The Trustees of The Grange Trust v City of Edinburgh Council: case “bowled out” of Court of Session as the pursuers failed to show they have title to sue

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.

Conclusion

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. 

Public Sector

Proudly described as the “top public sector firm in Scotland”, our team truly comprises leaders in their field, who not only understand the way government works but also how it thinks.

Latest updates from @MacRoberts

  • MacRoberts is recruiting! We currently have a vacancy for a Senior solicitor/associate to join our Private Client… https://t.co/nTGY8Irf5S 10 hours ago
  • This week on our new IGTV mini-series, giving an insight into what it’s like to begin a legal career during the pan… https://t.co/giTipHUGgd 23/06/2021
  • Would you like to work at one of Scotland’s leading law firms? We currently have a number of opportunities availabl… https://t.co/atxn5NHzLj 21/06/2021
  • We currently have a vacancy for a Customer Due Diligence Administrator based in Glasgow or Edinburgh. Please shar… https://t.co/IXsvMkBnYa 18/06/2021
  • Maya Forstater received a lot of media attention around her tweets relating to her beliefs about sex, resulting in… https://t.co/VbDAGhzAqX 18/06/2021
  • Applications for our traineeships starting in 2023 are now open! Get your legal career off to the best possible sta… https://t.co/nx3WmygTTM 18/06/2021
  • RT @DundeeAndAngus: Leading Scottish commercial law firm, @MacRoberts has advised BAM on the ‘game-changing’ Atlantic Square development in… 16/06/2021
  • This week on our new IGTV mini-series, giving an insight into what it’s like to begin a legal career during the pan… https://t.co/tqSQy4tRqG 16/06/2021
  • Self-employed status: What does the Uber case really mean? 🚖 Kenny Scott explains what the recent ruling means for… https://t.co/SIt6iBNYPx 16/06/2021
  • What is the Scottish #gin industry doing to improve #sustainability? Following #WorldGinDay celebrations over the w… https://t.co/P4d0oPh54U 15/06/2021
  • The European Commission has adopted & published versions of two new sets of Standard Contractual Clauses. What ch… https://t.co/c8nMQEo6uk 15/06/2021
  • What impact could Ireland High Court's decision to reject an action by Facebook to block an inquiry by the Irish… https://t.co/leiseQnxYe 14/06/2021
  • Wishing all of our followers a happy #WorldGinDay! ICYMI: Earlier this week, we were delighted to catch up with… https://t.co/OJ85qOwAhN 12/06/2021
  • We're #hiring! We have a #vacancy for a Senior #Solicitor or Associate to join our IP, Technology & Commercial team… https://t.co/YWbpcD0eFD 10/06/2021
  • Dealing with an employee's misconduct when that employee contends it is linked to a disability can be tricky - read… https://t.co/Gy1dLbrwPk 09/06/2021