Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Harvey v MacTaggart & Mickel Ltd [1999] ScotCS 286 (2 December 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/286.html
Cite as: [1999] ScotCS 286
[New search] [Help]
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord McCluskey Lord Caplan Lord Osborne |
0/155/17/98
OPINION OF LORD McCLUSKEY
in
SPECIAL CASE STATED BY THE SCOTTISH LAND COURT FOR THE COURT OF SESSION AT THE REQUEST OF THE RESPONDENTS
in the cause
MRS. MARGARET DUNLOP HARVEY Applicant;
against
MACTAGGART & MICKEL LIMITED Respondents:
_______ |
Act: Sir Crispin Agnew, Q.C.; Morton Fraser
Alt: Connal, Solicitor; McGrigor Donald
2 December 1999
This is a Special Case stated by the Scottish Land Court at the request of the Respondents in terms of the Scottish Land Court Act 1993, section 1(7), and the Rules of the Scottish Land Court, 1992, Rules 88-94. The background to the Case is set forth in the Preamble to the Case. As may be seen there, a principal issue was whether or not the Scottish Land Court had jurisdiction to determine if the "arrangements" described in the Findings in Fact, being arrangements between Johnston Wilson, the father of the Applicant, and the Respondents, amounted to an agricultural tenancy. That became an issue because the Applicant presented to the Scottish Land Court an application under section 11(5) of the Agriculture Holdings (Scotland) Act 1991, for an order declaring her to be tenant under an alleged lease following the death of the deceased "tenant", her father, on 23 December 1996. She thus sought to be received as tenant of the holding at Hole Farm, Lennoxtown, under what was averred to be a lease bequeathed to her by her late father. The Respondents opposed that application and moved the Scottish Land Court to sist the application to await the determination in a Sheriff Court action - raised on 7 August 1997 - of the same principal issue. The argument in favour of the sisting of the Land Court proceedings was that the main question raised by the declarator was not one which the Scottish Land Court had any jurisdiction to determine; only the ordinary courts, it was argued, could entertain and answer such a question. The motion to sist was refused upon the ground that the Scottish Land Court had jurisdiction to inquire into this matter, and to go on and hold that the Court had jurisdiction to determine it and all incidental matters, if the facts established in such inquiry showed that the said "arrangements" and the whole circumstances inferred a true lease between the said Johnston Wilson and the Respondents. In the Note appended to the interlocutor of 15 October 1997 refusing the motion to sist it was narrated that the submissions of both parties proceeded on the basis that, unless the jurisdiction of the Scottish Land Court in relation to matters of the kind in issue had been extended by the provisions of section 1(6) of the Scottish Land Court Act 1993 ("the 1993 Act"), the Scottish Land Court did not have a substantive jurisdiction to determine them but that it was in the discretion of the Scottish Land Court to deal with such issues as a preliminary jurisdictional point. Following a Proof, the Scottish Land Court issued an interlocutor dated 26 June 1998 granting the declarator sought. In the Note appended to that interlocutor the Court narrated the renewed and repeated submissions of the parties on the jurisdiction question; and, under the heading "Decision", stated,
"For the reasons set out in our note of 15 October 1997...we consider that we do have jurisdiction to determine all the issues which arose in the course of the hearing of this case. We did not find the additional submissions of counsel to be persuasive in changing our views to any extent. In particular, we do not accept the...submission that the effect of section 1(6) of the Scottish Land Court Act 1993 is simply to give a statutory power to explicate our jurisdiction."
From both Notes referred to and from the Special Case itself it is clear that the decision of the Scottish Land Court in relation to its jurisdiction rested upon its opinion that section 1(6) of the Scottish Land Court 1993 did not merely consolidate the law in relation to the jurisdiction of the Scottish Land Court but amended the law so as to extend that jurisdiction. That opinion was expressed in various ways; but it is clearly stated in these terms:
"Our primary task is to ascertain the meaning of the section by consideration of the words used in their context. This requires due regard, not only to their context as part of a consolidating act but also to their context as part of a scheme of legislation bearing upon agricultural holdings. In light of this we conclude that section 1(6) of the Scottish Land Court Act 1993 has indeed brought about a change in the jurisdiction of the [Scottish Land] Court".
In the Special Case it is noted that the first Error of Law which the Respondents say occurred lay in
"holding that the Scottish Land Court had jurisdiction to determine all the issues in the case, and in particular, holding that section 1(6) of the Scottish Land Court Act 1993 altered, as opposed to consolidated, the law, and that said Act provided the court with jurisdiction."
