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In the event that Mr Lynch had granted absolute warrandice to the third party, a claim would surely lie under the warrandice notwithstanding that the threat of eviction had been made by a person without a title. Ratio |
It might however be argued that the situation is different where the only ground of challenge to the purchasers title arises from a competing title, and the challenger is not the person holding that title. Ratio |
In most cases, no doubt, the person holding that title will be the only person with any title or interest to challenge the purchasers right to the property, and therefore the only person whose challenge, if resisted, can give rise to liability under the warrandice; and, if a challenge cannot give rise to liability unde... |
Three considerations however support the view that it need not invariably be the case that only a person holding a competing title can effectively challenge the purchasers title and thereby trigger liability under the sellers warrandice. Ratio |
First, it is consistent with the principles stated by Stair and Pothier that the seller should be liable under the warrandice in a case such as the present. Ratio |
On the facts as averred by Mr Morris, there was an unquestionable ground of distress, as RDLs title to the disputed property was unquestionably defective; and the threat of eviction made by JCL, in consequence of that defect, would undoubtedly infer a distress, even if it was necessary for JCL to obtain a conveyance fr... |
RDLs title to the disputed property could properly be described as indefensible. Ratio |
Secondly, as I have explained, the rationale of the laws permitting a purchaser who accedes to a threat of eviction, without any judicial determination, to recover under the warrandice is essentially practical. Ratio |
It reflects the undesirabililty of pointless delay and expense, and pointless litigation, where eviction is ultimately inevitable. Ratio |
Where the title competing with the purchasers title is vested in person A, the fact that the threat of eviction is made by person B does not preclude the possibility that the purchaser may have no realistic alternative but to accede to the threat. Ratio |
In particular, if person B has an unqualified right to demand from person A an immediate transfer of the title vested in him if, for example, person As title is voidable at the instance of person B - then no useful purpose will be served by requiring the purchaser to resist the threat until person B has exercised his r... |
Thirdly, in such a situation, it would be unrealistic, if not perverse, for the law to maintain that the purchaser can rely upon the sellers warrandice if he accedes to a threat by person A, but not by person B, since on the face of things the former has no real interest in threatening eviction, while the latter has an... |
The concept of title, in the context of a title to property, is not however the same as the concept of a title to sue; and it would be a misunderstanding to suppose that only a person who has a title to property can ever have a title to sue to enforce rights in respect of that property. Ratio |
There is a line of authority establishing that there are circumstances in which proceedings may be brought by a person who does not at that time hold the right on which the proceedings are based, provided he has an undoubted entitlement to obtain the right and does so pendente processu. Ratio |
This matter was discussed in the case of Westville Shipping Co Ltd v Abram Steamship Co Ltd 1923 SC (HL) 68, [1923] AC 773, in which the defenders had assigned to the pursuers their rights as the purchasers of a ship under construction. Ratio |
The pursuers had in turn assigned the rights to a third party. Ratio |
Both assignations were voidable on the ground of error. Ratio |
The third party brought proceedings in England against the pursuers to have the second assignation set aside, and the pursuers then brought proceedings in Scotland against the defenders to have the first assignation set aside. Ratio |
The third party subsequently obtained judgment by consent in the English action. Ratio |
The pursuers were held to have had a title to bring the Scottish proceedings notwithstanding the fact that they were not entitled to have the first assignation set aside at the time when the proceedings were commenced, since the second assignation had not at that point been set aside. Ratio |
The matter was most fully considered in the Court of Session by Lord President Clyde, whose opinion was approved in the House of Lords. Ratio |
The Lord President said (1922 SC 571, 583): But the genuine and bona fide character of the English proceedings is not challenged; and, if the pursuers had no good answer to the sub- assignees' action, I cannot see that they were bound to postpone raising action in this court until the rescinding order was actually pron... |
All that actually stood between them and reinstatement in the benefits of the builders' contract was the pronouncement of this order which the sub-assignees were moving the English court to make, and which, if the above stated hypothesis is correct, the pursuers had no means of resisting. Ratio |
I think in these circumstances the pursuers may properly be regarded as having a substantial title to sue, and as being substantially in a position to offer restitution to the defenders. Ratio |
If this be so, the circumstance that the substantial right was not actually completed at the initiation of proceedings is not material. Ratio |
The Westville Shipping Co case is not on its facts an exact parallel to the present appeal, since the pursuers in that case were all along parties to the assignation which they challenged, but were not entitled to have it set aside so long as the second assignation, which depended upon the first, remained in force. Rat... |
The approach described by the Lord President has however been applied in a range of other situations which are closer to the present case. Ratio |
