Sir Archibald Grant (applicant)

The Keeper of the Registers of Scotland (the Keeper)

Claire McAnespie and Lewis Napier (interested parties)

by the Tribunal in relation to submissions on the question of personal bar received in response to its letter of 18 October 2018

1. On 18 October 2018, having concluded our deliberations on the matters debated at the hearing of 29 August, we instructed the Clerk to the Tribunal to write to parties informing them of the decision we had come to (that the land in question belonged to the applicant and that the “relevant date” for the purpose of applying the legislation was 7 December 2014) but, as a result of the evidence heard and the interested parties’ submissions thereon, inviting their written submissions on another matter, viz whether the applicant might now be personally barred by acquiescence from asserting ownership of that land in a question with the interested parties.

2. In response to that invitation the applicant and the interested parties both produced helpful written submissions. The Keeper was not invited to be part of that process because (a) she had not taken an active part in the case hitherto and (b) it was a question solely between the applicant and the interested parties.

3. It is not necessary to set out parties’ submission at length. In brief, the applicant argues (i) that, in the absence of a plea-in-law and relevant supportive averments, the Tribunal is precluded from raising and pursuing this matter at all, since it is one of relevancy, not competency, and, therefore, not pars judicis and (ii) that the doctrine of personal bar by acquiescence is not applicable on the facts of this case anyway. The interested parties, who have not instructed a lawyer to deal with the matter on their behalf but have, obviously, carried out their own research into the law on personal bar, have lodged submissions which seek to show that the requirements of personal bar by acquiescence are met here, but say nothing as to the competency of the Tribunal having raised it at this stage.

4. Having considered these submissions we are persuaded that it would not be proper for us to pursue the matter any further.

5. That is because of the applicant’s agents’ submissions as to the locus of the interested parties in relation to the right of the applicant, as a “person with an interest”, to refer the question of the accuracy of the Register to the Tribunal in terms of sec 82 of the Land Registration etc. (Scotland) Act 2012 and the limited role of the Tribunal itself in relation to what consequences may flow from the Register being found to be inaccurate.

6. Although the applicant’s agents cast the argument in terms of the applicant having an imprescriptible right of ownership which in turn leads to an imprescriptible statutory right to apply to the Tribunal for rectification, it is not, we think, necessary to rely on notions of imprescriptibility. The simple fact is that sec 82 confers on any party with an interest the right to refer questions relating to the accuracy of the Register and, if it finds an inaccuracy, what is needed to rectify that inaccuracy, to the Tribunal and, that having been done, the Tribunal’s task is to determine these questions. If an inaccuracy is found a second question may arise as to whether there is a proprietor in possession who will be prejudiced by rectification. Once that question has been answered, subject to any need to consider any of the issues listed in parts (i), (iii) or (iv) of sec 9(3)(a) of the Land Registration (Scotland) Act 1979, the Tribunal’s role is at an end. If a rectifiable inaccuracy has been found the Keeper will rectify the Register and subsequent questions and issues will be matters for the ordinary courts. It is at that point, say the applicants’ agents, that arguments of personal bar become permissible.

7. We are, therefore, persuaded that the issue of personal bar is not one which we can entertain.

8. That is enough to dispose of the question which we raised in the Clerk’s letter of 18 October but we would also say that we were less persuaded by the applicant’s agents’ submissions as to the Tribunal being precluded from raising the issue of personal bar ex proprio motu because it is a matter of relevancy, not competency or jurisdiction. We shall briefly explain why.

9. The first argument advanced by the applicant’s agents is that personal bar must always be pled as a specific plea-in-law and supported by relevant averments. They rely on the following passage from the Stair Memorial Encyclopaedia of the Laws of Scotland, volume 16, para 1604: “The plea of personal bar requires to be pled by means of a specific plea-in-law with supporting and relevant averments. … Personal bar is an issue which requires to be pled by one of the parties before it can form part of the decision of the court and it is not open to the court to take it up ex proprio motu even under summary cause procedure.”

10. The case cited in the footnote to that passage in the Encyclopaedia is Hamilton District Council v Lennon 1990 SLCT 533 and it may be doubted whether it goes as far as the statement it is said to support. In that case, which was a summary cause action for eviction, the Sheriff raised the issue of personal bar ex proprio motu and proceeded to apply it, dismissing the application, without giving parties the opportunity to be heard. The Sheriff Principal held that it was competent for the Sheriff to have raised the matter himself but that he ought not to have gone further without hearing the parties. On appeal, the Inner House took substantially the same approach as the Sheriff Principal. Only Lord Murray commented on the propriety of the issue being raised ex proprio motu at all and what he said (at 537D) was:

“I make no comment upon the sheriff’s general entitlement to take up ex proprio motu even under summary cause procedure an issue not pled by the parties, beyond expressing doubt about whether this properly extends beyond questions of jurisdiction or competency. But even if one accepts, as the sheriff principal did, that he was so entitled, for the reasons advanced by counsel for the pursuers and summarised by the sheriff principal in his opinion, it was inappropriate to decide this case on the basis of personal bar without hearing parties on the issue.”

