HAMPDEN PARK LIMITED v. FRANK DOW and STEPHEN CONLEY and HAMPDEN CARS LIMITED and MOUNT FLORIDA CARS LIMITED [2001] ScotHC 99 (3rd September, 2001)

HAMPDEN PARK LIMITED v. FRANK DOW and STEPHEN CONLEY and HAMPDEN CARS LIMITED and MOUNT FLORIDA CARS LIMITED [2001] ScotHC 99 (3rd September, 2001)

The real burden is negative in substance, requiring the defenders to refrain from placing obstructions on the land. The interdict sought is negative in substance, prohibiting the maintenance of obstructions, and does not specify positive acts. Therefore, part (b) of the interdict is competent, even if compliance requires removal of existing obstructions.

Citation
[2001] ScotHC 99
Parties
Pursuer: Hampden Park Limited; First Defender: Frank Dow; Second Defender: Stephen Conley; Third Defender: Hampden Cars Limited; Fourth Defender: Mount Florida Cars Limited
Jurisdiction
Scotland
Procedural Posture
Civil (interdict) / Motion to Recall Interim Interdict
Outcome
Defenders' motion to recall part (b) of the interim interdict refused.
Legal Topics
Interdict, Real Burdens, Negative Obligations, Remedies
Property Law Civil Procedure Interdict Real Burdens Negative Obligations Remedies

Case Brief

Summary, issues, holding and outcome

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Parties

Hampden Park Limited

Pursuer

Frank Dow

First Defender

Stephen Conley

Second Defender

Hampden Cars Limited

Third Defender

Mount Florida Cars Limited

Fourth Defender

Procedural Posture

Civil (interdict) / Motion to Recall Interim Interdict

Legal Issues

  1. 1 Whether part (b) of the interim interdict sought is competent as a remedy for breach of a negative real burden.

Ratio Decidendi

The real burden is negative in substance, requiring the defenders to refrain from placing obstructions on the land. The interdict sought is negative in substance, prohibiting the maintenance of obstructions, and does not specify positive acts. Therefore, part (b) of the interdict is competent, even if compliance requires removal of existing obstructions.

Court Disposition

Defenders' motion to recall part (b) of the interim interdict refused.

Orders

  • Part (b) of the interim interdict remains in force.