In the case of Doughty Shipping Co Ltd v North British Railway Co 1909 1 SLT 267, for example, a pursuer who had paid out the original creditors of the defender, and therefore had an entitlement to receive an assignation of their rights, did not obtain the assignation until after the proceedings had been commenced, but... |
That decision was followed, on similar facts, in the case of Lanarkshire Health Board v Banafaa 1987 SLT 229. Ratio |
The same conclusion was reached in Tayplan Ltd v D & A Contracts 2005 SLT 195, an action for breach of copyright in which the pursuers did not own the copyright at the time when the action was raised, but had a right to have it assigned to them. Ratio |
Lord Kingarth held that a clear and unqualified personal right to demand an immediate assignation of the copyright, as he described it (para 19), was sufficient to confer a title to sue. Ratio |
Returning therefore to the questions which I posed in para 39, it would in my opinion be just and rational for the law to answer that it is not always essential that the threat of eviction should be made by a person who has at that time a title to the property. Ratio |
The test which one might expect, as a matter of principle, is that the purchaser must, objectively, have no realistic alternative but to accede to the threat of eviction. Ratio |
Whether such an alternative exists in particular circumstances must be a matter of judgment on the facts. Ratio |
That judgment would have to be made by the court, in the event that the purchaser acceded to the threat and the seller subsequently disputed his liability under the warrandice. Ratio |
It is likely that no such alternative will exist in a situation where the person making the threat has an unqualified entitlement, exercisable immediately, to demand a transfer of the title currently vested in another person, and upon such a transfer will indubitably be entitled to evict the purchaser. Ratio |
Applying that approach to the present case, Mr Morris offers in his pleadings to prove that JCL were entitled to require Mr Lynch to grant them a corrective disposition, as an alternative to proceedings for the reduction or rectification of the disposition in his favour, to which there would have been no possible defen... |
In substance, therefore, Mr Morris is offering to prove that JCL had an unqualified entitlement, exercisable immediately, to demand a transfer of the title vested in Mr Lynch. Ratio |
He also offers to prove that, upon such a transfer, RDL would have had no defence to JCLs threat of eviction. Ratio |
In these circumstances he has in my opinion set out a relevant case against Mrs Rae. Ratio |
For these reasons, and those given by Lord Hope, I would allow the appeal. RPC |
To one still largely unfamiliar with the intricacies of Scottish conveyancing and Scottish civil procedure, it is surprising that the soundness of the appellants claim for damages for breach of warrandice should depend, not on the assumed truth of the elaborate pleading which is before the Court, but on the assumed tru... |
The more so as the rather random selection of documentary evidence which the parties have placed before the Court appears to raise doubts as to the correctness of both the existing pleading and its suggested replacement. Ratio |
Neither deals with Mr John Lynchs sale (for a nominal consideration) of the disputed land (together with other land) by a disposition made on 17 June 2002 in favour of himself and two co-trustees. Ratio |
Neither explains the references to two different companies, James Craig Ltd and James Craig (Farms) Ltd. Neither adverts to rectification being, in Scotland as in England, a discretionary remedy. Ratio |
These difficulties cannot however amount to grounds for a principled dissent. Ratio |
The appeal must be allowed for the reasons given by Lord Hope and Lord Reed. RPC |
For the reasons given in the judgments of Lord Hope and Lord Reed, we too would allow the appeal. RPC |
The respondents to the Lord Advocates appeal in these three cases are Raymond Jude, Michael Hodgson and Josh Birnie. FAC |
They were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. FAC |
Their detentions took place prior to the decision of this court in Cadder v HM Advocate [2010] UKSC 43, 2011 SC(UKSC) 13; [2010] 1 WLR 2601. FAC |
As was the practice at that time, they did not have access to legal advice either before or during their police interviews. FAC |
In the course of their interviews they said things in reply to questions put to them by the police on which the Crown relied at their trials. FAC |
They were convicted and sentenced to various periods of imprisonment. FAC |
They then appealed against these convictions. FAC |
Their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. FAC |
Among other grounds of appeal in the High Court of Justiciary the respondents advanced submissions which raised a devolution issue. ARG |
This was that the leading of evidence of statements which they made during their police interviews was a breach of their rights under articles 6(3)(c) and 6(1) of the European Convention on Human Rights and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. A... |
They referred to the decision in Cadder in support of this ground of appeal. ARG |
For Birnie it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under article 6(1) of the Convention and at common law. ARG |
The Crowns response to these submissions was that, for various reasons, the principle that was established in Cadder did not apply in these cases. ARG |
The High Court of Justiciary decided to deal with this response as a preliminary issue, and it was referred to a court of five judges. ARG |
On 11 May 2011 the Appeal Court (the Lord Justice-Clerk (Gill) and Lords Osborne, Eassie, Clarke and Mackay of Drumadoon) repelled the Crowns objections and continued the appeals for hearing on the remaining grounds of appeal: [2011] HCJAC 46, 2011 SLT 722. ARG |
The Crown was given leave to appeal against that decision to this court under para 13 of Schedule 6 to the Scotland Act 1998. ARG |
The issues raised by the Crowns response to the devolution issue were as follows: (1) that in the case of each respondent section 118(8) of the Criminal Procedure (Scotland) Act 1995 was an absolute bar to any challenge to the evidence of the police interviews, as objection was not taken at or before the trial to the l... |
