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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Nimmo Smith
Lord Kingarth
Lord Marnoch
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[2007] CSIH 24
XA18/06; XA13/06; XA14/06;
XA12/06; XA11/06 and XA16/06
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in the Appeal
under Section 11(1)
and (7) of the Tribunals and Inquiries Act 1992
by
WILLIAM ALLEN AND ANN
ALLEN AND OTHERS
Applicants and Appellants;
against
THOMAS MATTHEW MACTAGGART AND FIONA MARY HENDRY or
MACTAGGART
Respondents:
_______
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Act: Delibegović-Broome;
Balfour & Manson (for Primrose & Gordon, Dumfries)
(Applicants and Appellants)
Alt: Upton; Lindsays, W.S. (Respondents)
30 March 2007
Introduction
[1] Rascarrel Bay lies on
the Scottish coast of the Solway Firth, in the
old Stewartry of Kirkcudbright. Above it
lies Rascarrel Farm, of which the respondents have been heritable proprietors
since 1997. The nearest settlement of
any size is Auchencairn, while the nearest towns are Kirkcudbright, Castle
Douglas and Dalbeattie. Dumfries is
situated further afield. Next to the
shoreline at the west end of Rascarrel Bay stand eight huts, four to the west
and four to the east of the Rascarrel Burn, numbered 1 - 8. A vehicle access track leads to huts Nos.
5, 6, 7 and 8. A footpath leads across
the Rascarrel Burn by a bridge to huts Nos. 1, 2, 3 and 4.
[2] The
present appeals relate to six of these huts, Nos.2 - 7 inclusive. All eight huts were the subject of
applications to the Lands Tribunal for Scotland ("the Tribunal") under
section 21(1) of the Land Registration (Scotland) Act 1979 ("the 1979
Act"), in which the applicants claimed to be the tenants-at-will of the huts,
and as such entitled under section 20(1) of the 1979 Act, in accordance
with that section, to acquire the landlords' interest as such in the land which
was subject to the tenancies-at-will.
The respondents as landlords lodged answers to the applications. By interlocutor dated 9 December 2005 in all
eight processes the Tribunal, having heard counsel for the parties in debate,
sustained the respondents' first pleas-in-law, being pleas to the relevancy of
the applicants' averments, and dismissed the applications. The application relating to hut No.1 was made
by Patrick Harbinson, so the opinion of the Tribunal was issued sub nom. Patrick Harbinson and Others v Mr
and Mrs Thomas Mactaggart. The
present appeals are brought under section 11(1) and (7) of the Tribunals
and Inquiries Act 1992 by William and Ann Allen (hut No.6), McDonald Boyes and
Irvine Boyes (hut No.2), Kathleen Downes (hut No.7), Thomas McDougall (hut No.5),
Norman Milligan and Christine Milligan (hut No.4) and Samuel Walker (hut No.3)
("the appellants").
The legislation
[3] The 1979 Act is, according to
its long title:
"An act to
provide a system of registration of interests in land in Scotland in place
of the recording of deeds in the Register of Sasines; ... to enable
tenants-at-will to acquire their landlords' interests in the tenancies; ...".
Part IV, "Miscellaneous and
General", starts with provisions in sections 20 - 22 relating to
tenants-at-will. Section 20
provides by sub-section (1):
"A
tenant-at-will shall be entitled, in accordance with this section, to acquire
his landlord's interest as such in the land which is subject to the
tenancy-at-will (hereinafter referred to as the 'tenancy land')."
The following sub-sections enable a
tenant-at-will who wishes to acquire his landlord's interest under
section 20 to serve notice on him and to pay compensation and expenses to
him, in exchange for which the landlord is obliged to convey his interest in the
tenancy land to his tenant-at-will, free of all heritable securities. By sub-section (8), as originally
enacted, the expression "tenant-at-will" was defined as meaning a person:
"(a) who, not being -
(i) a tenant under a lease;
(ii) a kindly tenant; or
(iii) a tenant or occupier by virtue of any
enactment,
is by custom and usage the occupier
(actual or constructive) of land on which there is a building or buildings
erected or acquired for value by him or any predecessor of his;
(b) who is under an obligation to pay a
ground rent to the owner of the land in respect of the said land but not in
respect of the building or buildings on it, or would have been under such an
obligation if the ground rent had not been redeemed; and
(c) whose right of occupancy of the land is
without ish."
Paragraph (a)(ii) ceased to
have effect and was repealed by the Abolition of Feudal Tenure etc. (Scotland) Act 2000
"the 2000 Act", section 76, schedule 12 para.6 and schedule 13,
with effect from 28
November 2004. We refer
below to the effect of section 64 of the 2000 Act.
