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John Nicholas Andrew Lubbock and Robert Cheyne Turcan as Trustees of the Elliot of Harwood Trust v. Robin Feakins and the Keeper of the Registers of Scotland, AJ99/10, 17 February 2012
Sheriff Court case concerning the sale of Harwood Estate near Bonchester Bridge in Hawick. In 2002 the trustees sought to sell part of the estate with the exception of Harwood Mill, which was being retained as a residence for Andrew Lubbock, and the lodge, which was the subject of a liferent to Georgina Lauder. However, no mention was made of the exception of the lodge in the narrative to the disposition and title to the lodge was included within the estate title registered in favour of the purchaser, Mr Feakins in the Land Register for Scotland.
When this was discovered some years later, the trustees sought declarator that the lodge had not been included in the subjects of sale and an order that the Land Register be rectified. The trustees argued that, as the scale of the plan attached to the disposition meant it was impossible to determine whether the lodge was part of the subjects of sale, regard should be had to the intention of the parties in determining the effect of the disposition.
Although no mention was made of the exceptions in the missives or disposition, the trustees had instructed their estate agents and solicitors that the estate was to be sold with the exceptions and the trustee’s solicitors had sent a fax to the purchaser’s solicitors indicating that the mill and lodge were not included in the sale (a fact that had not been brought to Mr Feakins attention, his solicitors believing it unnecessary as he had been content with the plan which represented the subjects being purchased). The draft sales particulars had also been drawn up in a manner which neither specifically included or excluded the mill and lodge (the estate agents having taken the view that specific mention may have deterred purchasers and was unnecessary as the buildings were not within the body of the estate).
Sheriff Daniel Kelly QC found that the Register was not inaccurate as the lodge had been transferred in the disposition. Even if the disposition had been ambiguous, the lodge was amongst the property transferred in the missives. The missives had been agreed to be final [1] and it was not open to have regard to the prior intention of the parties. Further, even if the parties' intentions had been considered, their intensions were not ‘as one’ as Mr Feakins did intend to purchase the lodge.
Finally, even had there been an inaccuracy in the Register, it would not have been open to order rectification as Mr Feakins was ‘a proprietor in possession’ [2] who would have been prejudiced by the rectification. Although Miss Lauder was in natural or direct possession of the lodge, neither she nor the trustees held a registered title. Mr Feakins held title to and possessed the estate as a whole (living on it with his family and having a sheep farm there too). Mr Feakins also understood that, following the sale, Miss Lauder’s liferent was with him as fiar and he allowed her to continue to occupy the lodge. Although the Sheriff found there was difficulty in construing Miss Lauder’s occupation of the lodge as being civil possession on behalf of Mr Feakins, he nevertheless tended towards the view that Mr Feakins might be construed as a proprietor of the whole estate including the lodge.
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[1] The missives contained a clause stating that they represented the full and complete agreement between the parties and superseded any previous agreements between them.[2] In terms of section 9(3) of the Land Registration (Scotland) Act 1979, the Keeper cannot rectify the register to the prejudice of a proprietor in possession unless specific exceptions apply.
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Ian Hay v. Her Majesty’s Advocate and Procurator Fiscal, Aberdeen [2012] HCJAC 28
Criminal Note of Appeal and Appeal by Stated Case:- On 28 January 2010 at Aberdeen sheriff court the appellant pled guilty on indictment to a number of charges of breach of the peace which related to 28 instances of the appellant staring at a young female and numerous other instances when he either waved, gestured or nodded at the complainers. The sheriff imposed a cumulo sentence of twelve months imprisonment, one month of which was for the bail aggravations. In terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, he determined that there was a significant sexual aspect to the appellant's behaviour. By reason of that determination the appellant became subject to the notification requirements of the Act for a period of ten years. On 13 April 2010 at Aberdeen sheriff court the appellant was convicted on complaint of a number of charges which were similar in nature to the indictment charges. The sheriff imposed a cumulo sentence of nine months' imprisonment, three months of which were for the bail aggravation. He determined that the breach of the peace charges had a significant sexual aspect in terms of Sched 3, para 60 of the 2003 Act and directed that the appellant should be subject to the notification requirements of the 2003 Act for a period of ten years. In relation to the indictment the appellant lodged a bill of advocation and a devolution minute in which he contended that there has been a breach of his right to a fair hearing under article 6 of the Convention in that the indictment gave no notice that he might be subject to the requirements of the 2003 Act and that it could not be said, that the behaviour had a significant sexual aspect. In relation to the summary matter the appellant contended that the complaint served upon him gave no notice that he might be subject to the requirements of the 2003 Act and that accordingly there has been a breach of his right to a fair hearing under article 6; and that the sheriff erred in holding that the appellant's behaviour had a significant sexual aspect. The Schedule to the 2003 Act places convictions in two categories, namely convictions covered by the specific list and convictions covered by paragraph 60. Here the court considered, along with five other appeals, the notification provisions of the Sexual Offences Act 2003. The appeals raised general questions as to the circumstances in which the procedure of notification of a convicted offender is necessary or appropriate if the Crown chooses to libel an offence that is not on the specific list, for example by libelling breach of the peace like in the present appeal, and libels it without further narrative, whether the accused is entitled to infer that the Crown will make no suggestion that there is a significant sexual aspect in the accused's behavior following conviction. The court also considered whether, if in libelling an offence that is not on the specific list the Crown proposes, following conviction, to contend that there is a significant sexual aspect, whether fair notice requires that that significant sexual aspect should be narrated in the libel itself together with the alleged facts and circumstances from which that aspect is to be inferred.
