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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bell v. Inkersall Investments Ltd & Ors [2005] ScotCS CSOH_50 (12 April 2005)
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Cite as: [2005] CSOH 50, [2005] ScotCS CSOH_50
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Bell v. Inkersall Investments Ltd & Ors [2005] ScotCS CSOH_50 (12 April 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 50 |
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A730/04
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OPINION OF LADY PATON in the cause ROBERT BELL Pursuer; against (First) INKERSALL INVESTMENTS LTD (Second) PROSPER PROPERTIES LTD and (Third) MICHAEL WOODCOCK Defenders: ________________ |
Pursuer: S.D.D. Nicoll, Advocate; Bennett & Robertson LLP
Defenders: Joughin, Advocate; Digby Brown SSC
12 April 2005
Dispute over agricultural land
[1] The defenders are two limited companies ("Inkersall" and "Prosper") and an individual named Michael Woodcock. Mr Woodcock is a director of each company. He lives in Nottinghamshire. [2] The defenders own agricultural land in Dumfriesshire, known as the Rigg Estate and Nethercairn Farm. One particular area (plot 27A) is owned by Mr Woodcock as an individual. The remaining areas are owned by either Inkersall or Prosper. [3] Since about October 2000 the pursuer has occupied certain areas of land in the Rigg Estate and Nethercairn Farm. The defenders maintain that he did so in terms of written grazing lets granted by them for periods of less than a year, giving no security of tenure. In terms of the grazing lets, the pursuer was obliged to remove his animals from the land at the end of the period of let. [4] In April 2002, Inkersall granted the pursuer a short assured tenancy of Rigg Farmhouse. The pursuer occupied the farmhouse. [5] The pursuer acted as agent for the defenders in certain matters, for example assisting in the leasing out of cottages and houses to other tenants. [6] Relations between the parties deteriorated. The pursuer was served with a notice terminating his short assured tenancy of Rigg Farmhouse as at 31 March 2005. Further, the defenders sought to terminate the grazing lets as at October and December 2004. [7] However the pursuer maintained that he had a lease of the whole Rigg Estate, with security of tenure in terms of the Agricultural Holdings (Scotland) Act 1991. He claimed that he and Mr Woodcock came to a verbal agreement, and that occupation and payment of rent followed upon that agreement: cf. Morrison-Low v Paterson, 1985 S.L.T. 255. He asserted that he never in fact removed his animals from the land, and that his occupation was attributable to the lease of the whole estate, not to the grazing lets. [8] The defenders raised summary cause actions in Dumfries Sheriff Court, seeking removal of the pursuer from certain areas of land, and ejection of the pursuer from other areas. The pursuer lodged defences, averring that the grazing lets did not "reflect the whole extent of the parties' agreement in relation to the tenancy".
Interim interdict against interference with peaceful possession
[9] The pursuer then raised the present action in the Court of Session, seeking interdict against the defenders from disturbing or interfering with his peaceful possession of the lands known as and forming the Rigg Estate. The summons contains the following averments:"2. The pursuer is the tenant and the defenders are the landlords of agricultural land and buildings at the Rigg Estate, Kirkconnel, Sanquhar, Dumfriesshire. The first defenders and second defenders are taken together the heritable proprietors of the Rigg Estate, and the third named defender is the principal and lowest common denominator of both. All commercial dealings in relation to the two corporate entities are carried on by him and all correspondence and instructions on their account emanate from him.
3. The occupation of the Rigg Estate and the basis of the parties' relationship of landlord and tenant is currently the subject of dispute. The pursuer has been served with four actions raised by way of summary cause summons in Dumfries Sheriff Court No. SD2285/04, SD286/04, SD287/04 and SD288/04 which are produced. Appearance has been made and a defence intimated on the basis that the pursuer as tenant of the land and buildings is tenant of the Rigg Estate as an agricultural holding with security of tenure under the Agricultural Holdings (Scotland) Acts. The landlords rely on the terms of grazing leases said to regulate the parties' relationship.
4. 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 has 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.
