The Grange Trust (“the Trust”) was formed in 1882 to hold property for a number of sports clubs including Edinburgh Academical Cricket Club (“the Club”).
In 1912 Edinburgh Council sought to expand Comely Bank Road in the Stockbridge area of Edinburgh next to the Club’s playing fields. At this stage, the Trust held the land on behalf of the Club and the Club were the tenants.
Under a Minute of Agreement, entered into by the Council, the Trust and the Club, the Trust and the Club waived their rights to a strip of land to allow the proposed expansion of Comely Bank Road. The Council agreed to demolish an existing boundary wall and replace it with another wall which the Council was to maintain “in all time coming”.
A dispute arose between the Trust and the Council in relation to responsibility for rebuilding the wall upon development being consented along Comely Bank Road.
The Club wasn’t involved in the dispute, notwithstanding that it was a party to the Minute of Agreement.
The question therefore arose: did the Trust alone have title and interest to enforce the agreement, without the concurrence of the Club?
Title and interest
In order to sue someone it is necessary for a pursuer to have both title and interest. Title to sue is a legal standing that exists when a defender has either infringed or denied a right held by the pursuer. For a pursuer to have “interest” in suing someone, there must be a benefit in enforcing that right.
The Council’s position was that the Trust simply held land on behalf of the Club. Any enforcement of the Minute of Agreement required the consent of the Club since it is they who had the true interest in ensuring that the Agreement was enforced. The wall that had been created, and the maintenance obligation thereof, was for the benefit of the Club. That being the case, any interest in enforcement, and accordingly interest to sue, belonged to the Club and not to the Trust.
The court agreed with the Council’s position. The purpose of the Trust was simply to hold property on behalf the Club. Added to that, the Court agreed that the Minute of Agreement conferred the benefit of a new wall on the Club.
As such there was no obvious benefit to the Trust arising from the Minute of Agreement. As there was no benefit to the Trust, the Outer House held that the Trust and the Club were one party when signing the Minute of Agreement; therefore nor did the Trust have title to sue without the Club also acting alongside them.
This case serves as a reminder to those entering a multiple party agreement that where an obligation under that agreement is not divisible, all of the beneficiaries must be party to any court action seeking to enforce a right under the agreement (unless the agreement itself provides otherwise). It will not be competent for only one beneficiary to strike out on their own. It is clear from Lord Boyd’s judgment that had the action been raised by both the Trust and the Club then it would have been competent. The failure to involve the Club was fatal to this action.
The case also provides a clear and current example of the necessity of having both title and interest to sue. By raising an action without title and interest a party can leave themselves open to having their action dismissed at the first stage; having gained no benefit and incurred significant legal costs.
The case is also interesting as regards the extent of a public road.