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Durmus Akdeniz v. Procurator Fiscal, Dunfermline [2012] HCJAC 26
Criminal Appeal:- This appeal was heard with the appeals in Hay v HMA [2012 HCJAC 28]. On 29 March 2010 at Dunfermline sheriff court the appellant was convicted after trial on summary complaint on the following charge:- "Between … at … you ... did conduct yourself in a disorderly manner repeatedly put your arms around [first complainer] ... and [second complainer] ... repeatedly cuddle them and pull their heads to your chest and touch their bodies and commit a breach of the peace." On 6 May 2010 the sheriff fined the appellant £600, and determined, in terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, that there was a significant sexual aspect to the appellant's and the appellant would be subject to the notification requirements of that Act for a period of five years. The appellant lodged a devolution minute in which he contended, with reference to the bills of suspension and advocation in the related appeals in Hay and Heatherall v PF Edinburgh [2012 HCJAC 25] that his rights under articles 6(1) and 8 of the ECHR had been violated. It was submitted on behalf of the appellant that the sheriff had erred in his determination that there was a significant sexual aspect and there was no fair notice of the possibility of a determination under paragraph 60. It was submitted on behalf of the Crown that the complaint had given the appellant fair notice of the possibility of a determination under paragraph 60 and his solicitor had had the opportunity to make submissions on whether the 2003 Act applied. Further, it was submitted that the sheriff was entitled to find that there had been a significant sexual aspect here. Here the court considered whether the specification in the complaint gave the appellant notice of the possibility that paragraph 60 might apply.
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James Gerald Patrick Heatherall v. Procurator Fiscal Edinburgh [2012] HCJAC 25
Criminal Appeal:- This appeal was heard along with Hay v HMA [2012 HCJAC 28]. On 26 April 2010 at Edinburgh sheriff court the appellant appeared on complaint on the following charge:- "On … at … you ... did assault [complainer] ... and did expose your naked penis and thereafter seize her by the body and repeatedly thrust your naked penis against her." The Crown accepted a plea of guilty to an amended charge of breach of the peace by exposing his naked penis to the complainer. The sheriff fined the appellant £225 and determined, in terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, that there was a significant sexual aspect to the appellant's behaviour and the appellant was subject to the notification requirements of the 2003 Act for a period of five years. The appellant lodged a devolution minute in which he contended, with reference to the bills of suspension and advocation in the related appeal in Hay and Akdeniz v Procurator Fiscal Dunfermline [2012 HCJAC 26] that his rights under articles 6(1) and 8 of the ECHR had been violated. It was submitted on behalf of the appellant that the sheriff had erred in his determination that there was a significant sexual aspect and there was no fair notice of the possibility of a determination under paragraph 60. It was submitted on behalf of the Crown that the appellant had been given fair notice by the wording of the libel in its unamended form, his solicitor had the opportunity to make submissions on whether the 2003 Act applied and the sheriff had been entitled to conclude that there had been a significant sexual aspect to the appellant's behaviour. Here the court considered that the complaint set out an unmistakable charge of indecent assault and a conviction to that libel would automatically have resulted in notification under the 2003 Act. However, the court here went on to consider whether paragraph 60 of Schedule 3 was made out for the amended breach of the peace charge.