The Crown did not seek leave to appeal from the Appeal Courts decision in relation to the application of section 118(8) of the 1995 Act. FAC |
Leave was sought and granted in relation to the issues of waiver and the application to Judes case of section 100(3B) of the Scotland Act. FAC |
In his written case to this court the Lord Advocate made it clear that he did not intend to pursue the point that the respondents had waived their right to object to the admissibility of the evidence of the police interviews because their legal representatives did not object to that evidence at the trial. FAC |
This was because he accepts that, at the time when the respondents were tried, a person who was detained under section 14 of the 1995 Act did not have an express right in Scots law to legal advice before or during his police interview. FAC |
As for the issue of individual waiver, his position was that the only point in these appeals which was likely to be of importance for future cases was that raised in the case of Birnie. FAC |
Unlike the other two respondents Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. FAC |
The advocate depute, Miss Cherry QC, confined her submissions about waiver in these three cases to the question whether Birnie waived his right to a lawyer when he made his unsolicited statement. RLC |
She made no submissions in support of the proposition that the respondents had waived their right to a lawyer at their police interviews. RLC |
That issue was however the subject of detailed submissions in the Lord Advocates reference in McGowan (Procurator Fiscal, Edinburgh) v B, which was heard at the same time as these appeals. RLC |
The court has issued a separate judgment in that case: [2011] UKSC 54. RLC |
In the result the only matters which remain for consideration in relation to these three appeals are (1) whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal, (2) whether Birnie waived his right of access to a lawyer when he made his unsolicited statement fol... |
No issue now arises in regard to the preliminary points that were taken by the Crown in Hodgsons appeal. Ratio |
Section 100(3B) Ratio |
Jude went to trial in the High Court of Justiciary at Aberdeen on an indictment which libelled one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape. FAC |
On 5 June 2008 he was convicted of one charge of indecent assault and of both charges of assault with intent to rape. FAC |
On 28 August 2008 he lodged a notice of his intention to appeal against his conviction. FAC |
On 17 February 2009 his appeal was deemed to have been abandoned because his note of appeal had not been lodged within the period referred to in section 110(1)(a) of the 1995 Act. FAC |
On 5 October 2010 he lodged an application for extension of time under section 111(2) of that Act along with a note of appeal. FAC |
His application for extension of time was granted on 6 October 2010 and his note of appeal was received on the same date. FAC |
It is plain, and not disputed, that the time bar which would have otherwise have applied under section 110 of the 1995 Act was removed when the Appeal Court decided on 6 October 2010 to grant Judes application for an extension of time under section 111(2). FAC |
At the end of his judgment in Cadder Lord Rodger drew attention to the provisions of section 100 of the Scotland Act, as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009: 2011 SC(UKSC) 13, paras 104-106. STA |
In its amended form, the relevant provisions of that section are as follows: (1) This Act does not enable a person (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he w... |
(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied. STA |
(3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convent... |
(3B) Proceedings to which this subsection applies must be brought before end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imp... |
(3E) The reference in subsection (3A) to proceedings brought on or after 2 November 2009 includes proceedings relating to an act done before that date. STA |
As Lord Rodger observed in para 104 of his judgment in Cadder, the effect of these provisions was not mentioned by any of the counsel who appeared to argue that case in the Supreme Court. Ratio |
Nevertheless he went on to express his opinion on it. Ratio |
He referred in the following paragraph to the fact that the amendment to section 100 was made in response to the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45, [2007] 1 WLR 2734, in which it was held that the time limit in section 7(5) of the Human Rights Act 1998 did... |
Having set out the terms of the section in its amended form, he said that the proceedings in Cadders case were proceedings to which that section applied. Ratio |
So, by reason of section 100(3B), to be competent any such proceedings would need to have been commenced before the end of a year beginning with the date on which the Crown led the evidence, or within such longer period as the court considered equitable having regard to all the circumstances: paras 105-106. Ratio |
I endorsed what he said in those paragraphs in para 60 of my own judgment, when I included appeals that had been brought timeously among the list of cases that would have to be dealt with in the light of Cadder on the basis that a person who was detained must have had access to a lawyer before being questioned by the p... |
The Crowns attempt to rely on Lord Rodgers analysis in support of its argument that Judes appeal was out of time because the act that was relied on took place more than one year before the lodging of his note of appeal was rejected by the Appeal Court. Ratio |
The Lord Justice Clerk said that he could not follow why Lord Rodger should have taken the view that section 100(3B) applied to these proceedings. Ratio |
In his opinion it applied only to claims made in civil proceedings and then only when they were brought by virtue of the Scotland Act. Ratio |
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