Scottish Court of Session Decisions

The rules of the Scottish Land Court provide:—Rule 90—“Any party whose interests are directly affected by a final order pronounced in an application may move the Court on one or more of the grounds enumerated in rule 95 to order that the application shall be re-heard, in whole or in part, upon such terms and conditions or otherwise as the Court shall think right.”

Rule 95—“A motion for re-hearing may be made upon one or more of the following grounds—… (3) That the party moving was prepared to adduce pertinent and important

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evidence of the tenor set forth in his statement ( a) which was unknown to, and could not reasonably have been discovered by, him before the hearing of the application, ( b) or which because of want of means to prepare his case, or of his absence from Scotland, or other excusable cause, he had been unable to adduce at the proper time. … (5) Any other ground essential to the justice of the case.”

Rule 98—“When the Court are satisfied that if an order or orders complained of are allowed to stand, a substantial wrong or miscarriage of justice which cannot by any other process be so conveniently remedied or set right is likely to be thereby occasioned, they may order a re-hearing of the application, before answer or otherwise, in whole or in part, in such manner and on such terms and conditions as they shall think just.”

John M'Coll, 14 West Laroch, Ballachulish, appellant, presented an application to the Scottish Land Court craving an order to find and declare that he was a landholder or a statutory small tenant of certain subjects of which F.C. Beresford and others, trustees of Sir George de la Poer Beresford respondents, were proprietors, and to fix a fair or alternatively an equitable rent for his holding.

By joint minutes the parties agreed that certain evidence given before the Crofters Commission in the cases of certain other holders of land on the same estate, so far as relevant, should be incorporated as evidence in the present case.

The procedure in the case was—On 11th June 1917 a single member of the Land Court having heard the cause found that the subjects occupied by the appellant were not a holding within the meaning of the Small Landholders (Scotland) Acts 1886 to 1911, either under the Act of 1886 or under the Act of 1911. The appellant appealed to the full Land Court, which on 6th December 1918 refused the appeal. On 27th December 1918 the appellant presented a requisition for a Special Case and lodged a draft case. The respondents lodged proposed alterations thereupon. On 25th January 1919 the appellant moved for a re-hearing on the ground that he desired to lead further evidence which had not hitherto been brought before the Court. The respondents opposed the motion for a re-hearing as incompetent in respect that a requisition for a Special Case had been taken upon the question upon which it was proposed to submit fresh evidence. The appellant refused to withdraw his requisition. The Land Court refused the motion for a re-hearing on the ground that it was incompetent for them to deal with it so long as the requisition was not withdrawn and the appeal to the Court of Session stood, and on 1st March 1919 pronounced an order refusing the motion.

Thereafter a Special Case was adjusted by the Land Court. The Special Case after narrating, inter alia, the procedure and orders above referred to set forth—“The [appellant] further contends that the Land Court was wrong in refusing to grant the re-hearing applied for as incompetent, or to allow him to lead further evidence in respect that under the statutory rules regulating procedure in the Land Court the requisition for a Stated Case did not remove the process from the Land Court, and did not stay procedure in the application unless it had been so ordered.… The respondents contend … that the Land Court was right in refusing the application for a re-hearing as incompetent.”

The questions of law included—“(2) Standing the requisition for a Stated Case was the Land Court right in refusing the appellant's application for a re-hearing as incompetent?”

The note of the Land Court appended to the Order of 6th December 1918 contained the following:—“On a careful consideration of the evidence adduced we are of opinion that it is not proved that the [appellant] held the subjects on a yearly tenancy. From 1883 to 1893 the rents were paid direct to Dr Campbell and were entered in rent books, one of which belonging to the [appellant] is produced. It covers the period from 1876 to 1893, and it appears from it that the practice of entering the rents in passbooks prevailed in the time of Dr Campbell's predecessors. But the period covered by Dr Campbell's agency is the important one as it was both prior and subsequent to 1886. The rent-books show that the rents were paid every six weeks. It was proved that in the great majority of cases where removals had taken place during Dr Campbell's period of occupancy the tenants had removed not at the terms of Whitsunday or Martinmas but at various periods throughout the year corresponding to the six weekly terms at which the rents were payable. There is no substantive evidence to the contrary, and it seems to us that the import of the evidence accordingly is that these houses, including that of the [appellant], were not let upon a yearly tenancy but that the tenants could be, and in fact were, removed for non-payment of rent and for other causes between terms.”

The note of the Land Court appended to the Order of 1st March 1919 was—“In this case the Land Court dismissed the application on various grounds of fact. The [appellant] then lodged a requisition for a Special Case to the Court of Session, and subsequently the respondents lodged proposed alterations or observations on the draft case. All that remained for the Land Court to do at that stage was to adjust the case for the Court of Session.

In that state of matters, the judgment of the Land Court having disposed of the appeal by the [appellant] to them, the effect of the requisition was to withdraw from the Land Court the power to deal with the case until it had been disposed of by the Court of Session. Thereafter the [appellant] lodged a motion for re-hearing in which he stated that certain facts had since come to his knowledge which were not put before the Court, and he desired a re-hearing on these facts. It is clear that the question which he now desires to raise is involved in, if it is not exactly one of the questions

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which the Court of Session will have to decide.

In these circumstances it appears to us that the [appellant] must withdraw the requisition for a Special Case before we can consider the question raised in his motion for re-hearing, because it is impossible according to ordinary procedure that two Courts should be considering the same point at the same time and perhaps come to contradictory judgments.

Accordingly, standing the requisition for a Special Case, we do not think it competent to grant the motion for a re-hearing. The Land Court having disposed of the case by a final judgment they are functus, and there is nothing before us to which, in view of the appeal to the Court of Session on that judgment, any further proceedings in this Court can apply. It is of course for the [appellant] to consider what his future procedure may be if he desires proof of new facts. It is for him to judge what steps he should take with regard to that.”

Argued for the appellant—The application for a re-hearing was competent and should have been granted. The appellant desired to lead evidence to prove that the instances founded upon by the Land Court against him were not cases of crofts at all, but with two exceptions were cottages and garden ground; in the other two cases crofts were involved, but they had ruinous cottages and the removals had been by agreement of parties, the landlord giving the crofters in exchange for those crofts others with usable houses. The evidence before the Crofters Commission on that matter was irrelevant, but until it was founded on in judgment by the Land Court the appellant could not know that it would be used against him. The joint minute incorporated the evidence only so far as relevant. In those circumstances the application was within the terms of the Rules of the Scottish Land Court, Rule 95 (3) and (5) and Rule 98. The Land Court bad a discretion to grant or refuse a re-hearing but they had refused to exercise it. Neither the motion for a re-hearing nor the requisition for the Special Case stayed proceedings—Rules 99 and 106—but the Land Court could, pending the re-hearing, have sisted the Special Case. In any event the Land Court had stated all the facts as to the application for the re-hearing in the Special Case. If they were functus and had no control over the case after the requisition, such a statement was not competent—Rules 90 to 98 were referred to.

Argued for the respondents—The Land Court was right. The requisition for a Special Case proceeded on the assumption that the Land Court had finally disposed of the matter. Once proceedings had been initiated by the requisition they must go on. The appellant was really approbating and reprobating, for under rule 102 he was bound to lodge a statement of facts for the Special Case. It must be assumed that such a statement was correct; the appellant now repudiated that statement of facts.