5. Despite the continuing proceedings in Dumfries Sheriff Court the pursuer has received intimation that the defenders will or have given instructions to others on their behalf to have the pursuer's locks and chains broken, replaced with locks and chains of the defenders, and his stock and belongings removed. The pursuer is reasonably apprehensive that the defenders intend to effect a removal of the pursuer brevi manu without due process of law ..."
"... 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 ...".
Motion for recall of interim interdict
[12] On 19 January 2005, the defenders sought recall of the interim interdict. By that date, they had lodged defences and productions. Submissions were presented on behalf of both parties. Having considered the averments, the productions referred to, and the submissions, I granted the defenders' motion for recall. [13] Subsequently, the pursuer reclaimed. Accordingly counsel's submissions and the court's decision are set out below.Submissions on behalf of the defenders
[14] Counsel for the defenders submitted that the interim interdict should be recalled for four reasons. First, no prima facie case had been made out in the pleadings such as to entitle the pursuer to interim interdict. Secondly, the terms of the interim interdict were not sufficiently clear or specific. In particular, what was meant by "the Rigg Estate" and "the pursuer's peaceful possession". Thirdly, interim interdict was unnecessary in the circumstances. The defenders had resorted to due process of law in order to recover possession of those areas of land occupied by the pursuer. Fourthly, the balance of convenience favoured recall of the interim interdict.No prima facie case
[15] The pursuer claimed a verbal agreement with actings following thereon, resulting in a lease with security of tenure. He relied upon Morrison-Low v Paterson, cit. sup. Yet there were no averments about areas of land occupied, rent paid, and dates on which rent had been paid. The pursuer's averments were insufficient to demonstrate any verbal lease with security of tenure. The defenders' contention was that such parts of the land as were occupied by the pursuer were occupied in terms of written grazing lets. For example, as was averred in summary cause summons number 7/15A of process, Inkersall had leased 690.3 acres to the pursuer for grazing, namely the southern section of field 12, fields 1 to 7, 11, 14 to 21, 23, 28, 33, 35, 36, 37, 38 and 39. The period of the grazing let was 1 November 2003 to 25 October 2004. Standing the written grazing let, the pursuer did not aver enough to make out a prima facie case explaining why his occupation of those areas was attributable to something other than the written let. He did not aver why any rent paid should not be attributed to the grazing let. A similar written grazing let had been granted to the pursuer by Prosper in respect of other areas, all as set out in summary cause summons number 7/15D of process. Furthermore, the pursuer never had any right to occupy fields 8, 9, 10, 22, 24, 25, 26, 27, 40, 42 and 49. Against that background, the pursuer's averments in his summons for interdict did not amount to a prima facie case. Nor did the defences lodged in the sheriff court actions give sufficient detail to make out a prima facie case.Terms of interim interdict not sufficiently clear and specific
[16] Counsel for the defenders submitted that any interdict had to be clear and specific. Reference was made to Murdoch v Murdoch, 1973 S.L.T. (Notes) 13. In the present case, it was not clear what was meant by "the Rigg Estate". Plan number 7/1 of process demonstrated that there was no finite bounded area identifiable as "the Rigg Estate". Some of the areas in dispute fell within the Nethercairn Farm area. Moreover the pursuer, in his capacity as agent for the defenders, had assisted in the leasing out of various houses and cottages. He clearly had no right to occupy those buildings. Any interim interdict should exclude those buildings, and should also exclude areas of land which the pursuer never had any right to occupy. [17] Furthermore the vagueness inherent in the phrase "peaceful possession" was illustrated by the sorts of actions in which the pursuer now seemed to think he was entitled to indulge (described in paragraphs [20] to [26] below).Interim interdict unnecessary
[18] The defenders had resorted to due process of law in the sheriff court. They were not seeking to eject the pursuer without proper legal process. The relevant writs and defences were numbers 7/15A et seq. and 7/16A et seq. In the circumstances, interim interdict was unnecessary. In Article 5 of Condescendence, the pursuer referred to receiving"intimation that the defenders will or have given instructions to others on their behalf to have the pursuer's locks and chains broken, replaced with locks and chains of the defenders, and his stock and belongings removed".
