|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Macfadyen
Lord Johnston
|
[2006] CSIH 16
A730/04
OPINION OF THE LORD
JUSTICE CLERK
in
RECLAIMING MOTION
by
ROBERT BELL
Pursuer and Reclaimer;
against
(First) INKERSALL
INVESTMENTS LIMITED; (Second) PROSPER PROPERTIES LIMITED; and (Third) MICHAEL
WOODCOCK
Defenders and Respondents:
_______
|
For pursuer and reclaimer: Nicoll; Drummond Miller, WS
For defenders and respondents:
Joughin; Digby
Brown
15 March 2006
Introduction
[1] The
defenders severally own tracts of agricultural land at Kirkconnell,
Dumfriesshire that are known collectively as Rigg Estate and Nethercairn
Farm. I shall refer to the aggregate of
this land as "the estate."
[2] Over
a number of years the pursuer acted as agent for the defenders in relation to
various matters on the estate, including the letting of cottages and other
properties. It is not disputed that in
2000-2003 the first and second defenders gave the pursuer a series of seasonal
grazing lets over various parts of the estate and that in April 2002 the first
defender gave the pursuer a short assured tenancy of Rigg Farmhouse.
[3] In
2004 the pursuer fell out with the third defender. He then claimed that he had an agricultural
tenancy over the whole of the estate.
[4] The
first defender served notice terminating the short assured tenancy as at 31 March 2005 and the
first and second defenders each raised two summary cause actions against the
pursuer in Dumfries Sheriff Court for
removing and ejection respectively. In
the actions for removing, the defenders alleged that the pursuer was in breach
of the relevant grazing let. In the actions
of ejection, they averred that he had occupied land not covered by the
let. These defenders also raised similar
actions against the pursuer in the ordinary court which remain in dependence. In his defences to each of them the pursuer
avers, inter alia, that the grazing
let does not "reflect the whole extent of the parties' agreement in relation to
the tenancy."
[5] In
November 2004 the pursuer raised the present action in which he concludes for
interdict in the following terms:
"For interdict against the Defenders or anyone on
their behalf from disturbing or interfering with the Pursuer's peaceful
possession of the lands known as and forming the Rigg Estate; and that in particular by breaking open locks
and chains on the buildings or field enclosures there occupied by the Pursuer,
by removing the Pursuer's stock, equipment or other belongings therefrom, or by
placing locks or chains on said buildings or field enclosures against the
Pursuer and for interdict ad interim."
The action is based on a claim that
the pursuer has a tenancy created in the following way.
"The pursuer has been in occupation of the Rigg
Estate by agreement of the defenders since February 2002 and has paid rent and
had occupation from year to year. The stock have never been removed from the ground. Buildings have been occupied and repaired and
renewed. Works of improvement on the
estate have been carried out. All of the
foregoing are apt to exclude the effective operation of said grazing lets as
regulating or as truly representing the parties relationship" (cond 4).
The pursuer avers that despite the
sheriff court proceedings, he "received intimation" that the defenders would
give or had given instructions to "others on their behalf" to take the actions
referred to in the conclusion and that he is reasonably apprehensive that the
defenders intend to effect his removal brevi
manu (cond 5).
The interim interdict and its aftermath
[6] On
5 November 2004, the date
of signeting, the pursuer moved ex parte
for interim interdict in terms of his
conclusion. As is now clear, there was
no particular urgency at that time.
Those acting for the pursuer had no evidence, other than the pursuer's own
say-so, that the defenders proposed to act in the manner alleged. The Lord Ordinary, Lord Emslie, was not
informed that, while the pursuer now claimed that he had had a tenancy over the
entire estate since February 2002, numerous parts of the estate were subject to
leases to third parties that had been negotiated by the pursuer himself: nor was the Lord Ordinary informed that by
letter dated 6 August 2003 the pursuer's solicitors had intimated to the first
defender that the pursuer would be interested in obtaining tenancies of two
specific parts of the estate. When
counsel for the pursuer addressed the Lord Ordinary on the motion, he did not
produce or refer to the grazing lets, of which he was aware. All of these documents were at odds with the
pursuer's claim. On the basis of this
selective presentation of the circumstances, counsel obtained interim interdict.