As the matter was presented to this court, it was clear that the respondents were maintaining that the opinion as to the character and effect of section 1(6) of the 1993 Act was wrong; and that if the Scottish Land Court had proceeded upon the correct view - namely that the 1993 Act was a pure consolidation measure - it would have had to reach the conclusion that it did not have jurisdiction to determine the underlying issue of fact, as to whether or not the arrangements and the subsequent history had effected a true lease between the deceased and the Respondents. Counsel for the Applicant accepted that, unless the 1993 Act had changed the law in the way and to the effect stated by the Scottish Land Court (as above), then that Court did not have jurisdiction to determine that underlying issue of fact. Thus the question that this court has to determine can be stated simply: did the 1993 Act alter the law as to the jurisdiction of the Scottish Land Court or consolidate it? We decided to hear both parties on the jurisdiction issue and to determine that issue before proceeding, if appropriate, to hear submissions on the other matters raised in the Special Case.
In relation to the matter of the competency of the appeal at this stage on the matter of jurisdiction. I agree with the reasoning of Lord Osborne and with the result he has arrived at; namely that the first Question of Law for the Applicant should be answered in the affirmative. I need add nothing on that point.
The submissions of the parties on the jurisdiction question are set forth in full in the two notes prepared by the Scottish Land Court. They were repeated and developed in the submissions made to us. It is not necessary to rehearse them again. We were also given full references to the relevant parts of the parliamentary proceedings to which reference is made later: it is not clear that the Scottish Land Court had the advantage of studying this material.
There can be no doubt that a consolidation Act - such as the Scottish Land Court 1993 Act - is not normally intended to alter the law in any material respect. As Lord Reid said in Beswick v Beswick [1968] AC 58 at p. 73,
"That Act (the Law of Property Act 1925) was a consolidation Act and it is the invariable practice of Parliament to require from those who have prepared a consolidation Bill an assurance that it will make no substantial change in the law and to have that checked by a committee. On this assurance the Bill is then passed into law, no amendment being permissible."
Against that background, and it is no different today, his Lordship said:
"In construing any Act of Parliament we are seeking the intention of Parliament and it is quite true that we must deduce that intention from the words of the Act. If the words are only capable of one meaning we must give them that meaning no matter how they got there. But if they are capable of having more than one meaning we are, in my view, well entitled to see how they got there."
Being satisfied that the words there under consideration were capable of having more than one meaning he then proceeded to examine the "antecedents" of the section containing them. In the same context, Lord Hodson said, at p.79,
"Contained, as it is, in a consolidation Act, an Act, moreover, dealing with real property, is it to be believed that by a side wind, as it were, Parliament has slipped in a provision which has revolutionised the law of contract? Although the presumption is against such an Act altering the law, the presumptions must yield to plain words to the contrary."
Lord Upjohn at p.104 said,
"There is a presumption that consolidation Acts are not intended to alter the law. In practice both Houses of Parliament send consolidation Bills to the joint committee of both houses on consolidation Bills who consider and report upon them to both Houses. The joint committee call the draftsmen of the Bill before them to give evidence and sometimes they have to resolve doubts whether a clause in the Bill is pure consolidation or not. For my part, I see no objection to considering those proceedings, not with a view to construing the Act, that is of course not permissible, but to see whether the weight of the presumption as to the effect of consolidation Acts is weakened by anything that took place in those proceedings."
In my opinion, these observations as to the assistance that might be gained by studying Parliamentary proceedings in relation to consolidation Bills lose none of their force in the light of the decision in Pepper v Hart [1993] AC 593. On the contrary, because it is now permissible, in certain circumstances, to look at the proceedings in Parliament for assistance in construing an enactment, the proceedings might shed light in relation to the intention of Parliament in relation to a consolidation Act as a whole, not just in relation to a particular provision contained in it. In that regard, I would refer to the speech of Lord Browne-Wilkinson in Pepper v Hart at p.635 where his Lordship quoted the dissenting speech of Lord Reid in Reg. v Warner[1969] 2 A.C. 256 at p.279,
"The rule is firmly established that we may not look at Hansard and in general I agree with it, for reasons which I gave last year in Beswick v Beswick. This is not a suitable case in which to reopen the matter but I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other."
When concluding his speech Lord Browne-Wilkinson said,
"Your Lordships are motivated by a desire to carry out the intentions of Parliament in enacting legislation and have no intentions or desire to question the processes by which such legislation was enacted or of criticising anything said by anyone in the course of enacting it. The purpose is to give effect to, not thwart, the intentions of Parliament."
It is now abundantly clear that
"reference may be made to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear." - per Lord Browne-Wilkinson in Pepper v Hart at p. 640.
If the court is invited to consider such material the party so inviting the court must first satisfy the court that the legislation is ambiguous, obscure or leads to an absurdity.
