Damages for wrongful interdict? Considering interim interdict? Proceed at your peril!
The Inner House recently considered damages for wrongful interdict after interim interdict was granted based on deeds which were retrospectively amended.
The original landlord only intended to lease a shop under a lease however, in error, the adjacent yard was included. S (the defender) subsequently became vested in the tenant’s interest (in the knowledge of the difficulty in relation to the yard) and ‘M’ (the pursuer) later became the owner (and landlord). M then constructed a shop in the yard and the parties entered discussions as regards S leasing it. Both parties claimed they had a real right to possess the yard (and shop). In 2008, S was awarded interim interdict against M, prohibiting him from entering the yard and using the shop, on the basis that the lease and the land register showed that it formed part of S’ demise.
The matter proceeded to proof at which court found that the yard should not have been leased to S and that the land register and lease were incorrect; it ordered that they be rectified to give M the real right to the yard. Under s9(3A) of the Land Registration (Scotland) Act, rectification is retrospective from the date of registration i.e. as if M always had the real right.
M claimed damages from S for wrongful interdict. Interim interdicts are said to be granted “periculo petentis” i.e. at the risk of the pursuer; the ordinary rule being that recall of interdict conclusively demonstrates that it was wrongful. However S claimed that she had a real right at the time the interdict was granted; to interpret the legislation as having a retrospective effect in this context would mean making a lawful interdict into one that was wrongful.
The Inner House unanimously considered that M’s claim should proceed although they were divided as regards how. The majority view was that s9(3A) was retrospective for all purposes, including damages for wrongful interdict, and nothing in the case justified departure from the ordinary rule that recall was conclusive of the interdict being wrongful. No further evidence was required on that point. The minority view was that the court was entitled to look at all of the circumstances of the case in determining whether the interdict was wrongful, including questions of good and bad faith and evidence should be led on that.
Interdict is very much as the risk of whoever seeks it- recall being conclusive that the interdict was wrongful. You should therefore proceed with caution should you ever seek interdict as a remedy.