Scottish Human Rights Law Group

Classically at common law in Scotland, pursuers’ interests in the course of litigation may be protected by the taking out of an inhibition on the dependence which prevents the defender from alienating any heritable property in Scotland.    The remedy was available as of right once the Summons had passed the signet and needed no further court intervention although the court retained a jurisdiction to ensure that these remedies were not used oppressively.   The defender could come to court to make an application seeking discharge or variation of such orders on the grounds that they were being used nimiously and oppressively.    The practice of the court was often to discharge the order on the production of adequate alternative security by the defender, whether by his consigning sums with the court or producing a bond of caution.  In Karl Construction Ltd. v. Palisade Properties plc [1] Lord Drummond Young held that the practice in the Court Session of automatically granting on the signetting of a summon warrants to allow for inhibition on the dependence of the action was not compatible with the Convention requirement of respect for property rights as set out in Article 1 Protocol 1.     Compatibility with the “control of use” requirements of Article 1 Protocol 1 was said to require that four criteria be met: (i) the pursuer had to establish a prima facie case on the merits; the pursuer had to establish a specific need for the interim remedy; [2] (iii) the remedy could only be granted after a judicial hearing; and (iv) the defender should be entitled to damages if the remedy had been unjustifiable obtained against him.

In Amalgamated Roofing & Building Co v Wilkie [3] it was held that the validity of an inhibition on heritable property which was granted and duly recorded in the Register of Inhibitions and Adjudications in the course September 2000 was not called into question either by the decision in Karl Construction or the coming into force of the Human Rights Act 1998 Act.    The decision in Karl Construction was said to apply prospectively only; it did not invalidate any prior regularly obtained inhibition on the dependence which remained valid until either formally recalled or reduced.

[2] See Barry D. Trentham Ltd. v. Lawfield Investments Ltd., 2002 SLT 1094, OH decision of Lord Drummond Young for an example of the pursuer’s managing to establish a specific need for inhibition on the dependence against the defender.

[3] Amalgamated Roofing & Building Co v Wilkie, 2004 SLT 509