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Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie

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Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie EDITED BY FRANKIE MCCARTHY, JAMES CHALMERS AND STEPHEN BOGLE ESSAYS IN CONVEYANCING AND PROPERTY LAW Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie Edited by Frankie McCarthy Senior Lecturer in Private Law at the University of Glasgow James Chalmers Regius Professor of Law at the University of Glasgow Stephen Bogle Lecturer in Private Law at the University of Glasgow http://www.openbookpublishers.com © 2015 Frankie McCarthy, James Chalmers and Stephen Bogle. Copyright of individual chapters is maintained by the chapters’ authors. This work is licensed under a Creative Commons Attribution 4.0 International license (CC BY 4.0). This license allows you to share, copy, distribute and transmit the work; to adapt the work and to make commercial use of the work providing attribution is made to the author (but not in any way that suggests that they endorse you or your use of the work). Attribution should include the following information: Frankie McCarthy, James Chalmers and Stephen Bogle (eds.), Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie. Cambridge, UK: Open Book Publishers, 2015. http://dx.doi.org/10.11647/OBP.0056 In order to access detailed and updated information on the license, please visit: http://www.openbookpublishers.com/isbn/9781783741472#copyright Further details about CC BY licenses are available at http://creativecommons.org/ licenses/by/4.0/ Digital material and resources associated with this volume are available at http:// www.openbookpublishers.com/9781783741472#resources ISBN Paperback: 978-1-78374-147-2 ISBN Hardback: 978-1-78374-148-9 ISBN Digital (PDF): 978-1-78374-149-6 ISBN Digital ebook (epub): 978-1-78374-150-2 ISBN Digital ebook (mobi): 978-1-78374-151-9 DOI: 10.11647/OBP.0056 Cover image: Lali Masriera, Edinburgh chimneys (2010), CC BY. All paper used by Open Book Publishers is SFI (Sustainable Forestry Initiative) and PEFC (Programme for the Endorsement of Forest Certification Schemes) Certified. Printed in the United Kingdom and United States by Lightning Source for Open Book Publishers Contents Contributors vii Preface ix 1 Robert Rennie: A Career Retrospective 1 Lord Bonomy ACQUIRING PROPERTY 2 “Tell Me, Don’t Show Me” and the Fall and Rise of the 15 Conveyancer Professor Kenneth G C Reid 3 A Puzzling Case about Possession 35 Lord Hope of Craighead 4 “It’s in the Post”: Distance Contracting in Scotland 1681-1855 47 Professor Hector L MacQueen 5 Assignation of All Sums Securities 73 Dr Ross G Anderson DEFECTS IN ACQUISITION AND HOW TO FIX THEM 6 Property Law, Fiduciary Obligations and the Constructive Trust 97 Lord Hodge 7 The Offside Goals Rule and Fraud on Creditors 115 Dr John MacLeod 8 A New Era in Conveyancing: Advance Notices and the Land 141 Registration etc. (Scotland) Act 2012 Ann Stewart 9 Bona Fide Acquisition: New in Scottish Land Law? 165 Professor David Carey Miller vi Essays in Conveyancing and Property Law ENJOYING PROPERTY 10 Res merae facultatis: Through a Glass Darkly 185 Sheriff Douglas J Cusine 11 The Use of Praedial Servitudes to Benefit Land outside the 203 Dominant Tenement Professor Roderick R M Paisley 12 Enforcing Repairing Obligations by Specific Implement 237 Professor Angus McAllister 13 Two Questions in the Law of Leases 255 Lord Gill THE FUTURE OF PROPERTY LAW 14 Conveyancing: A Bright Digital Future? 279 Professor Stewart Brymer 15 Islamic Mortgages 301 Professor George Gretton 16 Completion of the Land Register: The Scottish Approach 317 John King PROFESSIONAL NEGLIGENCE IN PRINCIPLE AND PRACTICE 17 Primary Clients, Secondary Clients, Surrogate Clients and 345 Non-clients: The Expanding Duty of Care of Scottish Solicitors Kenneth Swinton 18 The Court and the Conveyancing Expert 367 Lady Paton 19 The Role of the Expert Witness in Professional Negligence 381 Litigation Gerald F Hanretty QC 20 Robert Rennie: A Bibliography 395 Bernadette O’Neill Index 403 Contributors Ross G Anderson is a member of the Faculty of Advocates and an Honorary Research Fellow at the University of Glasgow. Lord Bonomy is a former Senator of the College of Justice. Stewart Brymer is the founder of Brymer Legal and an Honorary Professor in Law at the University of Dundee. David Carey Miller is Emeritus Professor of Property Law at the University of Aberdeen. Douglas J Cusine is a former Sheriff of Grampian, Highland and Islands and before that Professor of Conveyancing and Professional Practice of Law at the University of Aberdeen. Lord Gill is Lord President and Lord Justice General. George Gretton is Lord President Reid Professor of Law at the University of Edinburgh. Gerald F Hanretty QC is a member of the Faculty of Advocates. Lord Hodge is a Justice of the Supreme Court of the United Kingdom. Lord Hope of Craighead