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Robert Young v. Procurator Fiscal, Falkirk [2012] HCJAC 24
Criminal Appeal:- This appeal was one of those heard with Hay v HMA [2012 HCJAC 28]. On 6 August 2010 at Falkirk sheriff court the appellant pled guilty on complaint to the following charge:- "On … at … whilst travelling on a … train … you ... did assault [the complainer] ... and did kiss her on the lips." On 21 October 2010 the sheriff imposed a probation order for twelve months and determined, in terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, that there was a significant sexual aspect to the appellant's behaviour and made the appellant subject to the notification requirements of the 2003 Act for the duration of the probation order. It was submitted on behalf of the appellant that the plea had been tendered on the basis that there had been no sexual element in the appellant's conduct. Further, it was submitted that the sheriff should not have formed his own view on the sexual aspect without allowing the appellant the opportunity of a proof on the point and if there was a sexual aspect, it was not a significant one. It was submitted on behalf of the Crown that the sheriff had been entitled to conclude that the offence had a substantial sexual aspect, the libel gave the appellant fair notice of it and his solicitor had the opportunity to make submissions on the point before the sheriff made his determination. Here the court considered whether the sexual aspect could properly be described as "significant."
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Andrew Halcrow v. Procurator Fiscal, Elgin [2012] HCJAC 23
Criminal Appeal:- This appeal was heard with the appeals in Hay v HMA [2012 HCJAC 28]. On 11 November 2009 at Elgin Sheriff Court the appellant was convicted of the following charge:- "On … at … you ... did conduct yourself in a disorderly manner repeatedly handle your private parts over your clothing, repeatedly rub your private parts over your clothing and commit a breach of the peace…”. The sheriff sentenced the appellant to 13 months' imprisonment, one month of which was for the bail aggravation and determined, in terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, that there was a significant sexual aspect to the appellant's behaviour and determined that the appellant would be subject to the notification requirements of the 2003 Act for ten years. It was submitted on behalf of the appellant that the sentence was excessive and there was no significant sexual aspect. The Crown submitted that the sheriff had been entitled to conclude that the offence had a substantial sexual aspect, the libel gave the appellant fair notice of that and the appellant’s solicitor had had the opportunity to make submissions before the sheriff made his determination under paragraph 60. Here the court considered whether the sentence was excessive and whether the way the breach of the peace was libelled impliedly gave notice of the possible application of paragraph 60 and whether there was a significant sexual aspect to the offence.
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Stuart Thompson v. Procurator Fiscal, Glasgow [2012] HCJAC 27
Criminal Appeal:- This appeal was heard with the appeals in Hay v HMA [2012 HCJAC 28]. On 25 August 2009 at Glasgow sheriff court the appellant pled guilty on summary complaint to the following charge:- "On … at … you ... did assault [the complainer] ... and did seize hold of her buttocks." The Crown's position was that this was an indecent assault. The plea in mitigation was that the appellant's behaviour had been drunken and offensive but that he had derived no sexual gratification from it. The sheriff decided that an assault by grabbing the buttocks was an "indecent assault", and that by reason of paragraph 40 of Schedule 3 to the Sexual Offences Act 2003 the appellant would be subject to the notification requirements of the Act. The sheriff deferred sentence pending the outcome of this appeal. The appellant lodged a bill of suspension and a devolution minute. In the bill of suspension he averred that the sheriff erred in holding that his behaviour in connection with the offence had a significant sexual aspect. The devolution minute contended that in bringing this prosecution the Crown violated his right to a fair trial under article 6(1) of the Convention by failing to give him fair notice that the Crown viewed this as an indecent, rather than a simple, assault. It was submitted on behalf of the appellant that the essence of an indecent assault was that the conduct outraged public decency and the assault on the complainer here was not indecent and therefore paragraph 40 of Schedule 3 did not apply to it. It was submitted on behalf of the Crown that by reason of paragraph 40 of Schedule 3 to the 2003 Act, indecent assault was per se an offence to which the notification requirements applied. Here the court considered whether paragraph 40 of Schedule 3 applied here or if the Crown was insistent that an alleged assault was indecent in nature and should on conviction result automatically in notification under paragraph 40, whether it should give express notice of that in the libel itself. The court went on to consider if the question of applying paragraph 60 had arisen, and whether notification should have applied in relation to the incident.