The provision that we have to consider and apply is that contained in section 1(6) of the Scottish Land Court Act 1993:
"Without prejudice to any jurisdiction conferred on it by any other enactment, the Land Court shall have jurisdiction to hear and determine all matters, whether of law or fact, which arise under the Crofters (Scotland) Act 1993, the Small Landowners (Scotland) Acts 1886 to 1931 or the Agriculture Holdings (Scotland) Act 1991 and, subject to subsection (7) below, the decision of the Land Court in any case shall be final".
The first curious feature that strikes one in reading this provision is that it used quite different phraseology to describe the jurisdiction of the Land Court in relation to matters arising under the Crofters (Scotland) Act 1993 from the words used in that Act itself (section 53), although both Acts were enacted on the same day and both were consolidation Acts. The second curious feature is that section 2(2) and the second schedule to the 1993 Act repealed the relevant jurisdiction provisions in the Small Landholders (Scotland) Act 1911 and in the Agricultural Holdings (Scotland) Act 1991 and replaced them with words which were different from the words relating to jurisdiction found in the repealed provisions. Thirdly, the Court of Session had made an important decision in relation to the jurisdiction of the Scottish Land Court in Garvie's Trustees v Still and Another 1972 S.L.T. 29: in that case the court made it clear that the jurisdiction of the Land Court was limited to adjudicating on the issues confided to them by the relevant statutory provision and that they were not entitled to adjudicate on "a fundamental issue which had not been so confided...".
The clear meaning of that decision, following the reasoning contained in the dicta of the consulted judges in Brodie v Ker, 1952 S.C. 216, was that, if a question came to be raised in proceedings before the Land Court as to whether or not a holding was an "agricultural holding", whether or not "the soi-disant 'landlord' and 'tenant' were entitled to these descriptions" or whether or not a particular contractual arrangement fell to be described as a "lease", then that question fell to be regarded as an antecedent question and not as one for the Land Court to determine; it had to be determined by the ordinary courts. That being so, it is in my opinion not at all clear what is embraced by the expression now found in section 1(6), "all matters, whether of law or fact, which arise under...the Agricultural Holdings (Scotland) Act 1991...." Counsel for the Applicant argued that the Scottish Land Court had been right to hold that the use of this expression had, in effect, changed the law as explained and determined in Garvie's Trustees so as to allow the Scottish Land Court to adjudicate upon antecedent questions of the kind which had arisen in the present litigation. Mr. Connell, who appeared for the Respondents, submitted that the words "which arise under" simply reaffirmed the existing law and left the Scottish Land Court with the limited and specific jurisdiction in relation to the 1991 Act that was already well understood and which found clear expression in Graham's Scottish Land Court - Practice and Procedure at pages 95 et seq. The next striking consideration, well illustrated in the submissions made for the Applicant to the Scottish Land Court and relied upon in the said notes by that Court, is that the one phrase is used in section 1(6) to describe the jurisdiction of the Scottish Land Court in relation to crofters, small landholders and agricultural holdings, even although prior to 1993 the jurisdictions exercised in practice in these three different areas appeared not to have been the same. It was successfully argued for the Applicant that the purpose of enacting section 1(6) could be seen to be to bring the three historically different jurisdictions into line with each other, even though that meant altering the law in a consolidating Act.
Whatever the wisdom of redefining the jurisdiction of the Scottish Land Court so as to make it uniform in relation to these three different fields, I am satisfied that it has not been done in section 1(6). That provision seems to me to be both ambiguous and obscure. Indeed it did not appear to me that counsel for the Applicant was able to argue that the words of the subsection were so clear that, as Lord Reid put it, "the words are only capable of one meaning". What he was able to submit was that over a long period of time, both in cases decided in the Land Court itself and in practice, similar words and phrases used in the statutory provisions governing jurisdiction in relation to crofting and small landholders had acquired a meaning which the draftsman of the 1993 Act must have had in mind and used deliberately when framing section 1(6). Thus, in accordance with the well-known canon of construction, Parliament must have used the similar words and phrases in section 1(6) with the intention that they should have the same meaning; the effect applicable to the instance case, was that, when the 1993 Act came into force, the Scottish Land Court acquired the wider jurisdiction mutatis mutandis that it already enjoyed in relation to crofting and small landholders. I accept that this canon of construction could well be applicable, and might even be decisive, if the court had to construe these words or this phrase in a new provision avowedly intended to create new law or to alter the pre-existing law. However, we are not in that situation; and it is necessary to consider other canons of construction applicable. Where, as here, the provision being considered is contained in a consolidation act, the words it contains are capable of bearing more than one meaning and the full results and application of the provision are somewhat obscure, then there is, in my opinion, every reason to take account of relevant Parliamentary material that sheds a clear light on the intention of Parliament. Such material is available here, and I turn to consider it. Before doing so, however, I observe that it was not suggested to us that Parliament had been persuaded to amend the law relating to the jurisdiction of the Scottish Land Court as the result of the publication of any research or inquiry or study of the relevant law, whether by any ad hoc committee or by the Scottish Law Commission. That is a circumstance of some relevance, in my opinion, because in such a field of law it would be surprising if Parliament chose to legislate to change the law without first having been informed of the report of some study - by a body such as the Scottish Law Commission - which had identified a "mischief" that Parliament thought it appropriate to remove.
