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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 190
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OPINION OF C J
MacAULAY, Q.C.
(Sitting as a
Temporary Judge)
in the cause
BERISTON LIMITED
Pursuers;
against
DUMBARTON MOTOR
BOAT AND SAILING CLUB AND OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Robertson, Advocate; Morisons, Solicitors
Defenders: Thomson, Advocate; Drummond Miller, Solicitors
15 December 2006
Introduction
[1] In
this action the pursuers seek two remedies.
The first conclusion is a conclusion for decree ordaining the defenders
to remove from an area of ground (the "enclosure") forming part of the Old
Denny Shipyard in Dumbarton. The second
conclusion seeks interdict against the first defenders from entering or
attempting to enter on to the whole area of the Old Denny Shipyard ("the
Subjects").
[2] The
Pursuers aver that they are the heritable proprietors of the Subjects and that
their interest in the Subjects was registered in the Land Register of Scotland
on 13 September 2004. Since then, on 3 February
2006,
the pursuers have granted a Disposition of part of the Subjects to Turnberry
Homes Limited. In relation to the part
of the Subjects retained by them the pursuers aver that as heritable
proprietors they are entitled to peaceable and uninterrupted possession. The defenders admit that the pursuers'
interest in the Subjects was registered in the Land Register of Scotland on 13 September 2004.
[3] The first
defenders are the Dumbarton Motor Boat and Sailing Club ("the Club") and the
known office-bearers of the Club, who are sued as office-bearers and
representatives of the Club, and as individuals. The second to fifth named defenders are
alleged to be persons in occupation of the enclosure. The sixth defenders are designed as "The
Occupiers" and, so far as the pursuers are concerned, are people whose
identities are unknown. Only the second
named first defender, James Gillespie, has entered the action. He is the Chairman of the Club.
[4] The pursuers
go on to aver that the enclosure is now occupied by a number of individuals
whom they believe to be members of the Club.
They do not specify when such occupation took place. However, the second named first defender avers
that the defenders have occupied the enclosure since 1990. The pursuers aver that three large portacabins
and a large steel container have been placed on the enclosure occupied by the
Club and that about 20 boats ranging from small dinghies to a 40 foot motor
cruiser and related equipment have also been placed there. They also aver that the defenders are in
occupation of the enclosure vi aut clam
aut precario.
[5] In
response to these averments the second named first defender admits that the
enclosure is occupied by a number of individuals and he goes on to explain that
this is a fenced enclosure in the northwest section of the Subjects adjoining
the River Leven. He admits that some of
these individuals are members of the Club.
He also admits that within the fenced enclosure there are 4 portacabins,
4 containers and about 40 boats. He avers
that the portacabins are used as Club premises.
He then goes on to aver what represents his defence to the pursuers'
allegation that the defenders are in occupation of the enclosure vi aut claim aut precario. He contends that the enclosure which the
defenders now occupy formed part of the common good of the Burgh of Dumbarton
under a Charter of Confirmation in favour of the Burgh of Dumbarton dated 13 December 1609 and Sasine thereon recorded
in the Register of Sasines on 26 August 1842. His averments go on to contend that the
enclosure was wrongly alienated by the Burgh without the authority of the Court
and that he has title to seek the restoration of the enclosure to the Burgh,
now West Dunbartonshire Council.
[6] The
pleadings go on to disclose that the pursuers have asked the Club and those
associated with it to vacate and clear the enclosure but that the defenders
have remained in possession. That is why
the present action has been raised.
[7] The
action came before me for debate. On
behalf of the second named defender it was argued that the conclusion for
removing was incompetent and that accordingly the pursuers' first conclusion
should be dismissed. The pursuers argued
that the conclusion was competent.
Furthermore it was argued that no relevant or specific defence had been
made out in the second named defender's pleadings and that certain pleas-in-law
ought to be sustained and decree granted in terms of both conclusions.
Defenders' Submissions
[8] At the outset Mr Thomson indicated that only Mr Gillespie
as the Chairman of the Club had entered the process and that only he
was being represented albeit that his position reflected that of the Club. Mr Thomson invited me to sustain the
first plea-in-law for the second named defender challenging the competency of
the pursuers' first conclusion.
