MOHAMMED AMEED MIRZA AGAINST MRS FOZIA ASLAM OR SALIM AND MESSRS MELLICKS, SOLICITORS [2014] ScotCS CSIH_51 (03 June 2014)

MOHAMMED AMEED MIRZA AGAINST MRS FOZIA ASLAM OR SALIM AND MESSRS MELLICKS, SOLICITORS [2014] ScotCS CSIH_51 (03 June 2014)

Rectification of the land register under the 1985 Act operates retrospectively, so the defender's right never existed in law. The interim interdict was therefore wrongful ab initio, and the general rule applies: the applicant for interdict is strictly liable for damages unless the case is a possessory remedy, which this was not as the defender never had possession. The action should not have been dismissed; proof on quantum of damages is required.

Citation
[2014] ScotCS CSIH_51
Parties
Pursuer and Reclaimer: Mohammed Ameed Mirza; Defender and Respondent: Mrs Fozia Aslam or Salim; Third Party: Messrs Mellicks, Solicitors
Jurisdiction
Scotland
Judgment Date
03 June 2014
Procedural Posture
Reclaiming Motion (appeal) in Civil Damages Action / Appeal From Dismissal of Action After Debate on Relevancy; Interlocutor of 16 May 2013
Outcome
Reclaiming motion allowed; interlocutor of 16 May 2013 recalled; case remitted for proof on quantum of damages.
Legal Topics
Rectification of Land Register, Wrongful Interdict, Damages, Retrospective Effect of Rectification, Possessory Remedies
Property Law Civil Procedure Remedies Rectification of Land Register Wrongful Interdict Damages Retrospective Effect of Rectification Possessory Remedies

Case Brief

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Parties

Mohammed Ameed Mirza

Pursuer and Reclaimer

Mrs Fozia Aslam or Salim

Defender and Respondent

Messrs Mellicks, Solicitors

Third Party

Procedural Posture

Reclaiming Motion (appeal) in Civil Damages Action / Appeal From Dismissal of Action After Debate on Relevancy; Interlocutor of 16 May 2013

Legal Issues

  1. 1 Whether rectification of the land register under the 1985 Act operates retrospectively to render interim interdict wrongful ab initio
  2. 2 Whether damages are recoverable for loss caused by interim interdict where the right relied upon is retrospectively expunged
  3. 3 Whether the exception for possessory remedies applies

Ratio Decidendi

Rectification of the land register under the 1985 Act operates retrospectively, so the defender's right never existed in law. The interim interdict was therefore wrongful ab initio, and the general rule applies: the applicant for interdict is strictly liable for damages unless the case is a possessory remedy, which this was not as the defender never had possession. The action should not have been dismissed; proof on quantum of damages is required.

Court Disposition

Reclaiming motion allowed; interlocutor of 16 May 2013 recalled; case remitted for proof on quantum of damages.

Orders

  • Recall of interlocutor of 16 May 2013
  • Remit to commercial court for proof on quantum of damages