The consolidation Bill which later became the Scottish Land Court Act 1993 was given a Second Reading in the House of Lords on 14 June 1993, on the same day as the much more substantial Crofters (Scotland) Bill. Both bills started their Parliamentary progress in the House of Lords. In moving the Second Reading, the Minister said,
"My Lords, I beg to move that this Bill be now read a second time. Again this is a consolidation measure. It consolidates certain enactments relating to the constitution and proceedings of the Scottish Land Court and repeals provisions of the Crofters Holdings (Scotland) Act 1886 relating to the Scottish Land Court, those being no longer of practical utility. The Bill is pure consolidation: it is intended to make no change in existing law. If your Lordships approve, it will be referred to the Joint Committee on Consolidation Bills which will consider it and make its report to the House in due course."
The use of the word "Again" was a reference to what the same Minister had said to the House a minute or two earlier when moving the second reading of the Crofters (Scotland) Bill; of that Bill, he said,
"The Bill is a consolidation measure which incorporates amendments to give effect to recommendations of the Scottish Law Commission. It consolidates certain enactments relating to crofting. Apart from amendments which are intended to remove certain minor anomalies in existing law, the Bill makes no change in the existing law. If your Lordships approve, the Bill will in the usual way be referred to the Joint Committee on Consolidation Bills which will consider it and make its report to the House in due course."
Both Bills were considered by the Joint Committee on Consolidation Bills on 16 June 1999, and the 5th Report of the Committee (HLP 98-I) contains a verbatim account of the consideration of each, and also contains a formal Minute for the purposes of reporting the Bills to both Houses of Parliament. The Minute shows, as does the verbatim report, that the Scottish Land Court Bill was a pure consolidation measure: the approved Report read,
"The Committee have also considered the Scottish Land Court Bill [HL] which was referred to them and have heard evidence on the Bill. They are of the opinion that the Bill is pure consolidation and represents the existing law."
Significantly, the "also" in that Minute is a reference to the quite different treatment of the Crofters (Scotland) Bill. In respect of that Bill the Joint Committee reported,
"The Chairman lays the following draft Report before the Committee:
'The Committee have considered the Crofters (Scotland) Bill [H.L.] which was referred to them and also the Report of the Scottish Law Commission on the Bill (Cm 2187). The Committee have heard evidence on the Bill and have not approved the first of the Commission's recommendations on the ground that the matter referred to is currently before the Scottish Land Court, and the Committee have amended the Bill accordingly. They have made one other amendment to improve the form of the Bill. Both amendments are set out in the annex to this report. They are of the opinion that, apart from those parts of the Bill which are the subject of recommendations by the Scottish Law Commission, the Bill is pure consolidation and represents the existing law. The Committee are satisfied that the Law Commission's recommendations (so far as approved) are necessary for the purpose of producing a satisfactory consolidation of the law and that the Bill gives effect to those recommendations."
That Minute reflects the proceedings of the Joint Committee as recorded in the verbatim report, which disclose the oral examination of the draftsman of that Bill (who was also the draftsman of the Scottish Land Court Bill). Against this background it is, in my opinion, as clear as it could be that Parliament, in enacting the Scottish Land Court Act, had no intention whatsoever of amending the law relating to the jurisdiction of the Scottish Land Court in relation to matters coming before them in consequence of a party's invoking section 11 of the Agricultural Holdings (Scotland) Act. This Parliamentary record discloses with the utmost clarity how section 1(6) of the 1993 Act "got there", to repeat Lord Reid's expression: for me it "certainly settle[s] the matter immediately".
I am therefore left in no doubt that the approach successfully urged upon the Scottish Land Court in the case by the Applicant was mistaken. Section 1(6) of the Scottish Land Court 1993 has effected no change in the jurisdiction of the Scottish Land Court.