[9] The
essence of Mr Thomson's argument was that the Court of Session had no
jurisdiction in relation to the first conclusion because the first conclusion
was a conclusion for removing that was not subsidiary to any other conclusion
and accordingly was within the exclusive jurisdiction of the Sheriff Court. He submitted that in certain circumstances it
would be possible to include a conclusion for removing in an action in the
Court of Session if that conclusion was subsidiary to another conclusion, by
which he meant of lesser importance to a main conclusion. However, he argued that in this action
removal was the crux of the action, and, that being so, the conclusion for
removal could not be said to be subsidiary to any other conclusion.
[10] In
developing his argument Mr Thomson made reference to Mackay, Manual of Practice in the Court of Session
(1893) (at page 120), and McLaren Court
of Session Practice (at page 153).
These texts support the proposition that actions of removing are
excluded from the original jurisdiction of the Court of Session and can only be
instituted in the Sheriff Court. Dobie, Law
and Practice of the Sheriff Courts in Scotland (1948) was also relied upon
in support of that proposition. Mr Thomson
also drew attention to passages in Maxwell, The
Practice of the Court of Session (at pages 100 and 354) to support the
proposition that removing is only competent in the Sheriff Court.
[11] Mr Thomson
also relied on case law to support his position. He referred to Middleton v Booth 1986
SLT 450. He submitted that what was said
by Lord Cowie in that case supported the proposition that the Sheriff Court had exclusive jurisdiction
in actions of removing unless the conclusion for removing was subsidiary to a
declaratory conclusion. Mr Thomson
also referred to Michael v Carruthers 1998 SLT 1179 and in particular
a passage at page 1185 in the Opinion of Lord Hamilton. There, in rejecting the defenders' plea to
the competency of the conclusion for removing in the Court of Session, Lord Hamilton,
following Middleton v Booth, expressed the view that such a
conclusion was competent where the conclusion for removing was subsidiary to a
conclusion which sought a remedy competent to the Court of Session. In that particular case, the conclusion for
removing was preceded by a conclusion for production and reduction.
[12] Mr Thomson
also referred to the Scottish Law Commission Report on Recovery of Possession
of Heritable Property (Scot Law Com No. 118) and, in particular, paragraphs 9.1
and 9.2 where there is some discussion about actions of removing and their exclusion
from the original jurisdiction of the Court of Session. He also drew attention to the decision in Oliver & Son Limited, Petitioners
1999 SLT 1039. That case concerned a
petition presented under Section 46 of the Court of Session Act 1988 for
recovery of property belonging to the petitioners and occupied by a group of
persons whose identities were unknown to the petitioners. Lord Penrose reported the matter to the
Inner House posing the question as to whether a first order could
competently be pronounced on a petition under Section 46 of the 1988 Act
where the identities of the prospective respondents were unknown and where
service in common form could not be effected against them. In the course of his report he also mentioned
that a question arose as to whether a simple action of removing was competent
in the Court of Session. In delivering
the Opinion of the Court the Lord President (Rodger) answered the question
posed by Lord Penrose in the affirmative, and, in so doing, because the
Court was not asked to deal with the issue, and did not require to do so,
declined to deal with the issue of the competency of actions of removing in the
Court of Session.
[13] The
final case referred to by Mr Thomson was Drimsynie Estate Limited v James
Trainer Letham Ramsay [2006] CSOH 46.
In that case Lord Brodie was prepared to proceed on the basis that,
because there was a conclusion for declarator preceding the conclusion for
removing, the action had been competently raised in the Court of Session. He went on to say that, without the
conclusion for declarator, there would have been a very real doubt as to
whether the action was competent in the Court of Session.
[14] In
concluding his submissions Mr Thomson submitted that on a proper reading
of the pursuer's pleadings the conclusion for removing stood alone and was
discreet and could not be regarded as subsidiary to any other conclusion. The crux of the pursuers' action was that
they wanted the defenders removed from the part of the Subjects which they
occupied. In these circumstances he
invited me to sustain the first plea-in-law for the second named defender and
dismiss the pursuers' first conclusion.
He did not challenge the competency of the interdict conclusion.
Submissions
For The Pursuers
Competency
[15] In
responding to the attack based on competency Mr Robertson invited me to
repel the second named defender's first plea-in-law and to hold that the first
conclusion for the Pursuers was competent.
