titles, the appellants’ title erroneously omitted a strip of land and Mr Anderson’s title erroneously included that strip (“the appeal strip”). Mr Anderson (“the interested party”) did not accept that there was inaccuracy and, further, claimed to be a ‘proprietor in possession’. A hearing, or proof, took place in relation only to the issue of possession. The Tribunal decided that issue in favour of the appellants, leaving the issue of inaccuracy, and therefore the outcome of the appeal, to be resolved by further procedure. Parties have commendably (although apparently only after considerable delay) resolved matters by entering into a ‘Section 19 agreement’ altering the boundary on each title. The appellants seek an award of expenses against the interested party, with sanction for the employment of junior counsel. The interested party opposes. The matter is to be dealt with on the basis of written submissions.

[2] This Note explains why the Tribunal feels it necessary to have more information about the actual outcome of the dispute. On the information presently available the Tribunal of course knows that the appellants succeeded on the issue of possession (and appear to be entitled at least to an award of expenses insofar as occasioned by to that issue) but does not know the outcome of the issue of inaccuracy.

[3] A further slight complication has to be noted, in respect that the interested party made clear that the appeal was only being opposed in relation to part of the appeal strip (“the contested part”). Para 23 of the Tribunal’s Opinion dated 12 November 2010 refers.

[4] There are three theoretical possibilities as to the outcome of this case following the Tribunal’s decision on possession:-

(i) The Section 19 agreement transfers the contested strip out of the interested party’s registered title and into that of the appellants;

(ii) The agreement transfers only part of the contested strip and thus reflects a compromise;

(iii) The agreement transfers none of the contested strip.

Prima facie, if (i) applies, the appellants have had complete success; if (ii) applies, they have had partial success, which might raise an issue as to whether and if so when the interested party made any offer to resolve the appeal on that basis; if (iii) applies, the appellants have effectively in the end failed overall despite their success on the possession issue.

[5] In his submission on expenses, the interested party apparently suggests (ii), although without any elaboration. The appellants have not had an opportunity to respond to that suggestion.

[6] In these circumstances, the Tribunal requests the appellants, if they wish to insist on their motion for all the expenses of the appeal, to furnish a copy of the Section 19 agreement and, in particular of course, the plan and to advise how they say the plan compares with the contested strip; and correspondingly requests the interested party to advise how he says the plan compares with the contested strip. If it is suggested that there was a compromise, information from either side as to any offer to compromise may well affect the outcome on expenses.

[7] Both sides are requested to respond, if so advised, within 21 days of this Note. Responses should be confined to the particular points here raised.