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Brian and Evelyn Dickson v. A & W M Urquhart, W.S. [2009] CSOH 38


Proof:- In 1987 the pursuers purchased a warehouse in a Georgian terrace overlooking Leith Links. The defenders acted for the pursuers in the purchase of the property. By a disposition dated 9 and 29 July 1986, the property was conveyed into the joint names of the pursuers. Certain additional burdens were inserted in the title to reflect the terms of a Memorandum. In particular, the disposition stated:- "... the warehouse will be used in connection with our said Disponees' business of plasterers and slaterers and for no other purpose whatever without the consent of in writing of us and our successors as proprietors of the office". In 2000, a local motorcycle business wished to lease the property for storage purposes and the pursuers contacted the defenders and asked them to prepare a draft lease. The defenders replied reminding them that in terms of their title, any change of use required consent. The pursuers contacted the defenders to say that they were unaware of any such title condition. The issue in this action of damages for negligence was whether the defenders informed the pursuers about the restrictive title condition at the time of the purchase. The pursuers based their case on:- (1) their recollection that the defenders had never sought their instructions about the Memorandum or the disposition; and (2) their lack of confidence in the completeness and accuracy of the defenders' records of the transaction. Here the court considered the evidence of those involved in the transaction at the time of the purchase in considering whether the defenders had been negligent.