In the light of the Opinions of this Court, the first Question of Law for the Applicant is answered in the affirmative. The first Question of Law for the Respondents in the Special Case (Whether the Scottish Land Court had jurisdiction to deal with all questions arising in the case) is answered in the negative. It follows that it would be inappropriate for this court at this stage to proceed to address the other Questions set forth in the Special Case.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord McCluskey Lord Caplan Lord Osborne |
0/155/17/98
OPINION OF LORD CAPLAN
in
SPECIAL CASE STATED BY THE SCOTTISH LAND COURT FOR THE COURT OF SESSION AT THE REQUEST OF THE RESPONDENTS
in the cause
MRS. MARGARET DUNLOP HARVEY Applicant;
against
MACTAGGART & MICKEL LIMITED Respondents:
_______ |
Act: Sir Crispin Agnew, Q.C.; Morton Fraser
Alt: Connal, Solicitor; McGrigor Donald
2 December 1999
I have had an opportunity to consider the Opinions of your Lordship in the chair and of Lord Osborne. I am in full agreement with the views expressed in each of these opinions.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord McCluskey Lord Caplan Lord Osborne |
0/155/17/98
OPINION OF LORD OSBORNE
in
SPECIAL CASE STATED BY THE SCOTTISH LAND COURT FOR THE COURT OF SESSION AT THE REQUEST OF THE RESPONDENTS
in the cause
MRS. MARGARET DUNLOP HARVEY Applicant;
against
MACTAGGART & MICKEL LIMITED Respondents:
_______ |
Act: Sir Crispin Agnew, Q.C.; Morton Fraser
Alt: Connal, Solicitor; McGrigor Donald
2 December 1999
By an application to the Scottish Land Court, dated 26 March 1997, the applicant applied to that court for an order finding and declaring that, as from 23 December 1996, being the date of the death of the late Johnston Wilson, she was the tenant in and of the holding at Hole Farm (otherwise Hole and Capieston), Lennoxtown, the lease of which was said to have been bequeathed to her by the said Johnston Wilson, conform to a testamentary writing, which was produced. This application was resisted by the respondents, who, since in or about 1960, had been the owners of the holding in question, in consequence of a sale of it to them by Mr. Johnston Wilson, the father of the applicant. Despite this sale, in terms of certain arrangements entered into between Mr. Johnston Wilson and the respondents, the former was to remain in possession of the holding, on certain terms and conditions, which involved the creation of a right in the respondents to take possession of the holding by instalments. These arrangements were embodied in two Minutes of Agreement between Mr. Johnston Wilson and the respondents, dated 23 and 29 December 1960 and 14 June and 30 July 1993. Mr. Johnston Wilson died on 23 December 1996.
The position of the applicant, as set forth in the Record of Pleadings of the applicant and the respondents before the Scottish Land Court, was that, by testamentary writing dated 8 October 1995, the late Johnston Wilson had bequeathed to her a lease of the holding governed by the Agricultural Holdings (Scotland) Act 1991, which did not exclude legatees or assignees. Accordingly, following the death of the late Johnston Wilson, the applicant had operated the procedure set forth in section 11 of the Agricultural Holdings (Scotland) Act 1991. In terms of section 11(4) of the Act of 1991, the respondents had given to the applicant a counter-notice intimating that they objected to receiving her as tenant under the lease. Following that, the applicant made the present application under section 11(5) of the Act of 1991. After the elaboration of the pleadings of the parties before the Scottish Land Court, it became apparent that a range of issues was in dispute between them. Among those issues were the question of whether the late Johnston Wilson had held a lease of the agricultural holding, within the meaning of the Act of 1991; whether the late Johnston Wilson was, in any event, entitled to bequeath his interest to the applicant; and whether there were good grounds for the respondents objecting to the applicant becoming the tenant of the subjects. In this connection I refer to the Record of Pleadings in the proceedings before the Scottish Land Court.
While there was no dispute between the parties that the Scottish Land Court had jurisdiction to determine the question of whether the respondents had any reasonable grounds for objecting to the applicant as tenant under any lease of the holding, the parties were in dispute as to whether the Scottish Land Court had jurisdiction to determine the other issues between them. That position is reflected in plea-in-law 1 for the respondents in those proceedings, a plea of no jurisdiction. In due course, the respondents enrolled a motion to sist the applicant's application to the Scottish Land Court, pending determination of the matters in dispute, other than the issue of the applicant's suitability as a tenant, in another court. That motion for a sist came before the Scottish Land Court on 1 September 1997. On 15 October 1997, the Scottish Land Court refused the respondents' motion to sist the application and made certain ancillary orders. In their Opinion, issued on the latter date, the Scottish Land Court stated that they were satisfied that all of the matters in issue in the case fell within their jurisdiction in terms of sections 1(6) of the Scottish Land Court Act 1993. Upon that basis and since it had not been suggested that there was any reason to sist the application if the court had jurisdiction, they concluded that there was no reason to sist the proceedings. Following upon that decision, the respondents did not lodge with the Principal Clerk to the Scottish Land Court a requisition to the effect that that court should state a Special Case on any question of law for the Opinion of a Division of the Court of Session, or in terms of Rule 88 of the Scottish Land Court Rules 1992.