However all that had happened was a visit to the estate on 4 November 2004 by a representative of the defenders named Barry Lee, in order to inspect the land for inter alia insurance purposes. He had told the pursuer that he intended to lock up unoccupied buildings. He had taken no steps in relation to land which was the subject of the grazing lets. The buildings which he intended to lock up were either empty, or used as outhouses.
The balance of convenience favoured recall of the interim interdict
[19] Counsel for the defenders advised the court that the granting of the interim interdict had caused significant difficulties in the day-to-day management of the land. [20] Houses and cottages on the disputed areas of land were leased to other people. The pursuer, in his capacity as agent for the defenders, had been instrumental in arranging those leases. The properties leased to others included Nethercairn Farmhouse, Nethercairn Cottage, Rigg Villa, Rigg Cottage, Bothy Cottage, Shepherd's Cottage, Crockroy Cottage, and Cheesemaker's Cottage. Following upon the granting of interim interdict on 5 November 2004, the pursuer told tenants that he had the right to use the ground immediately surrounding their properties. He put sheep to graze on ground at Nethercairn Farmhouse. The tenants had complained, particularly in respect of a decaying sheep left lying at the back. Further, the pursuer put sheep to graze on ground at Nethercairn Cottage. He told tenants of Rigg Villa that they could not occupy their own garden ground. He drove his vehicle over a flagged area close to the villa. He further advised the tenants of Rigg Villa that he intended to invoice them for grazing their horses in the fields. Further the pursuer placed locks on outbuildings at Bothy Cottage and Shepherd's Cottage. He drove his quad bike over the yards at Bothy Cottage, Shepherd's Cottage, and Cheesemaker's Cottage. He occupied a field which had in fact been rented out to the tenants of Rigg Cottage. He put sheep to graze on ground at Crockroy Cottage, and continually left the gate open for his tractor and other vehicles to pass. [21] The interim interdict caused further difficulties as the defenders had entered into agreements relating to the land. In terms of some agreements, payments and subsidies were expected, provided that the defenders adhered to the terms and conditions of the agreements. However a question arose whether the interim interdict impeded compliance with those terms and conditions. [22] In particular number 7/18 of process was an agreement dated 6 September 2004 between Prosper and Scottish Natural Heritage relating to the management of Polhote and Polneul Burns as a site of special scientific interest (SSSI). Following upon the granting of interim interdict, the pursuer put sheep on that area, and the SSSI agreement was in danger of being breached. Numbers 7/19, 20 and 21 of process were agreements with a private company relating to test-boring for coal in certain of the disputed areas. Mining rights belonged to the landlords, not to an agricultural tenant, but there was concern that the pursuer's activities following upon the grant of interim interdict would cause difficulties in the implementation of the agreement. For example, representatives visiting the land had been told that they should not be there. [23] Number 7/24 of process was a shooting lease dated 6 April 2003 granted by Inkersall in favour of Mr D.W. Harvey relating to game, excluding deer. Some of the disputed areas were involved, and it was not clear whether the pursuer's interpretation of "peaceful possession" would result in difficulty exercising shooting rights. Similarly number 7/25 of process was a shooting lease in respect of deer dated April 2000 granted by Inkersall in favour of Roger Buss, trading as D & G Consultants (UK). Again there was concern whether the pursuer's interpretation of "peaceful possession" would interfere with those shooting rights. [24] Number 7/26 of process was planning permission for the renovation of buildings known as The Rack, Rigg Estate. Work had begun, but as a result of the interim interdict, the work might have to stop. Number 7/27 of process was a conservation scheme relating to Rigg Farm entered into between the Scottish Executive Environment and Rural Affairs Department (SEERAD) and Inkersall in September 2003. Number 7/28 of process was a conservation scheme relating to Nethercairn Farm entered into between SEERAD and Prosper in July 2002. The conservation schemes were not compatible with grazing animals. Number 7/29 of process was a Woodland Grant Scheme entered into between the Forestry Commission and Inkersall in July 1999. The pursuer had put sheep to graze on areas affected by the scheme. The scheme was incompatible with grazing sheep. There was concern that trees would be damaged. [25] Number 7/30 was property owners' insurance relating to Rigg Farmhouse, Rigg Villa, Rigg Cottage, Crockroy Cottage, Rigg Farm, and Nethercairn Farmhouse and Steading. Conditions of cover included owners' inspections at least every 14 