Lord Ordinary grants rectification of 1995 sale of Kinross farm steading after three actions raised in connection with it

About this case:

• Citation:
  [2022] CSOH 66
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Turnbull

Robert Purvis and his wife Isobel purchased part of the land at Cavelstone Farm, Kinross, from defender Robert Drysdale, for whom power of attorney was held by his two daughters. Mr and Mrs Purvis sought rectification of the missives and of the disposition so as to include areas of the land specified in a letter of 7 August 1995. Two other actions relating to the farm were considered simultaneously.

The cases were heard by Lord Turnbull in the Outer House of the Court of Session. Moynihan KC and Blair, advocate, appeared for Mr Drysdale and Lord Davidson of Glen Clova KC and Massaro, advocate, for Mr Purvis.

Catastrophic error

In 1995, Mr Drysdale was sequestrated over a personal debt of £10,000 owed to HMRC and a £200,000 debt owed by his farming partnership. He instructed that Cavelstone Farm be put up for sale in 4 lots. In August 1995 Mr Purvis, a local businessman, instructed a now defunct firm of solicitors, Johnston and Herron, to put in an offer to purchase the farm steading, identified as Lot 2 of 4, which he intended to use for his then hobby of vehicle restoration.

In the plans accompanying the sales particulars, the farmhouse in which Mr Drysdale lived was shown despite it comprising a separate lot. Having learned that Mr Drysdale wished to stay on at the farmhouse and only wished to sell enough land to satisfy his creditors, Mr Purvis decided to make an offer that would facilitate this. The offer letter dated 7 August 1995, the original of which was lost, was for approximately two thirds of the steading area as well as part of the farmland.

The plan attached to the qualified acceptance letter prepared by J&H differed from the one attached to the offer letter, most notably excluding the steading from the subjects of sale. This was described in evidence by solicitor Mr Johnston as a “catastrophic error” on the part of his firm that arose when the plan was redrafted following an agreement to change the fields conveyed to Mr Purvis. Nonetheless, Mr Purvis took possession of the steading and carried out a significant amount of work on it and other farm buildings in the area he had purchased, in effect treating the steading as his own.

A dispute arose as to the extent of the area conveyed to Mr Purvis following a fire in one of his sheds. By this time a decree of acrimony had arisen between Mr Purvis and Mr Drysdale’s daughters, Mr Drysdale himself having entered a nursing home after suffering from a stroke. It was submitted for the pursuer that there was a common intention held by himself and Mr Drysdale for the steading to be conveyed to him and invited the court to accept Mr Johnston’s evidence that there had been an error in the framing of the qualified acceptance.

Reliable evidence

In his decision, Lord Turnbull said of the evidence of Mr Purvis: “I accept that he took a liking to Mr Drysdale and felt sorry for him and his wife in the predicament in which they found themselves, that he came to decide that he could get on with Mr Drysdale and that operating part of the farm could be an attractive hobby for him. I accept that he discussed his proposal with Mr Drysdale and decided to make an offer which would allow him and his wife to remain living at the farmhouse and farming part of the land. However, I also accept that the essential part of the offer as far as Mr Purvis was concerned was the steading.”

On whether the evidence supported Mr Purvis’ contentions, he said: “In the end of the day there is perhaps no one who would have a better understanding of what the parties to the transaction had in mind to agree than the solicitor who acted for all of them. It is clear from Mr Johnston’s evidence that an error was made which had the result of excluding the steading. It seems likely that the error was contributed to by the passage of time between 7 and 24 August and that in the transfer of the papers from Mr Johnston to Mr Baxter sight was lost of the importance of the plan headed ‘Cavelstone Steading’ and the part which it had in the transaction.”

Addressing the defender’s argument that there was no common intention to transfer the steading, he added: “The entire proposition is undermined by what occurred later. Mr Purvis took possession of the larger part of the steading and proceeded to transform it. He did so with the knowledge and, at times, active participation of Mr Drysdale. He treated it as if it was his own, to the obvious knowledge of Mr and Mrs Drysdale. I do not accept that Mr Drysdale would simply have stood by and allowed Mr Purvis to occupy and build upon land and allow him to renovate buildings, which he believed to be his, over many years, without raising the matter with him.”

Lord Turnbull concluded: “I accept that a high quality of evidence is required to persuade the court to grant rectification of written documents such as feature in this case and that the party bearing the burden of proof faces a stiff hurdle to overcome. In my opinion, the evidence led before me provides a cogent and compelling case for rectification and it would be an injustice to decline to give effect to it. I shall therefore order rectification of both the missives and the disposition. The consequence of this decision is that the action for declarator brought by Mr Drysdale must fail.”

For these reasons, Lord Turnbull therefore granted decree for Mr Purvis in the action for rectification.