Экзамен зачет учебный год 2023 / SLC, Report on land registration. Vol 1

is Abigail? One possibility is that Derek knows both Erica and Abigail; he is accordingly in a position to reassure Erica that messages which can be unlocked with the public key that purports to be associated with Abigail do in fact come from her. A development beyond this is where the key-pair numbers are generated by a trusted third party who has been at pains to ensure that the private key has been issued to the person who actually is Abigail, and is prepared to guarantee that fact to those who wish to place reliance on electronic signatures created with that private key.

34.70 A few words about electronic signatures as they are currently used in the ARTL system. Signatures are held by individuals, rather than by firms. The digital signature is effected by the combined use of a card and a password. A card-reader is plugged into a USB port of the computer that is being used, and the card is inserted into the card-reader while the password is keyed in when the right screen appears. The signature then works like a seal or a watermark over the whole electronic document. The private key number is embedded in the card and exists nowhere else, not even in the records of the certification authority. The cardholder will in practice not know what the number is either, since it is unimaginably large and is embedded into the card by electronic means. It is a number that no one knows.

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Part 35 Prescription and registered titles

35.

Introduction

35.1Most legal systems have rules whereby a person who has had long-term possession of property, but who does not have a legally valid title, can eventually be protected by the law. Put the other way round, most legal systems say that paper owners who do not possess their property may find that a time will eventually come when the law will no longer protect their title. In Scotland this bundle of rules goes by the name of positive prescription. It is regulated by the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). As applied to the Register of Sasines, the basic rule is that a person can acquire land by meeting two main requirements. The first is the recording in the Register of Sasines of a disposition.1 If the disposition is valid, then positive prescription is irrelevant anyway. But if it is not valid, it would nevertheless become protected from challenge, if the disponee then could meet the second requirement, namely that of possessing the land for ten years. The ten years must come after the recording of the deed: possession before that time is irrelevant. Certain other requirements also have to be met, such as that the deed has the appearance of validity.2 As for the Land Register, we consider the situation below.

35.2Positive prescription is, as such, not a topic that forms part of this project on land registration. It is an area of substantive law in its own right, underpinned by policy decisions made over time. Reform would require an independent project. Nevertheless, there are certain aspects which cannot be avoided in the context of the present project. The question of when the Keeper should accept a non domino dispositions is discussed in Part 16. The present part of the Report deals with amendments to the 1973 Act.

Is positive prescription needed in the Land Register?

35.3 In the current scheme of land registration, positive prescription does not run unless the Keeper has excluded indemnity.3 In DP 125 we argued that this was an oversight in the drafting of the 1979 Act and we proposed that, as in the Register of Sasines, positive prescription should be capable of running on any title.4 Respondents were in agreement. If there is to be a system of positive prescription, there can be no good reason why it should apply to unindemnified (unwarranted) titles but not to indemnified (warranted) titles.5 Of course, a title that is warranted is unlikely to stand in need of positive prescription anyway. But occasionally it will. We therefore recommend:

1 Positive prescription can run on other deeds, but for simplicity we mention only dispositions. 2 Not "invalid ex facie" is how it is put in the 1979 Act, s 1.

3 1973 Act, s 1(1)(b) as inserted by the 1979 Act, s 10. 4 DP 125, Part 3.

5 In our new scheme, prescription is not the only means by which a defective title may be made good. The other is the integrity/realignment principle. The latter can validate a title more quickly than the former, but operates only if certain conditions are met. Hence there is scope for both.

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138.Positive prescription should apply to all titles registered in the Land Register.

(Draft Bill, s 86(1))

Changing registers

35.4 Does the transfer of a property from the Sasine Register to the Land Register interrupt the running of prescription? Current law is unclear on this, though it is understood that the view taken by the Registers of Scotland has always been that there is no interruption.6 In DP 125 we proposed that it should be made clear that the running of positive prescription is not interrupted by change of register.7 Respondents agreed. Accordingly we recommend:

139.Positive prescription running on a deed recorded in the Register of Sasines should not be considered as interrupted by first registration in the Land Register.

