1. This is a motion for expenses by the appellants against the respondent Keeper and, in the alternative, against the interested party, Ms Candusso.
2. This was an appeal under section 25 of the Land Registration (Scotland) Act 1979 against the failure of the Keeper to rectify, under section 9 of the Act, the registered title of the appellants’ neighbour, namely the interested party. In our decision of 26 June 2014 we found that the registered plan of the interested party was partly inaccurate. In particular, the strip of land from “B” as it extends towards “C” should have been bounded by the centre line of the existing fence up to the point where it meets the interested party’s gable wall. The remainder of the registered title is accurate. We refer to our opinion for its terms. The Keeper is preparing an appropriate amended title plan.
3. We received written submissions from all parties. The appellants make the point that they have been substantially successful. They also point out that not only was the registered plan found to be inaccurate, but the Keeper had averred there was “no inaccuracy” in the Land Register. The expenses of the litigation were therefore caused by the Keeper. Alternatively, the interested party should be liable in expenses. She had proceeded with litigation in the Sheriff court on the basis that her title plan was accurate and only accepted there was a problem with the title during the tribunal hearing.
4. The Keeper’s position was that she had taken account of all evidence produced at first registration and that it would have been impossible to produce the title plan from the verbal description in the Sasine title alone, and that the now established boundaries could not have been ascertained from the information provided at first registration. The Keeper did not appear at the hearing.
5. The interested party’s position was that she had been partly successful in that she had successfully resisted the appellants’ case for ownership of the strip from the gable to point “E”. The part of the appeal which had been successful was properly directed against the Keeper for the provision of an inaccurate plan at a time well before she had acquired her property.
6. We think this is a case in which the Keeper requires to bear substantial responsibility for the litigation. At first registration the Keeper chose to follow, in detail, a title plan of poor quality which was described as demonstrative only. The Keeper did not follow the line of the fence, which was mentioned as the boundary in the dispositive clause of the relevant disposition. It must have been the case that the fence was in existence in its correct position at the point of first registration, since it is shown marked on the registered plan. There was no evidence before us to suggest that the fence had ever been moved prior to first registration. So there was no basis for the Keeper not to follow the fence line as the legal boundary.
7. The dispute occurred because the interested party realised she had a registered title in unqualified terms which went beyond the existing boundary feature. Not unnaturally she assumed her title to be correct. The parties came to their properties in good faith, but each had been provided with a differing title. The conditions for litigation were thus created.
8. The Keeper’s error was compounded by averments in her Answers. Paragraph iv states:
“Further averred that the title plan … accurately reflects that legal boundary.”
9. The Keeper withdrew from the forthcoming hearing in terms of a letter of 16 October 2013 sent to the Tribunal. The letter indicated that she was unable to decide matters in the absence of an inaccuracy being demonstrated. Amongst other things, that letter stated:
“In any event the issue before the Tribunal is whether or not there is any inaccuracy in the Register. The Keeper’s position has been stated and there is little to add. It is for this reason no adjustments were made.”
The letter goes on to indicate that the real issue in the case is a dispute about possession in the Sheriff Court.
10. In our view the real issue in the case before us was not about possession. Although there was some evidence of an inversion of possession of a very small part of the strip after the parties were in litigation, the real issue was the correct interpretation of the Sasine titles and the state of the boundary features when the Sasine titles were first executed. Accordingly this is not a case where the Keeper cannot take a decision because the decision requires to be based upon parties’ evidence about possession, where such evidence is not within the Keeper’s knowledge. Here the Keeper had not clearly departed from a position that the registered title was positively accurate. Her assertion in the pleadings required to be challenged by the appellants. Neither the appellants nor the interested party were the first purchasers of the respective plots, and the interested party was not the first registered owner. So those parties were in little better position to know the background to the first registration than the Keeper.
11. Although the appellants were partially successful in that we have not agreed with their claim for the whole strip, our impression is that most of the evidence and background research concerned the issue of the fence line in which the appellants were successful. Accordingly we consider the appellants have been substantially successful.
12. We therefore find the Keeper liable in expenses to the appellants. Accordingly it is not necessary for us to determine the motion for expenses against the interested party.