Thereafter, the application came before the Scottish Land Court for proof on 31 March and 1 April 1998. On 26 June 1998, the Scottish Land Court, having considered the application, the documents and the evidence adduced, granted the crave of the application, in their interlocutor of that date. In the Opinion associated with that interlocutor, they stated that the matters in contention at the proof, as reflected in the respondents' four pleas-in-law were: the jurisdiction of the court; whether the arrangement was an agricultural tenancy; if so, whether Mr. Wilson was entitled to bequeath his interest in the farm; and, in that event, the landlords' objection to receiving the applicant as tenant. It is plain from the Opinion of the Scottish Land Court following the proof that submissions were made for the applicant and the respondents on the matter of the court's jurisdiction, as appears from pages 13 and 19 of the Opinion. Those submissions were the subject of decision by the court, as appears at page 24 of their Opinion, where it is stated:
"For the reasons set out in our note of 15 October 1997 (now reported 1998 S.L.T. (Land Ct.) 20), we consider that we do have jurisdiction to determine all the issues which arose in the course of the hearing of this case. We did not find the additional submissions of counsel to be persuasive in changing our views to any extent."
Following the intimation to the parties of the decision of 26 June 1998, the respondents requisitioned the stating of a Special Case by the Scottish Land Court, under Rule 88 of the Rules. In that Special Case, the respondents maintain that the Scottish Land Court's decision of 26 June 1998 was erroneous in point of law in five respects, which are set forth at pages 2 to 3 of the Special Case. The first of the respondents' criticisms of the decision was stated in this way:
"In holding that the Scottish Land Court had jurisdiction to determine all the issues in the case, and in particular holding that section 1(6) of the Scottish Land Court Act 1993 altered, as opposed to consolidated, the law, and that said Act provided the court with jurisdiction. Separatim in holding that the issues before the court required to be determined to 'explicate' jurisdiction and that they fell within the expression 'arising under the Act'. They did not."
In the Special Case, the respondents have stated six questions of law for the Opinion of this Court. Question 1 for the respondents is: whether the Scottish Land Court had jurisdiction to deal with all questions arising in the case? The applicant, in the Special Case has stated two questions of law for the Opinion of this Court. Question 1 for the applicant is whether this Stated Case is competent in respect of the first question of law for the landlords and respondents, as the issue was determined at debate and the landlords and respondents failed to request a Special Case within one month of the decision of 15 October 1997 in terms of Rules of the Scottish Land Court, Rule 88?
When the Special Case came before us, the solicitor for the respondents submitted that the court should answer question 1 for the respondents in the negative and should not answer the remaining questions for the respondents. In addition, he made certain subsidiary submissions with which, at this stage, I do not require to be concerned. He also submitted that question 1 for the applicant should be answered in the affirmative. Following upon the making of submissions by both parties on question 1 for the respondents and question 1 for the applicant, we considered that it was inappropriate at this stage to hear argument on the other questions raised in the Stated Case. It was agreed that, in the event of that being necessary, as a result of the manner in which question 1 for the respondents and question 1 for the applicant were answered, that should be undertaken at a later stage.
Against the foregoing background, I now turn to deal with question 1 of the questions of law stated for the applicant, which logically ought to be considered before question 1 for the respondents. In relation to this question, counsel for the applicant submitted that it was not competent for the respondents to ask their question 1 at this stage in the proceedings. Even if, on a correct view of the law, question 1 for the respondents should be answered in the negative, it was submitted that the respondents were not now entitled to the benefit of that answer in this process. In connection with his submission, counsel for the applicant drew attention to the terms of Rule 88 of the Scottish Land Court Rules 1992, which made provision for the requisitioning of a Special Case. It provided that:
"Any party to an application who intends to require that a special case shall be stated on any question, or questions, of law for the opinion of a Division of the Court of Session shall, within one month after the date of intimation to parties of the decision complained of, lodge with the Principal Clerk a requisition to that effect, and also a draft statement of the case specifying"
certain matters, including
"(d) the question, or questions, of law proposed to be submitted to the Court of
Session."