(Draft Bill, s 86(1))

"Exempt from challenge"

35.5Legislation on positive prescription has never expressly stated that the effect is that the right in question is acquired when the period of prescription has been completed. The current legislation says only that the result is that the possessor's title is "exempt from challenge."8 There is a certain division of opinion on what this means. Reid takes the view that the effect of prescription is that the right in question is acquired, ie that positive prescription confers title,9 while Johnston concludes that "the effect of completing prescription upon a sufficient title is… nothing to do with acquisition of ownership."10 On this latter theory, if Alice owns land but positive prescription runs in favour of Bob, then Alice continues to be the owner.11

35.6The uncertainty exists only where positive prescription operates on a void title. Where positive prescription operates on a voidable title, matters are clearer: the right to reduce is lost.12 Indeed, the "exempt from challenge" formula fits in better with voidable titles than with void ones.

35.7Although the scope of the present project does not extend to a general examination of the law of prescription, we have come to the conclusion that as far as the Land Register is

6 See Registration of Title Practice Book (1st edn, 1981), para H.1.07. Although this passage is not repeated in the second edition (2000), the Keeper's interpretation of the law remains the same: see Registers of Scotland InHouse Legal Manual, available online at http://www.ros.gov.uk/foi/legal/Frame%7EHome.htm.

7 DP 125, paras 3.10 and 3.11 (proposal 1(b)). 8 1973 Act, s 1(1).

9 Reid, Property, para 674.

10David Johnston, Prescription and Limitation (1999), para 14.14. He comments that this result is "inelegant" in para 14.13.

11A third theory is that once the period has run, the possessor is deemed always to have been the owner: the deed in the possessor's favour is retrospectively validated. This theory, by re-writing of the past, undermines the integrity of the register. We do not think this theory sound and note that it was disapproved in Hamilton v Dumfries and Galloway Council [2007] CSOH 96.

12On the basis of the view that voidability is indeed covered by the rules on positive prescription.

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concerned the uncertainty as to the effect of positive prescription on void titles is undesirable. It undermines the main function of the Register, which seeks to set forth what rights there are in any given plot of land at any given time and who has those rights. It is not necessary to consider here which theory is correct in respect of current law, but rather to determine which is the better theory from the point of view of sound policy. The answer seems self-evident. The second theory dooms the Register to an ever-increasing number of unrectifiable inaccuracies. Moreover, the person against whose title prescription has run, being still the proprietor, is presumably still able to dispone and grant subordinate real rights. That possibility does not cohere with modern land registration principles. Hence we have come to the conclusion that the law should be that the effect of positive prescription on a void title is to validate that title as from the completion of the prescription. The type of right will vary from case to case. It may be a right of ownership or it may be a subordinate real right such as a servitude.

35.8We do not suggest that the "exempt from challenge" formula should be replaced. We do not wish to meddle with the 1973 Act more than is necessary for the purposes of this project. Our recommendation is simply that the formula should be supplemented with a further provision to the effect that where the title is void, the "exempt from challenge" formula means that the title is validated as from the expiry of the prescriptive period. As a result it will be clear that positive prescription is, to use international terminology, acquisitive prescription. For consistency we think that the same clarification should apply generally to the first three sections of the 1973 Act: to limit it could be a source of confusion.

35.9Accordingly we recommend:

140.In sections 1 to 3 of the 1973 Act, the effect of positive prescription in relation to a void title should be to validate it as from the time when the prescriptive period is complete.

(Draft Bill, s 86(2))

Prescriptibility of the Keeper's obligation to rectify

35.10Under the current law, the right to have an inaccuracy rectified probably prescribes negatively after 20 years.13 In form this is a negative prescription, but in substance it seems to be a positive one. A person who is wrongly registered obtains, after 20 years, what is in effect a title exempt from challenge. Possession is not required. This back-door positive prescription seems to us unsatisfactory at best and at worst capable of working injustice. Suppose that the Register shows John as owner of a boundary strip. The Register is bijurally inaccurate and the neighbour Iona is the "true" owner. She is in possession. The Register is rectifiable because John is not a "proprietor in possession". Yet apparently she loses the property after 20 years.14

35.11Underlying the issue is the conception, which pervades the 1979 Act, that rights in land are in the Keeper's gift: the Keeper giveth and the Keeper taketh away. In this conception Iona's ownership is transmuted into just a personal right against the Keeper. She

13The issue has not been before the courts, but this is the standard view. See eg David Johnston, Prescription and Limitation (1999), para 3.04.

14Unless her possession somehow prevents negative prescription from running.