is a former Deputy President of the Supreme Court of the United Kingdom. John King is Business Development Director at the Registers of Scotland. Angus McAllister is Emeritus Professor of Law at the University of the West of Scotland. John MacLeod is a Lecturer in Commercial Law at the University of Glasgow. Hector L MacQueen is Professor of Private Law at the University of Edinburgh and a Scottish Law Commissioner. Bernadette O’Neill is a doctoral researcher at the University of Glasgow. Roderick R M Paisley is Professor of Scots Law at the University of Aberdeen. Lady Paton is a Senator of the College of Justice. Kenneth G C Reid is Professor of Scots Law at the University of Edinburgh. Ann Stewart is Head of Knowledge Management at Shepherd and Wedderburn. Kenneth Swinton is Division Leader (Law) at the University of Abertay. Professor Robert Rennie Preface Professor Robert Rennie held the Chair of Conveyancing at the University of Glasgow for 20 years prior to his retirement in July 2014. This collection of essays is a celebration of his extraordinary contribution to the development of Scots private law during that period. His many publications on the principles of property and professional negligence played an important role in shaping the rapid evolution of these areas of law over the past few decades, whilst simultaneously guiding practitioners through the new legal landscape which has resulted from those changes. In addition, his commitment and generosity as an educator has inspired generations of students, researchers and fellow academics. The essays in the collection have been written by Robert’s peers in the judiciary, academia and legal practice. We are delighted – though not surprised – that so many prestigious authors have been willing to honour Robert by sharing their own perspective on the legal issues which formed the focus of his work. We offer our thanks to all the contributors, particularly to Robert’s lifelong colleague and friend, Lord Bonomy, for his warm-hearted retrospective of Robert’s career to date. A special word of gratitude must also be extended to the Clark Foundation, whose generous support has made it possible for this volume to be published online. Robert has always been a strong proponent of the enhancement of legal practice through the use of new technology, and is committed to excellence in education. It seems most fitting, then, for this collection to benefit from the innovative open access publishing model which makes the research freely available to every student and practitioner of Scots law. Frankie McCarthy, James Chalmers and Stephen Bogle Note The Clark Foundation for Legal Education offers grants and scholarships to persons practising law in Scotland, whether as solicitors or advocates, and to persons studying at Scottish Universities or other institutions of higher education based in Scotland. The purpose of the Foundation is to promote and advance the legal and business education and training of Scots lawyers and students of Scots Law. Award holders can undertake (a) courses of study in Scots Law or comparative legal systems or the law of the European Community or foreign languages or business management or (b) the writing of legal textbooks. Alternatively they can undertake research in any one or more aspects of Scots Law and/or its relationship with other legal systems or the institutions of the European Community. For further information, contact [email protected] 1. Robert Rennie – A Career Retrospective Lord Bonomy I don’t think that it is just with the benefit of hindsight that I see the course of Robert’s career as having been plotted by the time he first graduated, still not yet twenty years of age. Like so many of his contemporaries from a modest or working class background, determined to make the most of the educational opportunities of the mid-1960s, he thrived in a student environment that in many ways resembled the school classroom. In his final undergraduate year, almost alone among his colleagues, he positively wallowed in conveyancing. It was a demanding class with five 9am lectures every week of each of the three terms. Every Friday of the first two terms Robert faced what for him was a challenging choice between indulging himself in another Jack Halliday master class or assuming his place between the posts as our football five-a- side goalkeeper. At the end of that year his rewards for making the correct choice and for his application to the study of conveyancing and its quirks and twists (he was even then its champion) were the McConnachie Bursary worth a staggering £300, the most valuable prize in the Law Faculty, an apprenticeship with Bishop, Milne, Boyd & Co., Jack Halliday’s firm, and a place as a doctoral student where he produced his thesis, “Floating Charges – a Treatise from the Standpoint of Scots Law.” Never judge a book by its cover, or indeed its title.
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