[4] The
meaning of the word "redeemed" in section 20(8)(b) of the 1979 Act may be
discovered by reference to the Land Tenure Reform (Scotland) Act 1974
("the 1974 Act"), sections 4 and 5 (which were repealed by
schedule 13 to the 2000 Act with effect from 28 November 2004). Section 4 inter alia conferred upon a proprietor of land which was burdened
by a feu duty the right to redeem it by serving notice of redemption upon the
superior. Section 5 inter alia made redemption of an
allocated feu duty obligatory upon the date when entry was taken under a
conveyance of the feu for valuable consideration (as on a sale of the dominium utile) or under an obligation
to grant such a conveyance. By section 4(7)
the expression "feu duty" was defined as including inter alia any perpetual periodical payment in respect of the
tenure, occupancy or use of land or under a land obligation, and by
section 5(12) that definition applied in relation to section 5 with
certain modifications which did not affect the words just quoted.
[5] By
section 21 of the 1979 Act any question arising under section 20 as
to inter alia whether a person is a
tenant-at-will is to be determined by the Tribunal. Section 22, which is not relevant for
present purposes, relates to the position of heritable creditors.
Tenancies-at-will
[6] The expressions
"tenant-at-will" and "tenancy-at-will" are not defined in section 20 of
the 1979 Act, beyond the provisions of sub-section (8) which, partly by
exclusion and partly by inclusion, set out some indicia but not an exhaustive definition. Parliament clearly intended these expressions
to be understood as terms of art, so it is necessary to consider how lawyers
experienced in land tenure would have understood them at the time that the 1979
Act was passed. This in turn requires an
examination of their history, so far as the relatively limited materials
permit.
[7] It
is convenient at this point, because its position is clearer, to refer to the
customary "system of land tenure whereby the persons known as the Kindly
Tenants of Lochmaben hold land on perpetual tenure without meaning to procure
infeftment": see section 64(1) of
the 2000 Act. Such persons, most fully
named the King's (or Crown's) Kindly Tenants of the Four Towns of Lochmaben,
traced their system of tenure to the days of Robert I. "Kindly" in this context meant
hereditary. The kindly tenancy was held
of the Crown, and was vouched by entry in the Rent Roll kept by the Chamberlain
of the Earl of Mansfield, the Crown Steward:
see Gretton, "The Feudal System", para.72, in Reid, The Law of Property in Scotland (1996); and Gordon, Scottish Land Law, 2nd ed. (1999), paras.19-15. Their tenure was described as "not feudal and
yet not truly allodial", but "a right which amounts to full
proprietorship": Royal Four Towns Fishing Association v Assessor for Dumfriesshire 1956 SC 379, following Marquis of Queensberry v Wright (1838) 16 S. 439. In the Scottish Law Commission Report on Abolition of the Feudal System
(Scot Law Com. No.168) (1999) it was recommended that kindly tenancies be
abolished and converted to ownership as part of the scheme of abolition of the
feudal system. This recommendation was
implemented by section 64 of the 2000 Act, with effect from 28 November 2004. As has been seen, kindly tenants were
distinguished from tenants-at-will by section 20(8)(a)(ii) of the 1979
Act; but the two forms of tenure may be
seen from the provisions of that sub-section to have had certain features in
common, and it is noteworthy that kindly tenants were regarded as being the
equivalent of owners of the land occupied by them, albeit without infeftment.
[8] There
is much less authority relating to tenants-at-will than there is about kindly tenants. No mention of the former is to be found in
the institutional writers, though it would seem likely that they were
synonymous with rental-rights, in respect of which Bell, Principles, para.1279 states:
"They were
enrolled in the rental book of the King's stewart, or in that of their lord; and
this, or a copy of the entry, was their sole title. They came to be admitted to a sort of
hereditary right; their widows being permitted to continue their possession,
and their sons to succeed. Rental-rights
had no ish, or term of expiration; ..."
Rental-rights were described in Rankine,
Leases, 3rd ed. (1916) in
historical rather than current terms.
Prior to this, however, the existence of tenancies-at-will was
recognised in the Report from the Select
Committee on Feus and Building Leases (Scotland) (1894), pages ix - x. The committee advised that "provision should
be made by legislation for the enfranchisement of building leases in Scotland, whether
these leases are for a term of years or upon a tenancy-at-will" but no
legislation ensued. In
Chapter XXIII of the Report of the
Royal Commission on the Housing of the Industrial Population of Scotland Rural and Urban (Cd. 8731, 1917) tenancies-at-will
received a fuller treatment than in the earlier report, and a similar
recommendation was made. Again, no legislation
followed, though attempts were made by Bills introduced into the House of
Commons in 1927 and 1935 to provide for the conversion of long leases into
feus.
[9] The
fullest treatment of tenancies-at-will is to be found in the Report of the Scottish Leases Committee
(Cmd. 8656, 1952), paras.70 - 81. In
this passage, the committee stated:
"Mainly on
the north-east of Scotland and in
various parts of the Highlands and Islands, an
appreciable number of houses and some other premises have been erected, we are
told, on land held under the precarious tenure known as tenancy at will. In these villages the builder of a house
rents from the landowner the piece of ground on which he builds it and his name
and the area of the land are entered in the Estate Rental. An informal acknowledgement of the position
may or may not be issued to him at that stage.