days, and removal of all waste combustibles and gas bottles from within or outside the buildings. The pursuer's actions had caused difficulties complying with those conditions. For example, the pursuer had put locks on a number of buildings, making inspection impossible. The pursuer had responded to persons appearing on the estate on behalf of the defenders by telling them that they should not be there. That was not the correct approach, for in terms of section 10 of the Agricultural Holdings (Scotland) Act 1991, a landlord was entitled to enter the land to view the state of the holding. [26] Numbers 7/31 to 7/37 were leases to other tenants of properties such as Nethercairn Farmhouse, Shepherd's Cottage, Nethercairn Cottage, and Crockroy Cottage. The pursuer had no rights to such houses and cottages, as they had been leased out to others. Yet the wording of the interim interdict seemed to suggest that he had. Numbers 7/38 to 7/42 related to a Whole Farm Review under the SEERAD scheme. Because of the pursuer's interpretation of "peaceful possession", the first stage of the review had not been carried out. Finally, following upon the granting of the interim interdict, the pursuer had taken up occupation of certain previously unoccupied buildings, using them for sheep or equipment. [27] Counsel concluded by submitting that the balance of convenience clearly favoured the defenders. All of the matters outlined above gave rise to potential loss and damage for the defenders. Currently the defenders were losing at least £56,000 in rent alone, as they were unable to accept rent from the pursuer. Moreover there was an issue relating to the European Union single farm payment. In order to qualify, a person had to be in occupation to some extent of land he was farming. People were willing to rent land in order to make a claim. [28] An additional consideration under the heading balance of convenience was the difficulty in quantifying any loss suffered by the defenders. In any event, it was doubtful whether payment could be obtained from the pursuer. When the pursuer first took occupation, he was an undischarged bankrupt. His last cheque dated 1 May 2004 for £47,945.69 had been returned marked "Refer to Drawer" (number 7/44 of process). The pursuer's cohabitee had made many payments, but the defenders could not pursue her in an attempt to recover damages for any loss and damage suffered by them. By contrast, the defenders were reasonably substantial concerns. If ultimately the pursuer were to be successful in his claims, the defenders would be able to pay any damages awarded. [29] The court was invited to recall the interim interdict.Submissions on behalf of the pursuer
[30] Mr Nicoll, Advocate, on behalf of the pursuer invited the court to refuse the motion for recall. The summons had been drafted as an emergency measure. When the defenders' representative Barry Lee visited the Rigg Estate on 4 November 2004, it seemed to the pursuer that the defenders would attempt to remove him from the land without due process of law. There had been a threat that the pursuer would be locked out of the buildings and his occupation of the farm. Defences and productions had only recently been lodged, and a lengthy consultation with the pursuer had then taken place. The court was therefore asked to bear in mind that the pleadings in the sheriff court and the Court of Session were at an early stage. In such a situation, the court should not be over-influenced by the limited extent to which matters were set forth in the pleadings. [31] Counsel advised that parties were in no doubt about what was meant by "the Rigg Estate". The heritable proprietor knew what he owned. The tenant knew that whatever the landlord owned, he (the tenant) had by virtue of the tenancy. For example, the heritable proprietor could lease to a would-be tenant by saying that he would grant him a tenancy of the Rigg Estate on payment of £86,000 per year. The current situation had been contrived by Mr Woodcock, the third defender. It had not been made easy for the pursuer to insist upon his legitimate rights. [32] Counsel submitted that a descriptive disposition or descriptive title could be as effective as a bounding description or bounding title. "The Rigg Estate" was a descriptive title. A lease of the Rigg Estate could be constituted on the basis of payment of rent of £86,000 in two instalments, £43,000 in May and £43,000 in November. Nethercairn Farm was part of the Rigg Estate. Mr Woodcock knew what was meant by the Rigg Estate. Mr Woodcock had bought that estate. During the acquisition, part of the estate was put in the name of Inkersall, part in the name of Prosper, and a third area (area 27A) in Mr Woodcock's own name. Following upon a verbal agreement between the pursuer and Mr Woodcock, the pursuer had taken occupation of the whole of the Rigg Estate, and had paid rent accordingly. [33] Counsel did not accept that officers of court might have difficulty enforcing the interim interdict. The recipient of any order served by a messenger-at-arms would know what was meant by the