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has no real right, and she can acquire a real right only if the Keeper gives it to her. In the new scheme Iona is the owner as well as the possessor of the boundary area and it is the Keeper's duty to ensure that the Register reflects that fact. The Keeper and the Register take on what we consider to be their proper (if more modest) role. We recommend:

141.The obligation to rectify an inaccuracy should be imprescriptible.

(Draft Bill, s 97, sch 8, para 21(11))

Prescriptibility of the Keeper's obligation to compensate

35.12 Under current law, a claim for indemnity may be extinguished by prescription after 20 years.15 If so, by the standards of other countries that is relatively generous. In England and Wales the limitation period is six years after the claimant knew or ought to have known of the claim.16 The model legislation proposed for Canada allows only two years.17 The limitation period in other Torrens systems tends to begin with the date of the loss and not with the, often much later, date of its discovery. In New South Wales, for example, the right to claim compensation is extinguished six years after the loss.18 On the whole, however, we are content with the rule currently operating in Scotland. It was a matter of deliberate choice by the Henry Committee.19 It is the same as the rule for warrandice. It gives a reasonable, but not excessive, opportunity to make a claim, particularly when it is borne in mind that the 20 years runs from the date of the loss and not from the date of its discovery. A period of five years – the only alternative offered by the 1973 Act – would be too short unless special provision were made postponing its start to the date when the loss was, or ought to have been, discovered.20 Respondents agreed with our proposal that "a claim for indemnity should continue to be subject to the 20 year negative prescription."21 As we mentioned above, we now think – as we did not when we published DP 128 – that there might be some element of doubt about the existing law, and accordingly we think that the 20-year period should in future be stated expressly in the 1973 Act. But on one particular matter we now think that the short negative prescriptive period (five years) would be appropriate. The draft Bill provides that when the Register is rectified in favour of someone, that person should be entitled to compensation for loss caused by the fact that the Register was temporarily inaccurate.22 The typical case is where an owner comes to sell but it then comes to light, at the last minute, that the Register is inaccurate, so that the sale has to be abandoned. The disappointed

151973 Act, s 7. The 5-year prescription is excluded if the Keeper's obligation to pay is an "obligation relating to land": see Sch 1, para 2(e). But the scope of the phrase "obligation relating to land" is not certain. See David Johnston, Prescription and Limitation (1999), para 6.58.

16Land Registration Act 2002, Sch 8, para 8; R B Roper, C West, M Dixon, D Fox, S R Coveney, S Wheeler and P Milne, Ruoff & Roper on the Law and Practice of Registered Conveyancing (looseleaf), para 47.025.

17Joint Land Titles Committee for Alberta, British Columba, Manitoba, The Council of Maritime Premiers, Northwest Territories, Ontario, Saskatchewan and Yukon, Renovating the Foundation: Proposals for a Model Land Recording and Registration Act for the Provinces and Territories of Canada (1990), pp 33–4 and 125 (s 7.3).

18Real Property Act 1900, s 131(2) as inserted by the Real Property Amendment (Compensation) Act 2000, s 3 and sch 1, para 12.

19Henry Report, p 50, note 4.

20Such a provision can already be found in the 1973 Act but only in respect of obligations to make reparation for loss caused by an act, neglect or default: see s 11(1) and (3). It is thought that an obligation to pay indemnity would not normally fall within this definition. For a discussion, see D Johnston, Prescription and Limitation (1999), paras 4.17–4.22.

21DP 128, para 9.38 (proposal 40(3)).

22Draft Bill, s 55.

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seller should be able to obtain compensation for the lost sale.23 The short negative prescription seems ample for such cases.

35.13The Keeper is also liable under the draft Bill, as under the 1979 Act, for losing documents and for issuing extracts that are not true copies or providing information as to the contents of the register that is inaccurate.24

35.14We recommend:

142.In relation to compensation for breach of the Keeper's warranty,25 and to compensation for losses arising from the realignment provisions26 the period of negative prescription should be twenty years. But the period should be five years for other cases.

(Draft Bill, s 97, sch 8, para 21(9) and (10))

Transitional issues

35.15 Issues concerning transition from the system currently operating under the 1979 Act to that which would operate under our recommendations are discussed in Part 36. But it makes sense to discuss at this point the transitional aspects of our recommendations about positive prescription. Our recommendations would result in a small change in the treatment of cases where less than 20 years before commencement of the new provisions, registration of a void deed in the Land Register had been secured by the fraud or carelessness of the applicant for registration. A series of examples will serve to illustrate this point; to show the interaction of our proposed amendments to the 1973 Act with our transitional provisions on inaccuracies in the Register as at the date of commencement of the new scheme. The examples assume that the new provisions would be commenced on 3 January 2014.