[16] Mr Robertson
submitted that there was no rule of law which excluded an action of removing in
the Court of Session. He argued that the
textbook references relied upon by the second named defender in this case were
of some vintage and that matters had moved on procedurally since then. He referred to Chapter 45A of the Rules of
Court headed "Action of Removing" in support of his position. He also drew attention to the Scottish Law
Commission Report of Recovery of Possession of Heritable Property to support
the view that, although the proposition excluding actions of removing from
heritable property from the original jurisdiction of the Court of Session was
based by McLaren on Sections 34-38 of the Sheriff Courts (Scotland) Act 1907,
in fact the statutory provisions mentioned did not make any explicit statement
excluding the jurisdiction of the Court of Session.
[17] In any
event Mr Robertson argued that this action was not a pure action of
removing. There was also a conclusion
for interdict. He argued that the
conclusion for interdict was an independent one and was not subsidiary to the
conclusion for removal. He submitted
that the conclusion for removing was subsidiary because the interdict sought
went beyond the area of the enclosure occupied by the defenders and related to
the whole of the Subjects. In dealing
with the cases of Middleton v Booth and Michael v Carruthers, Mr Robertson
submitted that the appropriate test was to ask whether or not the conclusion
for removing was ancillary to any other competent conclusion. In support of that submission he drew
attention to the fact that in the Law Commission Report at paragraph 9.2 it is
the word "ancillary" that is used and that in the Court of Session Practice Encyclopaedia at paragraph 2402, again
the suggestion is that the Court of Session has jurisdiction in actions of
removing where removing is sought as ancillary to another conclusion.
Relevancy
[18] Mr Robertson went on to develop his attack on the first named
defender's pleadings. He invited me to
sustain his fourth to seventh pleas-in-law and to grant decree as concluded
for. His fourth plea-in-law attacks the
relevancy and specification of the second named defender's averments in
answer. The fifth, sixth and seventh
pleas-in-law seek to focus that proposition, and in particular to challenge the
relevancy and specification of the second named defender's proposition that the
pursuers are not entitled to possession of the Subjects and the proposition
that the second named defender is entitled to enter the Subjects. The seventh plea-in-law in particular
challenges the relevancy of the second named defender's averments anent the
proposition that he has title to seek the restoration of the enclosure to the
Burgh, now West Dunbartonshire Council.
[19] Mr Robertson
drew attention to the fact that the second named defender has not challenged
the pursuers' title and that it is admitted that the pursuers' interest in the
Subjects has been registered in the Land Register of Scotland.
[20] In
dealing with the defence advanced on Record to the effect that the enclosure
was wrongly alienated by the Burgh without the authority of the Court, Mr Robertson
submitted that these averments were grossly lacking in specification and failed
to provide a relevant defence to the pursuers' unchallenged title. In developing his submissions Mr Robertson
referred to Cockenzie and Port Seaton
Community Council v East Lothian
District Council 1997 SLT 81, East
Lothian District Council v National
Coal Board 1982 SLT 460 and Kirkcaldy
District Council v Burntisland Community
Council 1993 SLT 753. His purpose in
so doing was to highlight that, before the issue raised by the second named defender
could be properly explored, a large number of questions had to be
addressed. For example, the question
might arise in the first place as to the rights of an authority to
alienate. The second named defender
required to demonstrate that the enclosure was indeed inalienable at the
relevant time. Even if it was
inalienable at the relevant time, the question would also have to be asked as
to why a Court would in fact refuse such an application given that a wide
discretion was given to the Court. Mr Robertson
argued that the sparse averments put forward by the second named defender fell
woefully short of providing the necessary detail that would allow the number of
questions that could arise in the circumstances of this case to be
addressed.
Response For
The Pursuers
[21] Mr Thomson
reiterated his position that in dealing with the competency of a conclusion for
removing, subsidiarity was the test. The
suggestion made by Mr Robertson that the interdict sought was wider, he
argued, was a matter of interpretation, and, in any event, at the crux of the pursuers'
action was removing.
[22] In
dealing with the attack on the relevancy and specification of the second named defender's
pleadings Mr Thomson argued that fair notice of the position had been
given. He indicated that the second
named defender is considering taking steps to challenge the pursuers' title in
a separate action seeking rectification of the register. He argued that since the separate action was
required it was inappropriate to subject the present pleadings to the same
degree of scrutiny that might be applied to such an action. In the circumstances he invited me to repel
the pursuers' fourth to seventh pleas-in-law.
Decision
Competency
[23] The first issue to determine is whether the conclusion for
removing is competent in the context of this action.
