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Eoghainn MacLean Wins Important Property Case
23rd July 2012
McSorley v Drennan - Inner House, Court of Session - 10th July 2012
Eoghainn MacLean represented the defenders in this successful appeal. They were a married couple who had purchased a house, which they had sold on to a third party about a year later. Later, they came to learn that, as a result of successive conveyancing errors, title to a separate plot of development land had inadvertently been transferred to them, in addition to the house, and that the additional plot had, later, inadvertently been transferred to the third party in their conveyance to him. The original seller, rather than seeking the return of the additional plot from the third party or damages for his solicitors’ negligence, sued the defenders for damages on the premise that they must at some stage have taken advantage of the error in the initial conveyance to them.
The appeal court, accepting Mr MacLean’s submissions, held that the private law remedy of damages was available only where a party sustains loss through a defender’s breach of some contractual or delictual obligation, which the pursuer had failed to identify. That, in so far as the case was dependent on deliberate wrong doing, the pursuer had not offered to prove facts from which it could be inferred that the defenders had become aware, before its transfer to the third party, that title to the additional plot had been conferred on them. The Inner House likewise rejected the untenable notion, accepted by the Sheriff Principal in the court below, that, as a matter of law, purchasers such as the defenders should be deemed to be aware of the actual terms of their conveyances and entries in the land register, whether or not they had seen and understood them. In the result, the pursuer’s case failed “by a considerable margin” and was dismissed.
The appeal court, however, reserved judgement on Mr MacLean’s further arguments, including, that: (i) the pursuer could have sought return of the additional plot by reduction of the conveyances and consequent rectification of the land register or an ordained reconveyance from the third party or, alternatively, rectification of the conveyances and consequent rectification of the register; and (ii) that, delict apart, his only conceivable ground of action against the defender would have been in unjustified enrichment for recompense under the condictio indebiti, a view shared by Professors Gretton and Reid of Edinburgh University in a recent review of the case.
The full Opinion of the Inner House can be viewed here.