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Grant Alistair Cameron v. Procurator Fiscal Livingston [2012] HCJAC 19
Criminal Appeal under section 174 of the Criminal Procedure (Scotland) Act 1995:- This was an appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 which raised the question whether an amendment to section 24(4) and (5) of the 1995 Act which was enacted by the Scottish Parliament in section 58 of the Criminal Justice and Licensing (Scotland) Act 2010 was compatible with the provisions of Article 5 of ECHR. As amended by section 58 of the 2010 Act, sections 24 (4) and 24(5) of the 1995 Act read as follows :- "s24(4) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused- (a) the standard conditions; and (b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure- (i) that the standard conditions are observed (5) The standard conditions referred to in subsection (4) above are conditions that the accused- (a) appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice or at which he is required by this Act to appear; (b) does not commit an offence while on bail; (c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person; (ca) does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses; (cb) whenever reasonably instructed by a constable to do so- (i) participates in an identification parade or other identification procedure; and (ii) allows any print, impression or sample to be taken from the accused...”. The change in the legislation may be seen as making the attachment of a condition requiring participation in an identification parade or procedure, or requiring the accused to submit to the taking of any print, impression or sample from his body, no longer a matter in which the judge hearing the bail application has any measure of discretion. Instead, any discretion as to whether an accused in custody and seeking bail should be required, if granted bail, to participate in an identification procedure or to submit to the taking of prints, impressions or samples is given to a police constable, the court being bound to give that power to the police, if the accused is not to be detained in custody. It was submitted on behalf of the appellant that the conditions upon which bail might be granted was a matter which engaged Article 5 ECHR and legislation making obligatory in every case the attachment of such a condition, unrelated to any of the grounds justifying pre-trial detention, were the accused to be released pre-trial, were thus incompatible with the rights secured by Article 5. It was submitted on behalf of the Crown was, in the first place, that Article 5 was not engaged at all as it was solely concerned with detention pending trial and was not concerned with conditions attaching to release on bail. Here the court considered whether Article 5 was engaged at this stage in the proceedings. The court went on to consider whether the amendment to the terms of section 24 of the 1995 Act effected by the 2010 Act was compatible with article 5 as the amendment removed all elements of judicial discretion and supervision of the question whether the particular accused may be required to submit to evidence gathering or other investigatory procedures in exchange for obtaining pre-trial liberty.
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East Dunbartonshire Council v Bett Homes Limited formerly Gladedale (Northern) Division Limited, [2012] CSIH 1, 6 January 2012
Inner House case concerning tripartite agreement between East Dunbartonshire Council, Bett Homes and Glasgow University. The agreement allowed the Council to sell the Bearsden Academy site to Bett for development and relocate the school to a site at St Andrews College in Bearsden which it was purchasing from the University of Glasgow.
The Council sought declarator that Bett was bound to fulfil its side of the bargain and pay the final instalment of the purchase price for Academy site. The dispute centred on whether the time was of the essence regarding the entry date on which vacant possession was to have been given to Bett. Bett argued that it was of the essence and, the Council having been unable to give vacant possession on the agreed date, it had been in material breach of contract and Bett had validly rescinded the contract. The Inner House upheld Lord Glennie’s decision finding that time was not of the essence and the contract remained live for performance.
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Pinecraven Construction (Guernsey) Limited v. Dominic Donato Taddei and Claire Susanne Taddei, [2012] CSOH 18, 26 January 2012
Outer House case considering the interpretation of missives for a property in Melrose, near Galashiels. Pinecraven sought damages and interest from Mr and Mrs Taddei as a result of their failure to settle the transaction. Mr and Mrs Taddei argued that there was no concluded contract.
The crux of the Taddeis’ argument was that Pinecraven’s offer to sell contained a time limit for acceptance after which the offer would be null and void. Whilst the Taddeis’ qualified acceptance arrived within the time limit, as it contained a qualification, it was not an acceptance of the offer. Consequently, Pinecraven’s subsequent letter concluding the bargain had no effect.
Lord Kinclaven rejected the Taddeis’ arguments finding that, although the acceptance was qualified, it was still an acceptance within the meaning of the clause containing the time limit. Even if that were not the case, the Taddeis’ qualified acceptance was a counter offer which was capable of acceptance within a reasonable time, and indeed, was so accepted by Pinecraven’s letter concluding the bargain. As a result it was found that there was a concluded contract between the parties.
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