[24] Neither
counsel considered it necessary to explore the historical development of
actions of removing generally. Before,
me much of the argument centred on whether the test for competency lay in
deciding whether the conclusion for removing was subsidiary or ancillary to the
conclusion for interdict.
[25] The use
of the description "subsidiary" appears first to have been used by Lord Cowie
in Middleton v Booth. In that case the
defender in his counterclaim concluded for a declarator and a warrant for
ejection. He enrolled a motion to ordain
the pursuer to find caution for violent profits. Lord Cowie refused that motion primarily
on the basis that the warrant of ejection sought by the defender was clearly
dependent upon the conclusion for declarator and that the legislation that
provided for caution for violent profits only applied to an action of ejection
"pure and simple" (page 451 I-J).
In dealing with one of the arguments advanced by the pursuer,
Lord Cowie, at page 452 H-J, made the following observations:
"The second of the
additional arguments by counsel for the pursuer was to the effect that, if
counsel for the defender is right in maintaining that the third conclusion of
the counterclaim is a separate action of ejection, then the Court of Session
has no jurisdiction to entertain it, and the motion itself must be
refused.
In my opinion, there is
considerable force in this argument. In McLaren on Court of Session Practice at
page 153, the learned author points out that, since the Sheriff Courts (Scotland) Act 1907, the Sheriff
Courts have exclusive jurisdiction in summary actions of removing. By the same token I am of the opinion that
they also have exclusive jurisdiction in summary actions of ejection. Accordingly on the very construction of his
pleadings which counsel for the defender seeks to put forward as a ground for
the application of the statute of 1594, he, in the same breath, excludes the
jurisdiction of this Court. If, on the
other hand he had argued that the conclusion for ejection was subsidiary to his
declaratory conclusions, this court probably would have had jurisdiction (cf. Rankine
in Leases page 586, under the heading
"3. Decree of Removing"), but the action
then not being a pure action of ejection, the statute of 1594 would not have
applied. Whichever way the matter is
regarded it seems to me that on this ground also the first defender's motion
must be refused".
[26] It is
worthy of note that when Lord Cowie makes these observations he makes
reference to Rankine on Leases (3rd
Edition) at page 586. Under the heading
"Decree of Removing" the learned author explains:
"Where decree of removing is
granted in the Court of Session it must be either in a proceeding under the old
Act of 1555 C.39 - an obsolete remedy of which nothing further need be said -
or in cases where a conclusion for removing follows, is ancillary to, and
carries into practical operation, conclusions for declarator or reduction.
With the charge on such a
decree of removing, the function of the Supreme Court comes to an end. It leaves the ejection to be carried out by
the Judge Ordinary, as in the other cases now to be noticed.
In the Sheriff Court - which in most cases is
the only competent tribunal - decress of removing may be extracted forty eight
hours after the interlocutor is signed".
[27] The
passages I have just quoted appear in a chapter (chapter 21) where the learned
author examines the historical development of actions of removing in Scotland. The Act of 1555 to which he refers was in
fact finally repealed by the Statute Law Revision Act (Scotland) 1964. What is clear from these passages is that the
competency of a conclusion of removing in the Court of Session is periled on it
being consequential upon a preliminary step such as declarator or
reduction. The word "ancillary" is also
used and clearly is meant to indicate that the conclusion for removing is
subordinate to another preliminary conclusion.
That perhaps explains Lord Cowie's use of the description
"subsidiary" when he expresses the view that he did in Middleton v Booth.
[28] In this
context it is helpful to consider the case of Campbell Trustees v O'Neill 1911
SC 188. In that case an issue arose as
to the correct interpretation of the Sheriff Courts (Scotland) Act 1907, and in
particular the meaning of the words "summary ejection" in Section 37 of
that Act. The First Division held that
"summary ejection" in Section 37 was really a summary removing. The importance of that conclusion, as the law
then stood, was that the appeal taken by the tenant to the Court of Session was
incompetent because a summary removing was reviewable only by a
suspension. Lord Johnston produced
the leading Opinion in course of which he explored the history of removing in
Scots Law. In the course of that opinion
he made the following observations (at pages 194-195):
"The only cases in which a
separate application for ejection could be made to the Sheriff Court, were,
first where proceedings for removing have been taken under the Act of 1555 in
the Court of Session, and the pursuer preferred to apply direct to the Sheriff,
in place of taking out letters of ejection;
and, second where the conclusion for removing is merely ancillary to a
declarator of some right in the Court of Session, in which case the
intervention of the Sheriff is called for, and may be obtained just as in the
removing under the Act of 1555. This
latter is still a possible though infrequent case, and is, and I think has
been, for much more than a century, the only case in which a separate
application has been made to the Sheriff for ejection of a tenant or one who
had a right of possession through expired.