Rigg Estate. [34] The court was asked to note certain unusual circumstances. The pursuer's local agents had been approached by insurance investigators wishing to take a statement from the pursuer about a suspected insurance fraud alleged to have been effected by Mr Woodcock. In the light of that insurance investigation, the court should proceed with caution at this preliminary stage. A caveat should be attached to any ex parte assertions made by the defenders, especially the third defender. All might not be what it seemed. What was documented might, or might not, be a true reflection of the situation. Only after proof in the sheriff court could it be seen where the pursuer stood in relation to his assertion about a lease with security of tenure. [35] The pursuer's case was based upon Morrison-Low v Paterson. The grazing lets were merely part of the picture, and were not a true reflection of the totality of the pursuer's entitlement as agreed with the defenders (in particular, Mr Woodcock) and in respect of which substantial rent had been paid. It was a fact that landlords, anxious to obtain valuable rent for an agricultural holding yet not to give security of tenure, had in the past sought to present matters "on paper" as grazing lets, whereas in fact the nature of the farming business did not fall within the exemption in section 2 of the Agricultural Holdings (Scotland) Act 1991. In essence, that was the pursuer's contention. The fact that Mr Woodcock held the estate in two blocks in the names of Inkersall and Prosper did not prevent the constitution of a lease giving the pursuer security of tenure under the Agricultural Holdings (Scotland) Act 1991. [36] With reference to the challenge to the pursuer's prima facie case, counsel pointed out that at the stage of interim interdict, the pursuer was entitled to rely on his averments and on ex parte statements. On that basis, there was a serious issue to try, involving an extensive farming estate with a valuable annual rent (£86,000). Two banks and the Scottish Agricultural College had been involved in business planning for the farming business. There was a ten-year business plan, inconsistent with a short-term grazing let. Mr Woodcock had been a party to those arrangements. There was therefore a clear indication that Mr Woodcock was attempting to "have his cake and eat it". He had been obtaining substantial rent from the pursuer. He had availed himself of estate management services from the pursuer in relation to day-to-day improvements to the estate, yet at the same time he sought to deflect security of tenure. [37] Counsel then referred to Morrison-Low v Paterson, in particular to the dicta of Lord Keith at pages 266-268. The landlords in the present case asserted that the lets were merely grazing licences. But for that to be so, the licence had to be for a period of less than a year, and to be for grazing only, all in terms of section 2 of the 1991 Act. Counsel submitted that the facts of the pursuer's occupation did not meet those requirements. A ten-year business plan and other factors demonstrated Mr Woodcock's intention. Where grazing lets did not conform with statute, and where they did not match what was happening on the estate, then the approach set out in Lord Keith's speech applied. Evidence of actings led to an inference that a lease had been created: cf. dicta of Lord Keith at page 268. [38] The pursuer had an agreement with the landlords (for practical purposes, Mr Woodcock) for the whole of the Rigg Estate. By virtue of that agreement, he was given occupation of the whole Rigg Estate, and paid rent for the whole Rigg Estate. Rather than rent being paid in terms of the grazing lets, and occupation being limited to the areas designated in the grazing lets, occupation and payment of rent had taken place in terms of the pursuer's verbal agreement with Mr Woodcock in respect of the Rigg Estate as a whole. [39] That situation tied in with the fact that the defenders, who were based in Nottinghamshire, had no real presence at the Rigg Estate. The pursuer was in charge of the day-to-day administration. [40] In relation to rent, the pursuer received payments from the tenants of other buildings on the estate. The defenders received rent from the pursuer representing payment for the Rigg Estate as a whole. That explained why some of the tenants seemed to regard the pursuer as their landlord. It was the pursuer whom they approached in the event of requiring repairs. It was the pursuer to whom they paid their rent. [41] In relation to insurance, it would be necessary to explore the facts in a proof. There was evidence that the pursuer had paid for insurance of farm buildings from 2002 onwards in accordance with arrangements made with the insurers, and known to Mr Woodcock. The conditions about inspection at least every 14 days, and the removal of waste combustibles, appeared to have been undertaken on 7 December 2004 (i.e. after the granting of interim interdict on 5 November 2004). Reference was made to number 7/30 of process. If Mr Woodcock chose to enter into such