A: prescriptive periods completed pre-commencement

35.16Example 1. Aesculapius holds on a void deed recorded in the Register of Sasines on 1 June 2003. He possesses continuously from that date. On 1 June 2013 his title is validated by section 1(1)(a) of the 1973 Act. Forgery aside, any element of fraud or carelessness on his part is irrelevant to the result. The law has always been, for good or ill, that positive prescription is capable of operating even if there has been bad faith or negligence.

35.17Example 2. Benedicta holds on a void deed registered in the Land Register on 1 July 2003, subject to exclusion of indemnity. She possesses continuously from that date. On 1 July 2013 her title is validated by section 1(1)(b) of the 1973 Act and the Register thereby ceases to be bijurally inaccurate. The result is the same whether or not there has been any fraud or carelessness on her part.

35.18Example 3. Cliff holds on a void deed registered in the Land Register on 1 August 1993 without exclusion of indemnity. He possesses from that date and so is a "proprietor in possession" for purposes of section 9(3) of the 1979 Act. He is not fraudulent or careless.

23For this ground of liability, see Part 27.

24Draft Bill, ss 72 and 73.

25See Part 22 and draft Bill, Part 5.

26See Part 23 and draft Bill, Part 6.

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Nothing happens on 1 August 2003, for under current law positive prescription does not run on an indemnified title. The Register continues to be (i) bijurally inaccurate but (ii) unrectifiable. On 1 August 2013 any possibility of rectification is (probably27) extinguished by long negative prescription and, whilst the Register remains bijurally inaccurate, Cliff can now safely go out to the shops.28

35.19 Example 4. Diane holds on a void deed registered in the Land Register on 1 September 1993 without exclusion of indemnity and possesses from that date. She caused the inaccuracy by her fraud or carelessness.29 Her title is vulnerable to rectification until 1 September 2013 and after that it remains bijurally inaccurate, but becomes invulnerable to rectification.30

B: straddling periods – effect of schedule 6 paragraphs 28 and 33

35.20 Paragraph 28 of schedule 6 to the draft Bill provides for pre-existing rectifiable inaccuracies31 in the Register (ie inaccuracies on the eve of the designated day) as follows:

"If there is in the register, immediately before the designated day, an inaccuracy which the Keeper has power to rectify under section 9 of the 1979 Act (rectification of the register) then, as from that day—

(a)any person whose rights in land would have been affected by such rectification has such rights (if any) in the land as that person would have if the power had been exercised, and

(b)the register is inaccurate in so far as it does not show those rights as so affected."

35.21Example 5. Ethelred holds on a void deed registered in the Land Register on 1 July 2005 subject to exclusion of indemnity. He is in possession. On the eve of the designated day (2 January 2014), the Keeper has power to rectify because of the exclusion of indemnity.32 On 3 January 2014 Ethelred ceases to be proprietor (as the "true" owner has been reinstated as proprietor) and the Register becomes actually inaccurate33 in continuing to show him as proprietor.

35.22Example 6. Fiona holds on a void deed registered in the Land Register on 1 August 1995 without exclusion of indemnity. She is in possession. She caused the inaccuracy by fraud or carelessness and thus on 2 January 2014 the Keeper has power to rectify. On 3 January 2014, by virtue of paragraph 28, she would cease to be owner and the Register

27It is probable but not settled that the right to rectification is extinguished by long negative prescription. See para 35.10 above.

28Whilst there is no case directly in point, it appears from the developing case law on the 1979 Act, such as Kaur v Singh 1999 SC 180, and Safeway Stores plc v Tesco Stores plc 2004 SC 29, that even if Cliff has possessed continuously for the first ten years, he will be vulnerable to rectification between years 11 and 20 if at any stage he is out of possession (perhaps only momentarily) and so not a "proprietor in possession" for purposes of section 9(3) of the 1979 Act.

29A proprietor in possession who has by fraud or carelessness caused the inaccuracy is not protected from rectification: 1979 Act, s 9(3)(a)(iii).

30On the assumption that negative prescription operates.

31There is also the issue of unrectifiable inaccuracies. The schedule also deals with those: see below.

321979 Act, s 9(3)(a)(iv).

33Whereas hitherto it has been bijurally inaccurate.