Such ejections have not been regarded as falling under the category of
summary ejections in the Sheriff Court. The difference between them and summary
ejections is that as they are merely accessory and executorial, no proceedings
of a judicial character under them was called for, or indeed possible. The Sheriff acts merely as the hand or officer
of the Superior Court - very much as an officer executing a diligence ......
Summary ejection, on the other hand, is a substantive proceeding, which is not
ancillary to a removing, and is applicable in totally different
circumstances. Such ejections, as I have
shewn, are truly summary, in this sense, that they proceed without any initial
warning. But they are not applications
which can be granted de plano. They rest on no warrant of a superior
Court".
[29] One of
the striking aspects of Lord Johnston's description of the law relating to
removings and ejection generally is the critical role played by the Sheriff
Court of the locality even when the conclusion for removing was granted in an
action in the Court of Session. He is at
pains to underline the differences between the application made consequential
upon a decree for removing in the Court of Session to the Sheriff for a warrant
for ejection and the substantive action of summary ejection. Furthermore, it is plain from what he says that
it was only in the situation when a conclusion for removing proceeded under the
1555 Act (by then obsolete) or ancillary to a declarator that the Court of
Session played a role but an incomplete role in the process of ejection. It is clear, in my view, that his description
of the Court of Session's jurisdiction is designed to be exhaustive.
[30] The
Lord President (Dunedin) concurs with
Lord Johnston's analysis and summarises the position (at page 197) in the
following way:
"There could be three
positions so far as an ejection was concerned - they have all been detailed by
Lord Johnston, and I merely repeat them for clearness. There was the case where removing itself was
in the Sheriff Court, and there, if decree were
got, ejection followed as a matter of course always. There was next the case where you had got
decree in an action of removing in the Court of Session - possible but utterly
obsolete for well over one hundred and fifty years, because of the extreme
difficulties of the particular class of notice that you had to give under the
old Act of 1555. And there was the third
class - no doubt rare but not unknown, because I remember a case in my own
practice - where an action of declarator of removing was brought in the Court
of Session against a person who was really a squatter, but where, though decree
was got, there were no operative conclusions for turning the person out, and
you had to go to the Sheriff Court to get the operative decree in the
ejection. Well those are the three
cases, and they exhaust the whole category of ejections, exclusive of the
summary ejection of a squatter".
[31] The
passages to which I have made reference in the Opinions of Lord Johnston
and the Lord President, in my judgment justify the conclusion arrived at
by the learned author of Rankine on
Leases that, so far as Court of Session is concerned its jurisdiction was a
limited one, and essentially dependent upon the existence of another conclusion
as a preliminary to the conclusion for removing.
[32] Historically,
the Court of Session had exclusive jurisdiction in all declaratory actions and
actions of reduction. Until the passing
of the Sheriff Courts (Scotland) Act 1907 the Sheriff Court did not have jurisdiction
in actions of declarator. Section 5(1)
of that Act provided that the jurisdiction of the Sheriff extended to and
included certain actions of declarator.
However, all actions of reduction are still within the exclusive
jurisdiction of the Court of Session. It
follows that prior to the enactment of the 1907 Act, in relation to any action
seeking removing with a preliminary conclusion for declarator, such actions
could not be competently raised in the Sheriff Court. That remains the position if reduction is
sought as a preliminary to removing.
Against that background, resort to the Court of Session was not simply a
matter of choice but mandatory. However,
even where an action containing a conclusion for removing had to be raised in
the Court of Session, in order to give full effect to the decree of removing
pronounced by the Court of Session, it was (and still is) necessary to obtain
letters of ejection from the signet directed to the Sheriff who had
jurisdiction in the area where the property concerned was located. That was (and is) necessary because a Court
of Session decree of removing is not a warrant for diligence.