conditions after the granting of interim interdict, then found the conditions difficult to fulfil, those were difficulties of his own making. Mr Woodcock well knew that the pursuer was taking out insurance. [42] Counsel submitted that such matters were highly significant when assessing the balance of convenience. The fact was that the pursuer had a physical presence on the estate, whereas the defenders were situated elsewhere. The pursuer managed the estate from day to day, and made improvements to the estate. He had longstanding dealings with bodies such as Scottish Natural Heritage, the Salmon Fisheries Authority, the Scottish Executive Environment and Rural Affairs Department (SEERAD), and others. The interface with government agencies was through the tenant. Counsel submitted that the balance of convenience favoured retaining that situation. [43] At one point during the debate, counsel for the pursuer lodged two SEERAD plans, number 6/5 of process depicting areas comprising Nethercairn Farm (343.3 hectares), and number 6/6 of process depicting areas comprising the Rigg Estate (484.64 hectares). He stated that he had in mind adjusting the pleadings to address any issues not self-evidently clear: for example to address the question what comprised "the Rigg Estate". [44] Counsel for the defenders did not oppose the lodging of the plans, but intimated that time would be required to answer any amendment. [45] Counsel for the pursuer responded by moving the court to continue the hearing to another day, to enable the parties to make reference to those plans, and to resolve any debate about the extent of the Rigg Estate. [46] Counsel for the defenders opposed the pursuer's motion for a continuation. It was pointed out that the defenders had enrolled a motion for recall of an interim interdict. There were arguments about balance of convenience. The defenders were entitled to a decision. If the pursuer was minded to amend, he could do so in due course. [47] Having considered the submissions, I allowed the plans to be lodged as numbers 6/5 and 6/6 of process, but I refused to grant a continuation. [48] Counsel for the pursuer then proceeded with his submissions. He contended that the existing wording of the interim interdict told the defenders all that they required to know. So far as balance of convenience was concerned, counsel submitted that the primary if not the determining factor must be to give effect to the policy in legislation such as the Agricultural Holdings (Scotland) Act 1991. The 1991 Act was intended to provide farmers with security of tenure. Farming was a continuous business which did not readily suffer interruption. The timing of the defenders' motion was significant. The lambing season was about to begin, and as a result, the pursuer's farming operations were particularly vulnerable to disruption. [49] The defenders had referred to various practical inconveniences said to have arisen from the granting of the interim interdict. In that context, three considerations should be borne in mind. First, it was disputed that there had been any interference by the pursuer with the defenders and their representatives. Secondly, the allegations now being made by the defenders involved innovating on the status quo. The defenders were taking certain actions after the granting of the interim interdict, and then complaining of related difficulties and inconveniences said to arise from the interim interdict. Thirdly, the terms of the interim interdict were directed to restraining the defenders from acts which would constitute interference with the pursuer's peaceful possession - acts which were designed to eject him from the property, or to subject him to harassment when carrying out legitimate operations. Anything beyond such interference with the pursuer's continuing occupation of the property was not struck at by the interdict, and should not form part of the court's considerations. It could not be a proper basis for recall that the defenders were seeking to do something outwith the terms of the interdict, but felt restrained for some reason. [50] In relation to any potential loss or damage, counsel submitted that if the pursuer were to be locked out of buildings or field enclosures, as had been threatened, there could be harmful consequences, particularly when two thousand sheep were about to begin lambing. The pursuer had the use of all the fields and buildings in terms of his agreement with the landlord. The buildings were required for taking sheep indoors, for example when ewes were lambing. If those operations were interfered with, there would be significant losses. Similarly if brevi manu steps were taken against the pursuer, and he was forced to respond with due process of law, time would pass, and the pursuer would be in an impossible position in relation to management of his stock. [51] It had been suggested that the pursuer might be unable to meet any award of damages made against him. That suggestion was refuted. The pursuer had suffered a business failure. Following upon a bankruptcy in England, he had been