11. It may be doubted, therefore, whether the requirement for the matter to be pled is as strict as the applicant’s agents submit, at least in the context of what was summary cause procedure (now simple procedure) in the Sheriff Court and, by extension, in tribunal proceedings where the rules of pleading are not so rigorously enforced.

12. But the applicant’s agents develop the distinction Lord Murray had in mind more broadly. They argue that only matters of competency and jurisdiction are pars judicis. Under reference to Terry v Murray 1947 SC 10, Cadbury Brothers Ltd v Thomas Mabon Ltd 1962 SLT (Sh. Ct.) 28, Royal Bank of Scotland Ltd v Briggs 1982 SLCT (Sh. Ct.) 46 and United Dominions Trust Limited v McDowell 1984 SLT (Sh. Ct.) 10 they argue that relevancy is not pars judicis.

13. These were all undefended Sheriff Court cases in which the sheriff at first instance took it upon himself to scrutinise the pleadings for averments to support the crave in terms of which he was being asked, unopposed, to grant decree.

14. Thus in Terry v Murray the Sheriff restricted the sum to be awarded by way of aliment because the pleadings did not contain averments to justify the amount claimed. On appeal Lord Justice-Clerk Cooper described this examination of the pleadings as something which was “outwith [the sheriff’s] province”.

15. In Cadbury the Sheriff refused decree because of lack of specification of the goods for which payment was sought. On appeal, the Sheriff Principal held that the Sheriff could not dismiss an action as irrelevant for want of specification ex proprio motu and that, in doing so, he had “exceeded the limits of the discretion conferred upon him”.

16. In United Dominions Trust the Sheriff refused decree because he thought the sum sued for was so exorbitant as to be penal and, therefore, incompetent for him to grant. The Sheriff Principal reversed that decision, saying, (at p 15):

“The incompetency which warrants intervention ex proprio motu is in my opinion an incompetency of remedy, expressed in a crave which the court has no power to grant … There is a wide range of defects in a pursuer’s case which can loosely be described as defects of competency: for example, prescription, or a foundation which is unacceptable on some general ground of public policy such as turpis causa or sponsio ludicra. Equally there are many other defects in a pursuer’s case (perhaps plainly and totally destructive of his right, and evident on the face of his pleadings) which the sheriff would rightly feel unable to notice ex proprio motu andwhich the defender must guard against, by entering the action. … In my view the character of jurisdiction and inherent competency going to the roots of the court’s functions and powers, is distinct, and does not extend to other issues.”

17. In Royal Bank of Scotland v Briggs the sheriff required to be addressed by the pursuers’ solicitor on the questions (i) whether a higher rate of interest than the legal rate in force at the time could be craved and granted and (ii) whether it was necessary or appropriate for a sheriff before granting decree in absence to examine the pursuers’ averments to see whether they were relevant and sufficiently specific to support the terms of the crave. Having been addressed, he held that the answer to the first question was “yes” and to the second question “no”. At page 48 he said this:

“[T]he granting of decree in absence is certainly not a merely mechanical process on the part of the sheriff. From an examination of the process he must be able to satisfy himself that the defender is a legal person subject to the jurisdiction of the court, that the remedy craved is one which the court may competently grant, and that the formalities of citation have been duly performed. In my opinion, however, he does not require to go further and consider the relevancy and specification of the pursuers’ averments. The proper time at which to test those matters is after a record has been made up and closed and the proper mode of testing them is by way of debate on a plea stated by a defender. If a defender does not take the steps necessary to invoke such a procedure it is not for the court ex proprio motu to investigate the relevancy, specification and even the merits of a pursuer’s claim.”

18. It is plain that the present case is distinguishable from all of these cases. It is a defended case and it is being litigated in a tribunal, albeit one that operates very much like a court. In raising the issue of personal bar what we were doing was drawing parties’ attention to what, having heard evidence and submissions, seemed to us to be a real issue – perhaps the real issue – in the case so far as the interested parties are concerned. In our view we were entitled to do that and we considered it appropriate to do it as a matter of justice to the unrepresented interested parties.

19. However, now being persuaded, for other reasons, that it is not one which we can entertain, we have issued our judgment on the matters which were before us on 29 August and invited parties’ written submissions as to further procedure in connection with determining the question of proprietorship in possession.