It had been held on several occasions that the non-timeous requisitioning of a Special Case was incompetent under this Rule. In that connection, counsel for the applicant referred to MacPherson v. MacPherson and Another 1946 S.L.C.R. 11 and The Secretary of State for Scotland v. Johnston S.L.C.R. App. 172. These cases showed that strict adherence to the timetable prescribed by the Rules for the requisitioning of a Special Case was demanded. It was submitted that it was clear that by refusing the respondents' motion for a sist of the application on 15 October 1997, the Land Court had determined a question of law. While the consideration of a motion for a sist was normally a matter requiring the exercise of the discretion of a court, in this instance, the only justification advanced for the sist was the contention by the respondents that the Scottish Land Court did not have jurisdiction to determine certain issues in the case, which therefore had to be submitted for determination by the ordinary courts, for which purpose the sist was required. In refusing the motion for the sist, the Scottish Land Court had rejected that submission. Plea-in-law 1 for the respondents, the plea of no jurisdiction had admittedly been reserved, but that was a correct course because ultimately the jurisdiction of the Scottish Land Court depended upon it being established that the arrangements between the late Johnston Wilson and the respondents were a lease, within the meaning of the Agricultural Holdings (Scotland) Act 1991. Accordingly it was a proper course to reserve that plea until a proof had been heard. Had the respondents wished to challenge the decision of the Scottish Land Court of 15 October 1997 in relation to that court's jurisdiction, they should have requisitioned the stating of a Special Case timeously following the intimation of that decision to them. That had not been done and therefore the matter could not now be raised. There was no equivalent in the practice and procedure of the Scottish Land Court of the provisions of law applicable in the Court of Session, whereby a reclaiming motion in relation to a particular interlocutor had the effect of opening up all previous interlocutors for consideration of the court dealing with the reclaiming motion. Furthermore, there was no dispensing power in the Rules of the Scottish Land Court, equivalent to that found in Chapter 2 of the Rules of the Court of Session. If, contrary to the primary submission of the applicant, the decision of the Scottish Land Court of 26 June 1998 could be viewed as a decision on the jurisdiction of that court, nevertheless this court should not entertain a challenge to that court's decision on its own jurisdiction, since that decision had first been promulgated on 15 October 1997 and had been acted upon by the applicant, in that a proof on all matters had been conducted upon the basis that the court did have jurisdiction to consider the issues which had been ventilated. There was a parallel between the situation in the present case and that in McCue v. Scottish Daily Record and Sunday Mail Limited 1998 S.C. 811. It was recognised in that case that, while the actings of parties, and of a reclaimer in particular, consequent upon a prior interlocutor did not have the effect of disabling the court from reviewing that interlocutor, such actings could lead the court to the conclusion that the prior interlocutor should not be interfered with. Thus, if the court considered that the issue of jurisdiction was a competent subject for the present Special Case, because that matter had been argued again at the time of the proof, nevertheless the court should not interfere with the determination of that matter made by the Scottish Land Court on 15 October 1997, since that determination had been acted upon. A proof had been conducted upon the basis that that decision was correct. There was nothing in section 1(7) of
The solicitor-advocate for the respondents moved us to answer question 1 for the applicant in the affirmative. He submitted that the issue of the jurisdiction of the Scottish Land Court to deal with all questions arising in the case was properly before this Court, question 1 for the respondents having properly been included in the present Special Case. The background to that was that both parties had made submissions to the Scottish Land Court at the proof concerning that matter, as appeared from pages 13 and 19 of the Opinion of that Court, dated 26 June 1998. Furthermore, the court had reconsidered the issue of their own jurisdiction to determine those issues, in the light of the submissions then made, as appeared from page 24 of that Opinion. The present Special Case had been timeously requisitioned and had competently put before this Court the question concerned. In any event, section 1(7) of the Scottish Land Court Act 1993 provided that:
"The Land Court may, if it thinks fit, and shall, on the request of any party, state a Special Case on any question of law arising in any proceedings pending before it under any enactment for the Opinion of the Inner House of the Court of Session, which is hereby authorised finally to determine that question."
That provision rendered the present Special Case competent in relation to the question in controversy. The principle relied upon by counsel for the applicant, derived from McCue v. Scottish Daily Record and Sunday Mail Limited, had no application in the context of the Rules of the Scottish Land Court. If this Court considered that the conduct of the respondents in not requisitioning a Special Case on the issue of jurisdiction, following the decision of 15 October 1997, was open to criticism and had resulted in the conducting of an unnecessary or incompetent proof before the Scottish Land Court, that view could be reflected in the making of some appropriate award of expenses against the respondents in relation to those parts of the proof that ought not to have been held before the Scottish Land Court, as opposed to some other court.