[33] The
discussion in the preceding paragraphs leads me to make the following
conclusions. Firstly, where reduction is
sought as a preliminary to removing, the action must be raised in the Court of
Session. Secondly, where a declarator is
sought as a preliminary to removing, the Court of Session has concurrent
jurisdiction with the Sheriff Court, but, as is the case where
reduction is sought, the Sheriff Court has to be involved in the
process of ejection. As declaratory
actions may involve important questions relating to heritable rights, there is clear
justification for the availability of Court of Session jurisdiction in respect
of such actions. Thirdly, when the
action is a pure action of removing, there seems little practical sense in such
an action being raised in the Court of Session.
If a Pursuer is sufficiently confident to proceed without the need of a
declarator, then he is proceeding on the basis that his heritable right to
possession is not seriously in issue and to achieve the ultimate conclusion of
ejection the Sheriff Court has in any event to be
involved. Nowadays a pursuer would
proceed by way of summary cause for the recovery of heritable property.
[34] The pursuers
do not have a conclusion in this action in respect of which it could be said
that the conclusion for removing was seeking to carry the consequences of such
a preliminary conclusion into practical operation. It may be the case that a declaratory
conclusion could have been included. It
may be that the thinking was that, against the background of an allegation that
the defenders were in occupation vi aut
clam aut precario, such a conclusion was unnecessary. However, it was the fact that there was a
conclusion for declarator in Drimsynie
Estate Limited v James Trainer
Leatham Ramsay that permitted Lord Brodie to proceed on the basis that
the action in that case had been competently raised in the Court of Session. In a similar way, it was the preliminary
conclusion for production and reduction that persuaded Lord Hamilton in Michael v Carruthers that the conclusion for removing was competent.
[35] Although
I consider that Mr Robertson is correct in saying that Sections 34-38
of the Sheriff Courts Act 1907 do not in terms exclude the jurisdiction of the
Court of Session in actions of removing, nevertheless, for the reasons set out
in the preceding paragraphs, it is clear that, apart from Act of 1555, it has
been long established practice that the Court of Session did not have jurisdiction
in such actions in the absence of a preliminary conclusion for declarator or
reduction. The references in the
standard textbooks such as Mackay and McLaren support the existence of such a
rule. Furthermore, the passage in
Rankine to which I have already made reference and the observations made in Campbell Trustees v O'Neill support the existence of such a rule. That such a rule exists has been at least
implicitly acknowledged in the decisions in Middleton
v Booth and Michael v Carruthers. Had this been a pure action of removing then
it seems to me such an action would not be competent in the Court of
Session. Furthermore as I have already
discussed (paragraph [33]) there is practical sense in the Sheriff Court possessing exclusive
jurisdiction in such actions.
[36] In my
opinion therefore the critical question, when considering the jurisdiction of
the Court of Session, is whether there is a preliminary conclusion that can
invoke its jurisdiction. In this case, although
there is a conclusion for interdict, that conclusion is not pled as a
preliminary step towards removing. In
the context of the pursuer's pleadings the interdict conclusion is designed to
reinforce the conclusion for removing. Mr Robertson
sought solace in the use of the word "ancillary" in the Law Commission Report
and in the Court of Session Practice Encyclopaedia, but for the reasons set out
at paragraph [27], properly understood, an ancillary conclusion in this context
is one that is subordinate to a conclusion that is a preliminary step for a
decree of removing.
[37] Although
the conclusion for interdict may relate to a larger area of ground than that
from which the removal of the defenders is sought, I do not agree with Mr Robertson
that that means the conclusion for removing is the subsidiary conclusion. As I have already discussed, I am of the view
that the real question is whether there is a conclusion being employed as a
preliminary step towards removing and it was not suggested that the conclusion
for interdict played such a role in this case.
[38] I
propose now to consider what effect, if any, Chapter 45A of the Rules of Court
has on this issue. As the Lord President
(Rodger) explained in Oliver & Son, Petitioners,
Chapter 45A was designed to implement certain recommendations made by the
Scottish Law Commission in its report on Recovery of Possession of Heritable
Property, particularly in relation to the removal of unidentified and unlawful
occupants such as trespassers or squatters.
RC45A.1. is in the following terms:
"(1) Subject to paragraph (2), this Chapter
applies only to a conclusion for removing in an action of removing against a
person or persons in possession of heritable property without right or title to
possess the property.
(2) This Chapter shall not apply with
respect to a person who has or had a title or other right to occupy the
heritable property and who has been in continuous occupation since that title
or right is alleged to have come to an end."