approached by Mr Woodcock who suggested that he take over the day-to-day management of the land in Dumfriesshire. Mr Woodcock had thus been well aware of the pursuer's situation. In any event, after the business failure and his discharge from bankruptcy, the pursuer had come into substantial funds. He had invested in his farming business, which was now a substantial one with two thousand sheep. By contrast, the defenders had a practice of not paying third parties. Mr Woodcock as an individual owned area 27A, but the remaining areas were in the name of limited companies which, the pursuer's counsel contended, might be connected with avoidance of claims by third parties. In weighing up the balance, the court could have little confidence in the pursuer's being able to recover damages from the defenders. It was in the nature of corporate personalities with limited liability structure that assets might go elsewhere. [52] Counsel submitted that the court should seek to protect the status quo. The pursuer carried out the day-to-day management of the estate, and all improvements. Outside agencies dealt with the pursuer. The defenders were distant and remote from the land, with little involvement. The allegedly pressing practical matters which seemed to have arisen following the grant of interim interdict should not weigh heavily in the balance, especially as prior to the grant of interim interdict there had been no inspections or 14-day visitations; no procedure of locking and securing; and no removal of combustible materials. Those complaints were contrived, and amounted to an attempt to innovate on the status quo. [53] The court was invited to refuse the motion for recall.Reply on behalf of the defenders
[54] In relation to the balance of convenience, counsel for the defenders pointed out that the status quo was maintained by the sheriff court actions. The pursuer was not being evicted brevi manu from grazing lands or buildings. Matters were being supervised by the court. So far as lambing was concerned, the pursuer had the grazing land and the use of all the related buildings. The balance of convenience favoured the defenders. [55] Certain criticisms had been levelled at Mr Woodcock, but without specification. There had been a suggestion that he did not pay his bills, without any indication as to the identity of those allegedly not paid. The defenders owned substantial tracts of land. Anyone seeking damages from the defenders was likely to make a recovery. By contrast, the pursuer had been sequestrated. He had not explained the returned cheque marked refer to drawer. [56] While the pursuer had in the past been employed as an agent for the defenders in the day-to-day management of the land, he was not currently so employed. As agent, he had arranged tenancies and leases for shooting and stalking and for domestic properties. The landlord was always either Inkersall or Prosper, not the pursuer. The pursuer had been paid a commission for collecting rents. He had forwarded the rents, minus the commission, to the defenders. [57] The defenders were unaware of any improvements made by the pursuer. The allegation of an insurance fraud perpetrated by Mr Woodcock was unsubstantiated and should be ignored. The insurance arranged by the defenders had been effected on 30 June 2004, as demonstrated by number 7/43 of process, long before the interim interdict was granted. The insurance conditions were not therefore contrived following upon the grant of interim interdict. The insurance conditions had been one of the reasons for Barry Lee's visit on 4 November 2004. [58] It was not disputed that the pursuer had dealt with representatives of SEERAD and Scottish Natural Heritage. However he had done so on behalf of the defenders. All the agreements and documentation were in the name of Inkersall and Prosper, not in the name of the pursuer. [59] Counsel summarised the defenders' position. Payment of rent of £56,000 and occupation of the land were attributable to written grazing lets. The pursuer had not made sufficiently specific or relevant averments to demonstrate why occupation and rent should be attributed to some other agreement. The status quo was being preserved by the sheriff court actions until due process of law had taken place. The interim interdict made the running of the estate difficult, and should be recalled.Opinion