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would become actually inaccurate. However, as will be seen, positive prescription comes into play in this case.

35.23 Paragraph 33 of schedule 6 provides as follows for pre-existing unrectifiable inaccuracies:

"If there is in the register, immediately before the designated day, an inaccuracy which the Keeper does not have power to rectify under section 9 of the 1979 Act, then on that day it ceases to be an inaccuracy."

35.24 Example 7. Gordon holds on a void deed registered in the Land Register on 1 September 1995 without exclusion of indemnity. He is in possession and neither fraudulent nor careless. On 2 January 2014 the Keeper is powerless to rectify. On 3 January 2014 the Register ceases to be bijurally inaccurate.

C: straddling periods – operation of new 1973 Act sections 1A and 1B

35.25Section 86(1) of the draft Bill inserts new sections 1A and 1B into the 1973 Act. Section 86(3) provides that these provisions do not apply in relation to a continuous period which has expired before the coming into force of the section. The provisions do apply to a continuous period which has commenced but not expired.34

35.26Example 8. Hester holds on a void deed recorded in the Register of Sasines on 1 July 2005 and is in possession. On 1 July 2015 the new section 1B of the 1973 Act operates to confer title. Section 1B operates whenever a ten-year period ends on or after 3 January 2014, even if it is partly before that date. The practical result is unchanged from that reached under old section 1(1)(a) – see example 1 above.

35.27Example 9. Iain holds on a void deed registered in the Land Register on 1 August 2005 subject to exclusion of indemnity. He is in possession. On 3 January 2014 he ceases to be proprietor by virtue of schedule 6 paragraph 28 but he remains entered on the Register. The Register ceases to be bijurally inaccurate and becomes actually inaccurate. On 1 August 2015 the new section 1A operates to confer title and hence the Register ceases to be actually inaccurate. Section 1A operates whenever a ten-year period ends on or after 3 January 2014, even if it is partly before that date. The practical result is unchanged from that reached under old section 1(1)(b) – see example 2 above.

35.28 Example 10. Janet holds on a void deed registered in the Land Register on 1 September 2005 without exclusion of indemnity and is in possession. She caused the inaccuracy by fraud or carelessness and thus on 2 January 2014 the Keeper has power to rectify. Accordingly on 3 January 2014 by schedule 6 paragraph 28 she ceases to be owner and the Register becomes actually inaccurate. However she continues to be entered as proprietor on the title sheet. On 1 September 2015 the new section 1A operates to confer title and make the Register accurate. In contrast to example 4, Janet's right has been perfected after 10 years whereas under the old law it would have remained liable to rectification until 2025.

34 This is consistent with s 14(1) of the 1973 Act, providing that, on commencement of that Act, time which had run prior to the commencement date would be reckonable toward prescriptive periods ending after commencement.

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35.29 Example 11. Kevin holds on a void deed registered in the Land Register on 1 September 1995 without exclusion of indemnity and he is in possession. He caused the inaccuracy by fraud or carelessness. Nothing happens on 1 September 2005. On 2 January 2014 the Keeper has power to rectify. On 3 January 2014, under schedule 6 paragraph 28, Kevin would cease to be owner and the Register would thus become actually inaccurate. But simultaneously the new section 1A operates (in respect of the ten year period from 4 January 2004 to 3 January 2014 inclusive) to validate the title and so the Register becomes accurate, with Kevin's right having become unchallengeable. In contrast, under the old law (example 4), Kevin's right would have been vulnerable to rectification until September 2015.

Retrospectivity?

35.30 If the provisions were fully retrospective, in the circumstances set out in example 11, Kevin's title would be perfected back in time to the tenth anniversary of the original registration, ie to 1 September 2005. But this is not what section 86(3) says. Between 1 September 2005 and 2 January 2014 Kevin's registered title is – and always was – rectifiable. There would be no change to parties' rights at dates prior to the commencement of the provisions.

Prejudice?

