Motion & Anor v Binnie & Anor [2013] ScotCS CSOH_138 (21 August 2013)

Motion & Anor v Binnie & Anor [2013] ScotCS CSOH_138 (21 August 2013)

The defenders' pleadings challenging the pursuers' registered servitude rights and title are irrelevant because the Land Register is conclusive and confers real rights; alternative access routes or alleged ownership of the servient land do not constitute a relevant defence. Only the pursuers' averments of the defenders' behaviour necessitating interdict are relevant for proof.

Citation
[2013] ScotCS CSOH_138
Parties
Pursuer: Paul Motion; Pursuer: Mrs Elaine Motion; Defender: William Binnie; Defender: Mrs Cheryl Weatherly Binnie
Jurisdiction
Scotland
Judgment Date
21 August 2013
Procedural Posture
Civil / Procedure Roll Discussion on Relevancy and Specification of Pleadings
Outcome
Defenders' averments (specified portions) excluded from probation; proof restricted to pursuers' averments of defenders' behaviour necessitating interdict; further procedure and expenses to be addressed by order.
Legal Topics
Servitude Rights, Land Registration, Interdict, Title to Land, Probative Value of Land Register
Property Law Civil Procedure Servitude Rights Land Registration Interdict Title to Land Probative Value of Land Register

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Parties

Paul Motion

Pursuer

Mrs Elaine Motion

Pursuer

William Binnie

Defender

Mrs Cheryl Weatherly Binnie

Defender

Procedural Posture

Civil / Procedure Roll Discussion on Relevancy and Specification of Pleadings

Legal Issues

  1. 1 Whether the defenders' pleadings challenging the pursuers' servitude rights and title are relevant
  2. 2 Whether the pursuers are entitled to interdict against interference with their property and servitude rights

Ratio Decidendi

The defenders' pleadings challenging the pursuers' registered servitude rights and title are irrelevant because the Land Register is conclusive and confers real rights; alternative access routes or alleged ownership of the servient land do not constitute a relevant defence. Only the pursuers' averments of the defenders' behaviour necessitating interdict are relevant for proof.

Court Disposition

Defenders' averments (specified portions) excluded from probation; proof restricted to pursuers' averments of defenders' behaviour necessitating interdict; further procedure and expenses to be addressed by order.

Orders

  • Exclude from probation the specified averments in answer 2 at page 11 from letter D 'At' to end, and in answer 5 at page 24 from 'The' at letter D to end.