[60] Having heard the submissions, I recalled the interim interdict. I gave the following reasons: [61] I accepted the criticisms made of the pursuer's averments in Article 4 of Condescendence. They were skeletal, and required amplification, especially bearing in mind the additional information offered during the hearing by counsel for the pursuer. [62] However in my view there was just sufficient on record to make out a prima facie case, raising issues as to whether stock had been removed from the land, and whether occupation and rent were attributable to the grazing lets or to some other agreement such as was envisaged in Morrison-Low v Paterson, 1985 S.L.T. 255. [63] Nevertheless, two other important issues arose: whether the interdict was sufficiently precise and specific; and the balance of convenience. [64] I dealt firstly with balance of convenience. I was not satisfied that recall of the interim interdict would cause the pursuer any prejudice pending the resolution of the parties' dispute. The interim interdict had been obtained in circumstances of some urgency, when there was a perception that the defenders intended to evict the pursuer and his stock brevi manu. As was made clear in the course of the debate, eviction brevi manu was not going to occur. The defenders were proceeding to litigate in an orderly manner in the sheriff court. In those circumstances, it was my view that if the interim interdict were to be withdrawn, the pursuer could continue to perform all the estate management tasks concerning his farming business which he was carrying out before. [65] By contrast, I was persuaded that the interim interdict was having a detrimental effect on the overall running of the estate. For example, the pursuer's perception of the meaning of "peaceful possession" was having unfortunate results in relation to the various tenants occupying houses and cottages on the land; the carrying out of the coal exploration agreement and of other agreements with government bodies; insurance matters; shooting and stalking leases; work to be carried out on The Rack; and other similar matters. Ultimately I reached the view that the balance of convenience favoured recall of the interim interdict. [66] Quite separately and independently, I was of the view that the interim interdict was not sufficiently clear and precise. The reference to "the lands known as and forming the Rigg Estate" was not sufficiently specific. The interim interdict might ultimately have to be enforced by someone unfamiliar with the areas of land comprising "the Rigg Estate". Reference to plans such as numbers 7/1, 6/5 or 6/6 of process would not necessarily assist, as those plans were not referred to in the pleadings or the interlocutor granting interim interdict. It would have been an easy matter to incorporate a reference to a plan in the pleadings and the conclusion, as was done when the grazing lets were prepared. Furthermore, it seemed to me that the houses and cottages let out to others should be specifically excluded from the interim interdict. Finally, there was a possible source of confusion in that the pursuer appears to consider that Nethercairn Farm forms part of the Rigg Estate, whereas the defenders appear to consider that Nethercairn Farm is separate from the Rigg Estate. [67] I also took the view that the concept of "peaceful possession" was unsatisfactorily inspecific bearing in mind the problems arising as a result of what appeared to be the pursuer's perception of what he is entitled to do when enjoying peaceful possession: see paragraphs [20] to [26] above. The combination of the pursuer's physical presence on the estate, taken with the terms of the interim interdict, appear to have resulted in his acting as if he were in charge of the whole lands comprising the Rigg Estate and Nethercairn Farm, with the ability inter alia 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. [68] For all of those reasons, I recalled the interim interdict. [69] For completeness, I should add that I was not satisfied on the information before me that there was any need connected with management of the pursuer's stock to put animals to graze on areas of land other than those areas specified in the grazing lets, pending resolution of the dispute between the parties. Nor did I consider it necessary for the management of the pursuer's farming business to forbid tenants at Rigg Villa to occupy their own garden ground; or to drive a vehicle over the flagged area close to the villa; or to invoice the villa tenants for grazing their horses in the fields; or to drive a quad bike over the yards at Bothy Cottage, Shepherd's Cottage, and Cheesemaker's Cottage; or to place locks on outbuildings of those cottages. [70] Further I was not persuaded that recall of the interim interdict would cause the pursuer any difficulties in relation to his dealings with banks, Scottish Natural Heritage, the Salmon Fisheries Authority, SEERAD, and others. Obviously the pursuer's current status is in dispute - for example, whether or not he is the tenant of the whole lands with security of tenure, and whether or not he still acts as agent for the defenders. But those issues are likely to remain unresolved until decided upon by the courts, whether or not the interim interdict is recalled. [71] Finally, the defenders as owners and landlords (and their representatives) appear to me to be entitled to enter any part of the land for legitimate purposes, for example, to exercise mining or shooting rights, or to view the state of the holding, or to carry out renovation work, or to comply with insurance conditions, or to fulfil any obligations in terms of woodland or conservation schemes. As matters stand at present, the pursuer is not in my view entitled to prevent or obstruct such legitimate actings.