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Edinburgh Private Law Blog Posts

Climate Change and Scottish Property LawDry soil

Climate Change and Scottish Property Law

Published 5th August 2020
By Andrew Steven, Professor of Property Law, University of Edinburgh

In the pre-pandemic days of last autumn, the Scottish Government placed addressing climate change at the heart of its Programme for Scotland 2019-2020. The First Minister, Nicola Sturgeon, in her introduction to that publication, stated: “The consequences of global climate change will be severe. While in some parts of the world its effects are existential, we will also feel the impact here at home. We must act.” The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 is an example of the Scottish Government so acting.

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Common problems: BAM TCP Atlantic Square Limited v BT plc

Published 7th July 2020

BAM TCP Atlantic Square Limited v BT plc [2020] CSOH 57 presents something approaching a full house of recent hot topics in conveyancing: interpretation of a deed of conditions; determination of the scope of common property; the transitional provisions in the Land Registration etc (Scotland) Act 2012; positive prescription and the offside goals rule. Lady Wolffe is therefore to be congratulated for managing to get through everything in a mere 95 paragraphs. The focus of this blog, however, is the interaction between inaccuracy as understood under the 1979 and 2012 Act, and the offside goals rule.

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The Covid-19 Pandemic, Contracts, and Change of Circumstance: still room for equitable adjustment?

Published 24th June 2020

In Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] UKSC 3, 2013 SC (UKSC) 169, Lord Hope of Craighead uttered the following obiter dictum:

[T]he proposition that the court can equitably adjust a contract on the basis that its performance, while not frustrated, is no longer that which was originally contemplated is not part of Scots law. To hold otherwise would be to undermine the principle enshrined in the maxim pacta sunt servanda which lies at the root of the whole of the law of contract. I see no need for this and, as there is no need for it, I would reject the suggestion that the court should assume that function [para 48].

The Lloyds TSB Foundation case will be discussed further below.  The purpose of this blog entry is to challenge the absoluteness of Lord Hope’s statement and to argue that Scots law can and does recognise the possibility of “equitable adjustment” of contracts to deal with significantly changed circumstances, such as is found in many other legal systems.  Not all the relevant authorities were reviewed in Lord Hope’s judgment.

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Fish, Soil and Industry: Proprietary Interests in Borwick v Clear Water Fisheries

Published 11th May 2020

In Borwick v Clear Water Fisheries [2020] EWCA Civ 578, Borwick had owned and run a fishery, which consisted of nine enclosed lakes created from voids left over by the excavation of the M6, since 2005. During this time, they bought and husbanded new fish stock. In January 2016, Borwick’s lender appointed receivers to execute a charge over the land. The receivers duly sold the land to Clear Water Fisheries (CWF). The fish were not mentioned in the sale agreement and the receivers informed Borwick they did not consider them to be included under the charge. Borwick then raised an action in damages against CWF for conversion of the fish.

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Fearn v Tate Gallery Board of Trustees in the Court of Appeal: Curtains for Article 8 rights in the Tort of Private Nuisance?

Published 7th April 2020

The claimants in Fearn v Tate Gallery Board of Trustees were the owners of luxury flats, featuring “striking” floor-to-ceiling windows, adjacent to the Tate Modern on the south bank of the Thames. Residents complained, when giving evidence at first instance, that they felt “more or less constantly watched” by visitors to the gallery’s roof-top viewing platform “as if they were in a zoo”.

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