In the light of the foregoing submissions, I have reached the conclusion that question of law 1 for the applicant in the present Special Case must be answered in the affirmative. The present Special Case was requisitioned timeously by the respondents, in terms of Rule 88, following the intimation to parties of the decision of the Land Court of 26 June 1998. In these circumstances, it appears to me that the question is whether that decision, of which the respondents complain, comprised a decision to the effect that the Scottish Land Court had jurisdiction to deal with all of the questions arising in the case, the matter on which question of law 1 for the respondents is focused. In my opinion, it is quite clear that it did. At page 13 of the Opinion associated with the Land Court's interlocutor of 26 June 1998 there is a narrative of the submissions made for the applicant following the proof. In that narrative it is made clear that counsel for the applicant dealt with the issue of jurisdiction. The essence of that submission was that, by virtue of section 1(6) of the Scottish Land Court Act 1993, the Land Court now had an express statutory power to explicate its jurisdiction. The court could therefore decide whether or not the arrangement concerned was a lease falling under the Act of 1991. At common law, the right to explicate jurisdiction had had to be exercised with caution and with regard to the balance of convenience. The Land Court now had a duty to deal with the question. The substantive submissions of counsel for the applicant had been explored at the debate. At page 16 and following of the same Opinion, there is to be found a narrative of the submissions of the solicitor-advocate for the respondents. It records that he had formally restated the submission that the court did not have jurisdiction to deal with all of the matters concerned. He had maintained the submission that section 1(6) of the Act of 1993 had not changed the Land Court's jurisdiction, but he accepted that the Land Court had concluded its ruling on this. However, he contended that the question of whether the fundamental issue was a matter which arose under the Agricultural Holdings Act could now be viewed more clearly when the submissions bearing on it had been fully explored. Jurisdiction could now be seen to turn on the fundamental question of whether there was a tenancy. This could not be said to arise under the Act, because the question of whether this was a lease had to be addressed without regard to the Act. He went on to say that, on the pleadings, as adjusted, and the evidence, it could be seen that the real dispute was not within the scope of section 1(6).
Following these submissions, it is evident at page 24 of the Land Court's Opinion that they once again made a decision on the matter. In that passage they said:
"For the reasons set out in our note of 15 October 1997...we consider that we do have jurisdiction to determine all the issues which arose in the course of the hearing of this case. We did not find the additional submissions of counsel to be persuasive in changing our views to any extent."
The Land Court then went on to elaborate their reasons for adhering to that view.
Having regard to the contents of the Land Court's decision of 26 June 1998, which I have described, it appears to me clear that a decision on the issue of the Land Court's jurisdiction to deal with all the questions arising in the case was part of their decision of 26 June 1998. Against that decision, in all its parts, including that part, the present Special Case has been timeously requisitioned.
Counsel for the applicant relied upon the principle, to which reference has already been made, derived from McCue v. The Scottish Daily Record and Sunday Mail Limited. I do not consider that that principle can have any application in the context of these proceedings. As has been observed in the course of argument, there is no counterpart in the procedural provisions relating to the Scottish Land Court of the rule applicable in the Court of Session, whereby a reclaiming motion against a particular interlocutor has the effect of opening up all prior interlocutors for review. Rule 88 of the Scottish Land Court Rules and the cases decided under its predecessors show that it is necessary to adhere to the strict timetable contained in the Rule, if a question of law arising from a decision of the Scottish Land Court is to be brought before a Division of the Court of Session for its decision. Accordingly, decisions of the Scottish Land Court once made and not made the subject of a timeous requisition for a Special Case acquire a finality which no interlocutor in the Court of Session possesses until the final determination of a case in that court.
One may readily acknowledge the force of the point made by counsel for the applicant, to the effect that there may be inequity involved in the present case in respect that the applicant has had the trouble and expense of conducting a proof, which, in the end, in part, may come to be seen as incompetent. However, it appears to me that, if it emerges, that problem may be solved by the making of an appropriate award of expenses, in due course. In my view, this Court could not deny the opportunity to the respondents of ventilating the issue raised in their question of law 1 before this Court, in the light of the fact that this Special Case has been timeously requisitioned and in the face of the provisions of section 1(7) of the Scottish Land Court Act 1993.
At one point during the course of his argument, the solicitor-advocate for the respondents appeared to contend that section 1(7), on any view, rendered competent the raising of question of law 1 for the respondents before this Court. Section 1(7) of the Act of 1993 provides for the stating by the Land Court of a Special Case on any question of law arising in any proceedings pending before it under any enactment, for the Opinion of the Inner House of this Court. While that provision is unqualified as regards time, I am clearly of the opinion that the rights which it confers on any party to such proceedings to requisition a Special Case can be exercised only by the observance of the provisions of Rules 88 to 94 of the Scottish Land Court Rules 1992.
Turning to the issue raised in question of law 1 for the respondents in the Special Case, I have had the opportunity of reading the Opinion of your Lordship in the Chair. I am in complete agreement with it. I agree that that question of law should be answered in the manner proposed in it. On that aspect of the case I have nothing to add.