[7] The
defenders thereupon lodged in process five grazing lets, each for a period of
less than a year, two granted by the first defender dated 21 October 2002 and 3
October 2003 and three granted by the second defender dated 27 October 2000, 21
October 2002 and 3 October 2003. Each
was signed by the pursuer. Each required
the pursuer to remove his stock from the land at the expiry of the let (cl 4) and
in each the pursuer acknowledged that nothing in the agreement implied security
of tenure under the Agricultural
Holdings (Scotland) Act 1991 or any other legislation (cl 13). The defenders lodged numerous agreements
vouching the letting of various houses and cottages on the estate. Six of them were witnessed by the
pursuer. The defenders also lodged the
letter to the first defender dated 6 August 2003. In it the
pursuer's solicitors, Pollock and McLean, Sanquhar, said that the pursuer would
be interested in a limited duration tenancy of Rigg Villa Farm and a lease of a
further area of 484.64 ha with certain former mine buildings at the entrance to
Crockroy and three small paddocks to the north of Rigg farmhouse and
steading.
[8] On
19 January 2005 Lady
Paton, having heard parties, recalled the interdict. Her reasons are set out in an Opinion dated 12 April 2005. The pursuer now reclaims against Lady Paton's
interlocutor.
The Lord Ordinary's reasons
[9] Lady
Paton held that there was just sufficient on record to make out a prima facie case that the pursuer had a
protected tenancy rather than a series of grazing lets (para [62]). She referred to Morrison-Low v Paterson (1985 SLT 255) on which counsel
for the pursuer relied (ibid). However, she considered that two other issues
had a bearing on the question of recall, namely balance of convenience and the
form of the interdict sought (para [63]).
[10] On balance of convenience, the Lord Ordinary considered that
since the defenders had made clear that they did not seek to eject the pursuer brevi manu, the interim interdict was unnecessary.
On the other hand, the pursuer's perception of his rights in terms of
the interim interdict was having
disruptive effects on the tenants of houses and cottages on the estate and was
impeding the administration of the estate in various ways (para [65]).
[11] The Lord Ordinary was also of the view that the conclusion for interim interdict lacked specification
in its reference to the "lands known as and forming the Rigg Estate," not least
in the absence of a plan to which the conclusion could be related and in the
light of a dispute between the parties on the question whether Nethercairn Farm
was part of Rigg Estate (para [66]). She
also commented that the reference in the interim
interdict to "peaceful possession" was unsatisfactory in view of the pursuer's
perception of what peaceful possession entitled him to do. She referred to numerous examples of
high-handed behaviour on the part of the pursuer after he obtained the interim interdict, such as grazing his
sheep on other tenants' ground, putting locks on other tenants' outbuildings,
driving a quad bike over some tenants' yards and occupying a field that was let
to the tenant of one of the cottages.
She also alluded to other allegations of obstructive conduct that I need
not rehearse (paras [67], [69]).
[12] On the whole matter the Lord Ordinary concluded that the
pursuer's presence on the estate and the terms of the interim interdict had resulted in his acting as if he were in
charge of it with the power to put animals to graze on any area, to control or
direct other tenants as to the way in which they could enjoy their tenancies,
and to make estate management decisions possibly involving Government and other
bodies (para [67]).
The grounds of appeal
[13] Counsel for the pursuer submitted that on the question of
balance of convenience the Lord Ordinary erred in law in accepting the
defenders' word that they did not propose to eject the pursuer brevi manu. She failed to have regard to the risk that if
the interdict were to be recalled, the defenders would take matters into their
own hands. She also erred in law in
having regard to the pursuer's perception of the effect of the interdict rather
than to the restrictions actually suffered by the defenders in consequence of
it. The defenders' representations on
this point were unfounded or exaggerated.
[14] On the question of specification, counsel submitted that there
was no need to specify what "Rigg Estate" meant. It meant the total of all of the defenders'
land. The defenders knew what they
owned.
