1. This is an appeal under sec 25(1) of the Land Registration (Scotland) Act 1979 (“the 1979 Act”) although it also seems to be intended to include an application for compensation under sec 12 (1)(b) of that Act. The appellant is Iain Holwill. He and his wife, Ann Holwill, were the appellants in an earlier case (LTS/LR/2013/03) in which the Tribunal issued its decision on 7 November 2018. Both cases have to do with an act of the Keeper of the Registers of Scotland (“the Keeper”) when Mr & Mrs Holwill owned a property known as Craigbeg House, Dechmont, Broxburn, West Lothian (“Craigbeg”), in 2010. That act is described below.
2. The present appeal, which was lodged with the Tribunal on 18 June 2019, is self-confessedly “directly linked to appeal LTS/LR/2013/03” and has been met with a plea of res judicata. We heard debate of that plea at Edinburgh on 23 December 2019 when Mr Holwill represented himself and his wife (as an interested party) and Ms Alison Toledo of the Scottish Government’s Legal Directorate appeared for the Keeper.
3. Before we turn to parties’ submissions it is necessary to say something of the facts. As has been said, Mr & Mrs Holwill were formerly owners of Craigbeg. It had a boundary with another property called North Lodge, Craigbinning, Dechmont, which was owned by a Mr & Mrs Clair. An issue arose between Mr & Mrs Holwill and Mr & Mrs Clair as to the boundary between their two properties. This was in 2000 or 2001. An attempt was made to resolve it by entering into a Minute of Agreement and Mutual Disposition (“MAMD”) involving the Holwills, Clairs and the Clydesdale Bank (as heritable creditors). That deed, and the issue it attempted to resolve, are more fully described in the Tribunal’s decision in LTS/LR/2013/03, referred to above.
4. Perhaps imagining that issue to have been resolved, Mr & Mrs Clair then sold North Lodge to a Mr & Mrs Glendinning, who attempted to register the property in the Land Register in reliance on the MAMD. However, the Keeper would not accept that document as a basis for registration because (a) it was a personal agreement, not binding on successors, and (b) she considered that the dispositive parts of the deed did not properly identify the property being disponed. So the boundary position between Craigbeg and North Lodge remained unresolved and the Glendinnings were left without a registered title.
5. What the Keeper said she would accept was an agreement under sec 19 of the 1979 Act (“Agreement as to common boundary”) between Mr & Mrs Glendinning and Mr & Mrs Holwill. By that time, however, Mr & Mrs Holwill were of the view that the MAMD had, in effect, been rescinded (Mr Holwill’s word) and they were not minded to enter into a sec 19 agreement. So a stalemate developed during which, in a letter dated 19 September 2006, the Keeper promised that a land certificate in respect of North Lodge would not be issued to Mr & Mrs Glendinning until the validity of the MAMD had been tested in court or some other remedy to the situation had been found.
6. Notwithstanding that assurance, which was, we understand, repeated more than once, there came a point, in 2009, when the Keeper, after meeting a delegation on behalf of Mr & Mrs Glendinning, but without consulting Mr & Mrs Holwill, changed her mind as to the MAMD and, in effect, chose to accept it as a link in title in relation to the area of land covered by Mr & Mrs Holwill’s Sasine title. A fresh disposition, referring to the MAMD, was granted by Mr & Mrs Clair in favour of the Glendinnings and accepted for registration by the Keeper, who then issued a land certificate in respect of North Lodge in favour of Mr & Mrs Glendinning. Mr & Mrs Holwill got to know of what had happened only when Craigbeg itself was put on the market at the instance of Mr Holwill’s trustee in bankruptcy some time later. That had been preceded by an action of division and sale involving said trustee and Mrs Holwill (as owner of a one-half pro indiviso share) conducted in ignorance of the fact that part of the subjects had been disponed by virtue of the Keeper’s actions.
7. The result of that was that land which had belonged to Mr & Mrs Holwill as a part of Craigbeg on their Sasine title was now registered to Mr & Mrs Glendinning as part of North Lodge and it was in an attempt to rectify that position that application LTS/LR/2013/03 was brought to the Tribunal. As has been said, the Tribunal issued its decision on that application, adverse to Mr & Mrs Holwill, on 7 November 2018. That decision was not appealed and the present application is, in effect, a second attempt at rectification.
For the appellant
8. Since the appeal seemed, on the face of it, to be very similar to the earlier appeal and since we had been favoured with a written Note of Argument by the respondent, we began the hearing by inviting Mr Holwill to identify for us what was new or different about the present application.
9. He submitted that what was new was the question of the Keeper having acted ultra vires in 2010, when the land certificate in favour of Mr & Mrs Glendinning was granted. Her actings were ultra vires because they had not been authorised by Mr & Mrs Holwill, nor by the heritable creditors, nor by any court or tribunal. Instead she had acted in bad faith. What she had done, in effect, was to clandestinely take someone else’s land and give it to a third party. She had had no power to do any such thing. Had it been known to the tribunal in the earlier application that the Keeper had acted ultra vires, it would have come to a different decision.