35.31 Could our recommendations cause anyone any prejudice? In substance the answer is negative. The only prejudice would be that in certain types of case the new legislation would mean that the Register would cease to be rectifiable earlier than would be the case if the current law remained in force. Take Kevin's case. Under current law Octavia has (probably) until 2015 (twenty years after the original registration) to insist on rectification of the Register. Under our recommendations her right would be lost in 2014. We think that this result is a sound one. The normal rule of our law is that title is lost as a result of ten years of prescriptive possession in favour of another party, and thus the current position given in example 4 above is an anomaly. Assuming that Benedicta in example 2 was fraudulent or careless, there is no valid reason for examples 2 and 4 to produce different results as a result of the essentially arbitrary point of whether or not the Keeper chose to exclude indemnity.35 As the current law is open to criticism for being arbitrary and creating uncertainty, we consider it good policy to restore it to a state of coherence. We return to this point again in our discussion of human rights considerations at the end of this part. It should be stressed that nothing in our recommendations would suddenly deprive Octavia of her right to have the Register rectified. After the draft Bill's enactment there would be a further period on top of the time since 1995 that she has already had for her to act.

Postscript: J A Pye (Oxford) Ltd v UK

35.32 Policy arguments for and against positive prescription are not matters for the present project. However, the European Court of Human Rights has recently considered the subject, and it is thus appropriate to say something about the human rights dimension.

35 If the Keeper is suspicious of the deed and decides to exclude indemnity, the true owner loses the right of action sooner than where the Keeper's suspicions are not aroused.

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35.33In the Pye case, the Court considered whether a system corresponding broadly with our system of positive prescription was compatible with Article 1 of the First Protocol to the European Convention on Human Rights.36 J A Pye (Oxford) Ltd owned about 50 acres in rural Berkshire. It was a property developer, and the area was part of its land bank, to be made use of as and when planning permission could be obtained. Neighbouring farmers, Mr and Mrs Graham, used the land for grazing, without paying rent, and after 12 years37 they claimed that they had acquired title. (Unlike Scots law, English law does not require any prior registration to be effected before time can begin to run.) They then applied for the company's name to be deleted in the Land Registry and their own substituted. Litigation between the company and the farmers ensued, in which the latter were successful.38 The company then claimed that its rights under Article 1 of the First Protocol had been breached, and sought £10,000,000 compensation, plus the £800,000 legal costs incurred in the unsuccessful litigation with the farmers, from the UK Government. The Court held in favour of the company by a 4/3 majority.39 The UK Government then sought to have the case reheard in the Grand Chamber. This request was granted. The result of the rehearing was a 10/7 majority decision in favour of the UK Government.40 The details of the competing views are too complex to be usefully summarised here, but in essence the majority in the Chamber considered that the company's loss of the property was an unjustifiable breach of its rights while the majority in the Grand Chamber considered that the legislation fell within the state's margin of appreciation: "Even where title to real property is registered, it must be open to the legislature to attach more weight to lengthy, unchallenged possession than to the formal fact of registration."41 "Such arrangements fall within the State's margin of appreciation, unless they give rise to results which are so anomalous as to render the legislation unacceptable."42

35.34Had the initial decision been upheld, an immediate review of our law of prescription might well have been necessary. In the light of the Grand Chamber decision, that is not now required. Although the English system which was ultimately upheld is not the same as the Scottish system, its similarity means that we have little doubt that the latter is also ECHRcompatible as judged on the basis of the majority opinion. Nevertheless, the narrowness of the result, combined with the fact that the Court is not bound by its own precedents, means that there is no room for complacency. In devising the new statutory framework for the Keeper's accept/reject decision,43 we have been conscious of the ECHR dimension.

35.35We have also considered the ECHR implications of the narrow transitional issue noted above. In that unusual case, a "true owner" such as Octavia who under current law might have the power, by seeking rectification under section 9 of the 1979 Act, to regain ownership for up to twenty years after registration of an adverse deed could under our

36The system in question was English law as it was before the Land Registration Act 2002. Major changes to English law were effected by that Act.

37At that time the relevant period in England. It has since been reduced to ten.

38J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419.

39J A Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3. For Scottish reactions to the Chamber decision see David Johnston, "J A Pye (Oxford) Limited v United Kingdom: deprivation of property rights and prescription", (2006) 10 EdinLR 277; Ken Swinton, "Prescription, Human Rights and the Land Register: Pye v UK", (2005) 73 Scottish Law Gazette 179; George L Gretton, "Pye: A Scottish View", (2007) 15 European Review of Private Law

40J A Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45. For discussion of the Grand Chamber decision from a Scottish standpoint, see George L Gretton, "Private Law and Human Rights" (2008) 12 EdinLR 109.

41J A Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 at para 74 of the majority opinion.

42J A Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 at para 83 of the majority opinion.

43See Part 16.

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