The legislation
[15] Under the now repealed section 2(2) of the Agricultural
Holdings (Scotland) Act 1991,
which applied during the relevant period in this case, a let of land entered
into in contemplation of the use of it only for grazing or mowing during some
specified period of the year did not attract security of tenure. It is not disputed that, on the face of them,
the grazings lets lodged by the defenders complied
with the requirements of section 2(2).
The parties' pleadings
[16] The pursuer's pleadings in this case are unsatisfactory. While the pursuer seeks interdict on the
basis that he has a tenancy over "The Rigg Estate," he has no conclusion for
declarator of the existence of any such tenancy, or of the source of it, or of
the extent of it, and he does not specify the basis of his alleged tenancy in
his averments. He merely avers that four
actions have been raised against him in Dumfries Sheriff Court by the defenders
and that a defence has been intimated on the basis that he is tenant of Rigg
Estate as an agricultural holding with security of tenure under the
Agricultural Holdings (Scotland) Acts (cond 3).
His whole claim rests on the unspecific averments in condescendence 4
that I have quoted.
[17] The defenders have pled a detailed defence. They aver that the pursuer was tenant of Rigg
Farmhouse in terms of the now terminated short assured tenancy; and that since
October 2000 the pursuer has entered into a number of agreements with the first
and second defenders to take parts of the estate on "grazings licenses" for
periods of less than a year. The
defenders specify these now expired agreements by
reference to dates, field numbers and a plan.
They also refer to the letter dated 6 August 2003 from Pollock and McLean (ans 2). The pursuer has not replied to any of these
averments.
[18] The defenders aver that after about 1999 the pursuer acted as
agent for the first and second defenders and in that capacity arranged the
letting of various houses on the estate to third parties. They specify eight such houses. They give details of the lets of five of
them. They specify by field numbers all
those parts of the estate over which, they aver, the pursuer has never had
rights of any kind. They refer in detail
to the practical difficulties created by the pursuer's behaviour on the
subjects in relation to various arrangements between the defenders and third
parties (ans 4). The pursuer has not
replied to any of these averments.
Conclusions
The interim interdict
[19] Interim interdict ought not to be
applied for ex parte unless there are
circumstances of genuine urgency. If a
party contends that such urgency exists, he must satisfy the court to that
effect. Since the defenders were seeking
to recover vacant possession by means of responsible litigation, and had taken
no unlawful steps to evict the pursuer, it is difficult to see why the pursuer
should have been "reasonably apprehensive" that the defenders proposed to take
matters into their own hands in the manner that he alleged. Even a year after the interim interdict was recalled, counsel for the pursuer was unable
to provide us with any objective justification for the pursuer's alleged
apprehensions. In my opinion, the
pursuer had no proper basis for applying for the interim interdict.
[20] I am also of the opinion that those acting for an applicant for
interdict have a stringent professional obligation to draw to the attention of
the court all relevant circumstances, whether favourable or unfavourable to the
application. I am certain that if the
Lord Emslie had had the circumstances fully disclosed to him, he would have
refused interim interdict out of hand
or would have continued the motion to enable the defenders to be heard. In my view, the application for interim interdict was presented to Lord Emslie
on an uncandid basis. If that had been
brought to Lady Paton's notice, she would have been justified in recalling the
interdict on that account.
[21] This case demonstrates the far-reaching difficulties that may
follow from the granting of an interim
interdict ex parte in cases of this
kind. Merely by involving the defenders
in these attritional litigations the pursuer has retained occupation of much of
the estate for well over a year. It now
appears that by abusing the procedures of the court in this process, he may
have obtained further unwarranted advantages.
There was information before the Lady Paton, which she was disposed to
accept, that the pursuer has opportunistically used the interdict to invade the
rights of existing tenants and to extend his occupation of the estate even
further. If that information is correct,
and if it should be established that the pursuer's claim is groundless, his
potential liability in damages for this interdict, which was granted periculo petentis, may be insufficient
redress for those whose rights he has invaded.