10. We put it to Mr Holwill that the central issue was the legal effect of the MAMD and that that had been decided by the earlier tribunal, whose decision had not been appealed. He responded that in 2010 the Keeper could not have been aware that in 2018 the Tribunal was going to decide that the MAMD was valid and effective. This was not the way he put it but the point being made was that a decision in 2018 could not clothe what the Keeper had done in 2010 with vires. Had the Keeper told them that she was minded to accept the MAMD and issue a land certificate for North Lodge on the strength of it, he and his wife, and possibly also the heritable creditors, would have taken the matter to court. Instead, after almost ten years of saying she wouldn’t do it, the Keeper had gone ahead and accepted the MAMD without any reference to the true owners of the land or the heritable creditors.
11. Another consequence of this was that Mrs Holwill had needlessly become involved in the litigation referred to, or in some aspect of it to do with the land covered by the MAMD, not knowing that that land was now registered as part of North Lodge. She had, thereby, incurred unnecessary expense for which the Keeper should be liable.
For the respondent
12. We invited Ms Toledo to confine herself to addressing what Mr Holwill had said, already having had the benefit of her written submissions on the general law of res judicata.
13. She submitted that the ultra vires argument was not res noviter. The Keeper’s failure to inform Mr & Mrs Holwill of her intentions could not affect the validity of the MAMD. It was within the Keeper’s power to form a view as to the effect of the MAMD and, having done so, it was within her power to act upon it as she had. It was regrettable that Mr & Mrs Holwill had not been informed and the Keeper had already apologised for that but that failure had no bearing on the validity of what she had done. Moreover there could be no question of Mrs Holwill’s abortive court expenses now being recovered as part of this application. We should uphold the plea of res judicata and dismiss the application with an award of expenses against the appellant.
14. That res judicata is a competent plea in an appeal such as this was expressly recognised in sec 25 itself which, so far as material, read as follows:
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.
(2) Subject to subsections (3) and (4) below, subsection (1) above is without prejudice to any right of recourse under any enactment other than this Act or under any rule of law.
(3) Nothing in subsection (1) above shall enable the taking of an appeal if it is, under the law relating to res judicata, excluded as a result of the exercise of any right of recourse by virtue of subsection (2) above; and nothing in subsection (2) above shall enable the exercise of any right of recourse if it is so excluded as a result of the taking of an appeal under subsection (1) above.
(4) No appeal shall lie under this section, nor shall there be any right of recourse by virtue of this section in respect of a decision of the Keeper under section 2(1)(b) or 11(1) of this Act.”
15. The five requirements of res judicata are conveniently set out in MacPhail, Sheriff Court Practice, 3rd ed at paras 2.105 – 109 and we deal with them in turn.
(i) The prior determination must have been by a competent tribunal
16. That is not in doubt in this appeal, where the prior determination was made by this Tribunal.
(ii) The prior determination must have been made in foro contensio
17. Application LTS/LR/2013/03 was contested to a conclusion, so this requirement is satisfied.
(iii) The subject matter of the two actions must be the same
18. The present appeal is taken against the act of the Keeper in 2010 of “taking possession of part of the title of the subjects [i.e. Craigbeg, by Dechmont, West Lothian EH52 6NB] and incorrectly transfer(ring) the property taken to a third party.” Although it is not spelt out in the application, what the appellant must be asking the Tribunal to do as a result of this allegedly wrongful act of the Keeper, is to hold that the Land Register is inaccurate and order the Keeper to rectify it.
19. LTS/LR/2013/03 began life, in June 2013, also as an appeal under sec 25 of the 1979 Act but was bedevilled for a time by uncertainty as to what the point at issue was, what the Keeper of the Registers was said to have got wrong and what the appellant wanted the Tribunal to do about it.
20. However, as a result of requests for clarity from the Tribunal it eventually became tolerably clear that the matter being complained of was the registration by the Keeper of a title in respect of a neighbouring property, North Lodge, which included land which was, in terms of the underlying Sasine title, part of Craigbeg. Thus, in a response to answers lodged on behalf of the Keeper, in June 2015, the appellants said:
“The purpose of this appeal is to determine that it was inappropriate for the Keeper to issue a warranted title for North Lodge in 2010 having regard to the fact that the Keeper had taken the unwavering position over many years that a registered titled could only be granted following the matter being tested in the courts. The matter was not tested in the court and was issued in a clandestine manner and the Keeper should accordingly be held responsible for the financial losses suffered by the appellants as a result.”
21. A similar formulation was used three months later, in September 2015, where, in response to adjustments made to the Keeper’s pleadings, the appellants said:
“It is reiterated the purpose of this appeal is in respect of the actions of the Keeper issuing a registered title for North Lodge WLN36948 which resulted in the expansion of the historic extent of the North Lodge title … and in particular the Keeper issued the revised title for North Lodge without any contact with the appellants … and remained silent about her actions.”
22. Although by the time the case eventually came to the hearing which was to lead to its dismissal, it had evolved so as to include a claim for compensation under sec 12 of the 1979 Act, it is clear from the (differently constituted) tribunal’s decision that the effect of what the Keeper had done on the accuracy of the Land Register was still the critical issue. That can be seen as early as the last sentence of para  of the decision of 7 November 2018, which reads “The appellants’ position is that land pertaining to Craigbeg House under Sasine titles was included in the North Lodge title at the time of registration, thus rendering the land register inaccurate”.
