Mohammed Ameen Mirza v Mrs Fozi Aslam or Salim and Mssrs Mellicks - [2013] CSOH 73-16 May 2013

M is owner of shop and yard and S is his long lease tenant. M built a new shop in the yard. The yard was not occupied by S but considered by S to be to be part of her lease. S obtains an interim interdict against M entering the yard and the new shop in it on the basis of her lease document appearing to grant her tenant's rights over the yard.

At proof the Sheriff, after evidence being lead of the conveyancing documents, ruled that the yard is – after all - not part of the lease. He ordered the lease to be rectified and the Land Register to be changed accordingly. The interim interdict was recalled.

In this action M seeks damages for wrongful interdict from S. The action was dismissed.

The real right of a long lease is derived from registration of the interest in the Land Register under s 2 (a) (v) of the Land Registration (Scotland) Act 1979. The court has powers to retroactively rectify inaccuracies under s 8 and 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

Retrospectively always bears the risk of being unjust and must therefore be treated with care even where parliament has expressly provided for it.

In this case, if the law is treated as allowing a change of past fact, S would have been defending real rights she did not possess. However, Lord Woolman finds that this does not necessarily mean that action for damages must succeed.

Lord Woolman summarises the law on damages for wrongful interim interdict with regard to property claims as follows:

• An interim interdict is obtained at the risk of the person who seeks the interdict, however the award of damages, depends upon an assessment of the whole circumstances of the case.
• Damages will be awarded if the interim interdict is excessive or extravagant or groundless or if the person obtaining the order has made a false statement.
• A person who obtains a possessory judgment that was lawful at the time or pronouncement will not be liable in damages.
• It is not necessary for a pursuer to aver malice or ill will.

[Bell's Principles -para553], [Miller v Hunter (1865) 3M 740], [Kennedy v Police Commissioners of FortWilliam (1877) 5R 302], [Dramgate Ltd v Tyne Dock Engineering Ltd 2000 SC 43]

On the facts of this case, Lord Woolmans held that S did not act groundlessly or excessively nor acting on false pretence. The rectification by the court altered the deed and the register, but it did not airbrush history. It did not convert a rightful interdict into a wrongful one. The action for damages was therefore dismissed.