Relevancy
[22] The Lord Ordinary was of the view that the pursuer had just
sufficient on record to make out a prima
facie case. I do not agree. In my opinion, the pursuer's pleadings are
irrelevant for lack of specification on the critical questions to which I have
referred and for their failure to reply to the detailed defences which, if made
out, would be a complete answer to the action.
[23] But the action is irrelevant for a more fundamental
reason. Before the Lord Ordinary,
counsel for the pursuer relied on Morrison
Low v Paterson (supra) in submitting that the pursuer's
alleged tenancy was constituted by his continuous occupation of the land over a
period of years and by his payment of rent therefor. In my opinion, that submission is based on a
misunderstanding of the law. In Morrison-Low v Paterson (supra) there was no document
constituting the lease claimed by the defenders; but there was evidence of
continuous occupation by the defenders over several years with payment of
annual rents. The House of Lords held,
in the words of Lord Keith of Kinkel, that
"where a proprietor admits
someone into the possession of an agricultural holding, or maintains him in such
possession without any pre-existing right thereto, and regularly accepts rent
from him, there is an inescapable inference that a tenancy has been brought
into existence, and it is of no moment that no particular occasion can be
pointed to upon which the parties agreed to the one granting and the other
taking a tenancy" (ibid, at p 268).
[24] This is not such a case.
In this case there is a series of grazings lets, each signed by the
pursuer, which prima facie qualify
under the former section 2(2) of the 1991 Act.
The pursuer does not suggest that any of these lets was a sham
transaction. He does not aver that he
made any payments of rent other than those due under the lets. His allegedly continuous occupation of the
land to which the lets relate is consistent with his having been in breach of
clause 4 in each case. Likewise, his
unspecific averments that he has occupied, repaired and renewed buildings and
carried out works of improvement on the estate are consistent with his having
illegally exceeded his rights under the lets.
Since the pursuer does not attack the validity of the lets, it is not
open to counsel for the pursuer to submit, in the face of them, that the
pursuer occupies the land to which they relate under an entirely different form
of contract. Moreover, in relation to
the land to which the grazing lets did not relate, the pursuer, in my view, has
no relevant averments that any of the defenders granted him a tenancy of any
kind.
[25] I conclude therefore that the claim to a tenancy as presently
pled is irrelevant. That would have been
a sufficient reason for the recall of the interim
interdict.
Balance of convenience
[26] I agree with the Lord Ordinary that since it is plain that the
defenders have no intention of removing the pursuer brevi manu, there is no need for the court to grant the interdict
sought. The submission that, in
exercising her discretion on this question, the Lord Ordinary erred in law is absurd.
Specification
[27] I also agree with the Lord Ordinary that the
crave for interdict is lacking in specification; but that point is
merely an aspect of the fundamental irrelevancy of the action.
Disposal
[28] I propose that we should refuse the reclaiming motion.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Macfadyen
Lord Johnston
|
[2006] CSIH 16
A730/04
OPINION OF LORD MACFADYEN
in
RECLAIMING MOTION
by
ROBERT BELL
Pursuer and Reclaimer;
against
(First) INKERSALL
INVESTMENTS LIMITED; (Second) PROSPER PROPERTIES LIMITED; and (Third) MICHAEL
WOODCOCK
Defenders and Respondents:
_______
|
For pursuer and reclaimer: Nicoll; Drummond Miller, WS
For defenders and respondents:
Joughin; Digby
Brown
15 March 2006
[29] I agree that, for the reasons given by your Lordship in the
chair, the reclaiming motion should be refused.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Macfadyen
Lord Johnston
|
[2006] CSIH 16
A730/04
OPINION OF LORD JOHNSTON
in
RECLAIMING MOTION
by
ROBERT BELL
Pursuer and Reclaimer;
against
(First) INKERSALL INVESTMENTS
LIMITED; (Second) PROSPER PROPERTIES LIMITED; and (Third) MICHAEL WOODCOCK
Defenders and Respondents:
_______
|
For pursuer and reclaimer: Nicoll; Drummond Miller, WS
For defenders and respondents:
Joughin; Digby
Brown
15 March 2006
[30] I agree.