23. Detail of the reasons why the Keeper was said to be in error in having so acted is given at paras  and  where the tribunal record the appellants’ submissions as being, in part at least,:
“ It was submitted that … the MAMD could not be used as a valid excambion and disposition since it did not identify the land. Nor could it be used as a valid link in title. The document was of a personal nature. It had lapsed on the sale by the Clairs to the Glendinnings.
 The appellants were clearly aggrieved that the Keeper had told them that a land certificate for North Lodge would not be issued without some form of remedial action or court order, but that the Keeper had then proceeded to register the title without reference to themselves.”
24. That the propriety of what the Keeper had done was precisely the point the tribunal which dealt with LTS/LR/2013/03 decided is clear from para  of their decision, where they say:
“ Turning to the question of the accuracy of the land register, it seems to us the central issue is whether the Keeper was correct to register the North Lodge title in favour of Mr and Mrs Glendinning using the MAMD as a link in title, thus completing a conveyance of such land as Mr and Mrs Clair held other than on a recorded deed.”
25. The tribunal then go on to discuss the sub-issues to which that gives rise before deciding the matter in the following terms at para :
“As we have indicated, we consider the MAMD to have been a valid conveyance in the context of a registration of the whole subjects. No argument was presented that the registration process or the underlying disposition was flawed in any particular way. So we conclude that the Keeper was correct, on reflection, to use the MAMD as an unrecorded link in title for the purposes of sec 4 [of the 1979 Act]. The resulting entry in the land register was therefore accurate.”
26. It is clear, therefore, that the subject-matter of that application and this one is the same: the propriety of the Keeper’s decision to grant the land certificate in reliance on the MAMD, or, put another way, whether the Keeper had been entitled to do so.
(iv) The media concludendi must be the same
27. As has been narrated, the only thing which the appellants say is different about the present case is the argument that the Keeper acted ultra vires. Although the words “ultra vires” were not used, that argument was also advanced in the earlier case. Thus, in pleadings (in the first case) lodged with the Tribunal on 24 September 2015 Mr Holwill said “For the Keeper to be entitled to have acted as she did in 2010 her actions require to be judged by reference to the terms of the 79 Act and for that Act to provide her with the necessary authority” and included a plea-in-law which said “The Keeper is not entitled to transfer land from one title to another without consulting the concerned parties.” Thus the need for authority, in the form of a statutory power or the consent of the owners, was put in issue in that case.
28. Paragraph  of the tribunal’s decision suggests that, although put in issue, the matter of the need to consult and obtain authority was not argued. There the tribunal say:
“It is by no means certain that in terms of jurisdiction the Tribunal had oversight under the 1979 Act so as to adjudicate upon whether some obligation existed on the part of the Keeper to inform or consult with a particular party in any particular registration process. The matter does not however appear relevant to the financial claim remaining in this case, and was not argued. As the Keeper points out, the question is whether she was correct to register the North Lodge Subjects in the form she did in 2010.”
29. If it be the case that the need for consultation and authority was not fully argued, that was down to how the appellants presented their case but the fact that this was raised as an issue cannot be doubted. In fact the appellants’ whole complaint, from start to finish, in both cases has been that the Keeper ought not to have done what she did without consulting them or having statutory or judicial authority for her actions. Accordingly we are entirely satisfied that the media concludendi in both cases was the same.
(v) The parties in the two actions must be identical
30. Although LTS/LR/2013/03 was originally raised in the sole name of Mr Holwill, by the time it came to be decided Mrs Holwill had also been made a party to it, as an appellant along with her husband. The Keeper was, of course, as now, the respondent. Mrs K Glendinning (Mr Glendinning having died in the interim) was named as an interested party but seems to have taken no part in the case.
31. The present case has also been raised in the sole name of Mr Holwill and this time his wife is designed as an interested party and there is no mention of anyone else except, of course, The Keeper. Accordingly it can be said that the parties in dispute were the same and the issues decided were issues between them.
32. The five requirements of res judicata having been satisfied, the appeal has been dismissed. It follows that the appellant’s Rule 20 motions of 27 July, 3 August and 15 September 2019 all fall to be refused.
33. Ms Toledo moved for expenses in the event of success. That will be difficult to resist but we have allowed Mr Holwill fourteen days within which to lodge written submissions on that matter.
34. We do not want to leave this case without expressing, as the first tribunal did, considerable sympathy for the appellant. He certainly had a legitimate expectation – because they had been promised it wouldn’t happen – that he and Mrs Holwill would be consulted before a deed to which they were parties was used as a basis for conveying away some of their land. The Keeper has apologised for her failure to tell them of her change of mind and give them the opportunity of making representations as to the validity of the MAMD at that time. However, the validity of that deed as a link in title has now been tested and decided, in the Keeper’s favour. That decision has not been appealed and, on the basis of the foregoing reasoning, the present application is an attempt to circumvent it which falls foul of the rules on res judicata.