[39] RC45A.1.(2)
suggests that Chapter 45A is aimed at squatters and trespassers. If that is correct, then the references in
RC45A.1.(1) to a "conclusion for removing" and "action of removing" are
difficult to understand. Squatters and
trespassers would normally be ousted by an action of ejection - the substantive
remedy alluded to by Lord Johnston in Campbell's
Trustees v O'Neill (see paragraph
[28]). The Sheriff has exclusive
jurisdiction in such actions and nowadays a pursuer would proceed by way of
summary cause for the recovery of heritable property. Be that as it may, and although RC45A.1. makes
reference to an "action of removing" it does not, in my opinion, follow that
that reference is designed to render competent in the Court of Session a pure
action of removing or an action with a conclusion for removing that is not premised
upon another preliminary conclusion such as declarator or reduction. RC45A.1. also refers to "a conclusion for
removing in an action of removing" and that may tend to suggest that the
conclusion for removing does not stand alone.
Furthermore, as it is my view that the Court of Session did not have
jurisdiction in pure actions of removing or actions that did not contain a
conclusion as a preliminary step towards removing, at least since the
disappearance of the act of 1555, an Act of Sederunt such as the Act of
Sederunt (S.I. 1996 No. 2168) that introduced Chapter 45A could not change the
substantive law.
[40] In his
submissions Mr Robertson also drew attention to the notes accompanying
RC45A.1. Whilst these notes suggest that
the "conventional wisdom is that an action of removing without any other
substantive conclusion is not competent in the Court of Session" they also
suggest that "It is accepted that an action with a conclusion for removing is
competent if associated with another conclusion such as interdict". A similar observation is made in the Law
Commission Report at paragraph 9.2. It
may be possible to have a situation where a conclusion for interdict might be
seen as a preliminary step to a conclusion for removing. However, in this present action interdict is
not being sought as a preliminary to removing but rather in order to reinforce
the removing. I would disagree with a
broad preposition that, to invoke the jurisdiction of the Court of Session, it
would be sufficient that a conclusion of removing is "associated with" a
conclusion for interdict if the conclusion for interdict is not a preliminary
to the conclusion for removing.
Relevancy
[41] I have no hesitation in concluding that the second named defender's
averments seeking to challenge the pursuers' heritable right to possess the
enclosure occupied by the defenders are wholly lacking in specification and are
irrelevant. I agree with Mr Robertson
that there is a total lack of fair notice in relation to the second named defender's
contention that the enclosure occupied by the defenders was wrongly alienated
and that he has title to seek the restoration of the enclosure to the Burgh,
now Western Dunbartonshire Council. Under
reference to the cases referred to by Mr Robertson, when dealing with land
that may have been common good land, a number of questions do require to be
addressed. One critical question is
whether the subjects concerned were inalienable and in addressing that question
the question has to be asked whether the subjects fell within the category of
subjects regarded as inalienable.
[42] Even if the answer to that question is in the affirmative, it
is still necessary to determine whether the inalienable quality was attached to
the subjects at the relevant time of disposal.
[43] Even if these hurdles are overcome, as Mr Robertson
correctly submitted, it would still be necessary for the second named defender
in this case to offer to prove that the Court in the exercise of its discretion
would refuse to permit the disposal of common good land. None of these issues have been properly
addressed by the second named defender in his averments.
[44] I think
Mr Thomson realised the difficulties he faced and what his argument
amounted to was that the necessary specification would be offered in due course
in a separate action to be raised by the second named defender. This present action was signetted on 25 February 2005, and I fail to see, if the second
named defender is intending to raise a separate action, why that has not been
done and at the very least the pleadings incorporated brevitatis causa into this action.
Conclusion
[45] My view is that the conclusion for removing is incompetent and
I propose to sustain the first plea-in-law for the second named defender. Mr Robertson, in seeking to have his fourth
to seventh pleas-in-law sustained, invited me to grant decree of removing and
interdict, but for the reasons I have elaborated upon in the course of this
Opinion the conclusion for removing cannot be sustained. However, I am also of the view that no
relevant defence has been pled to challenge the pursuers' right to possess the
enclosure. In presenting his submissions
Mr Robertson did not elaborate upon what the outcome should be if the
first conclusion was incompetent but that there was no relevant defence to the
conclusion seeking interdict. Nor did Mr Thomson
address me on this matter. In the
circumstances I propose to put this case out By Order so that I can be
addressed by parties as to the appropriate disposal of this action in light of
the conclusions that I have arrived at. In
the meantime I shall reserve the question of expenses.