If a tenant sells his house an agreed sum passes direct to him from the
purchaser on a simple receipt, no formal conveyance being entered into. The purchaser and seller attend the Estate
rent collector and simply intimate the sale, when the new 'owner's' name is
substituted for that of his predecessor in the Estate Rental Book. Where a tenant dies, the beneficiary of the
lease under his will, or in the case of intestacy the heir-at-law, is entered
as the new owner after he has been identified to the satisfaction of the
landowner's agents. If the family of a
deceased tenant wish a particular succession the landowner registers the
nominated tenant on production of a legal agreement setting out the family's
wishes. Where, occasionally, a tenant
fails to pay his rent, the house reverts to the landowner who sells it and so
recovers the arrears of rent. Generally
the custom is for a landowner to treat the ground rents received from his
tenants at will as feu-duties ... This unusual system is said to operate
satisfactorily but it is understood that most tenancies at will were granted
many years ago ... Our information about tenancies at will suggests ... that even
when a house passes to one who is not the descendant of the tenant at will, the
purchaser is likely to be a local resident.
Tenancies at will seem to occur mostly in closely self-contained
communities. ... [W]e have come to the
conclusion that we do not recommend any interference with this informal system
which works so well in practice."
It appears from this passage that
by the word "precarious" the committee meant that a tenant-at-will had no
contractual right to demand a formal title capable of being recorded in the
Register of Sasines and thus good against all the world, so that there was a
risk that a new owner of the land might dispute his claim to be recognised as a
tenant-at-will (although at an earlier point it was said that the tenure "was
generally regarded as giving the occupant possession during the lifetime of the
premises"). No doubt it was these
considerations among others which led to the inclusion in sections 20 - 22
of the 1979 Act of provisions designed to confer protection on
tenants-at-will.
[10] For completeness, we would add that reference was made to the
following textbooks: Paton and Cameron, Landlord and Tenant (1967) pp.68-9; Joint Consultative Committee of the Law
Society of Scotland and the Registers of Scotland, Registration of Title Practice Book (1981); The
Laws of Scotland: Stair Memorial
Encyclopaedia (1992), vol.13, paras.211 and 334; Gordon, Scottish
Land Law (1999), paras.19-15 to 19-16;
Gloag and Henderson, The Law of
Scotland, 11th ed. (2001), para.41.06; McAllister, Scottish Law of Leases, 3rd ed. (2002), para.1.20; and The
Conveyancing Opinions of Professor J M Halliday, ed. Cusine (1992)
375-6. None of these appears to us to
add anything of significance to the materials we have already quoted, although
it is to be noted that most emphasise the apparent permanence of the tenant's
right to security of tenure so long as the ground rent is paid. The only passage requiring further comment is
an observation by Professor Halliday, in an opinion dated 23 March 1981, in the
cited work at p.376:
"I tend to
the view that 'lease' as used in [section 20(8)(a)(i) of the 1979 Act]
means a written lease."
We are unable to agree with this,
as the statutory provision is unqualified, and a lease may be constituted
without writing; for example it may be a lease for not more than a year,
followed by tacit relocation.
[11] While we would regard reference to the above materials, and in
particular the 1952 Report, as a legitimate aid to construction of the 1979
Act, as casting light on the meanings of the terms of art used in it, we do not
find any ambiguity in the Act. It is,
accordingly, in our view, inappropriate to refer, as counsel for the appellants
invited us to do, to passages in Hansard
showing comments made on behalf of the Government as the Bill passed through
both Houses of Parliament in 1979 (see Pepper
v Hart [1993] AC 593).
[12] The 1979 Act has been applied in a number of decisions of the
Tribunal. In McCann v Anderson 1981 S.L.T. (Lands Tr.) 13 the
Tribunal held that two prefabricated timber garages erected on a gap site in
the village of Hopeman,
Morayshire were not held under tenancies-at-will. The Tribunal said, at p.15:
"[W]e
accept that the Act cannot have been intended to cover all types of structure
which might fall within the term 'building'.
Were this so the Act would, in effect, enfranchise all kinds of informal
arrangements where permission had been given to put up say a henhouse, a garden
shed or a greenhouse or even to site a static caravan. Lacking as it does any definition of
building, we are entitled to consider the mischief which Parliament intended
the Act to remedy. As we understand it,
the Act was intended to assist persons who have, with permission and in return
for a ground rent, built some permanent structure on ground belonging to
another in respect of which no title was to be granted, or have subsequently
become 'owner' of that permanent building. ...
In other words, in seeking a definition of 'buildings' one must, in our
view, look to a substantial structure erected on ground held on an informal
arrangement but nonetheless an arrangement which was intended to be more or
less permanent. There is, of course, a
further important element ..., namely that the permanency should arise from
'custom and usage'. We do not think that
permission to erect a structure which the landlord intends should be removed -
and is readily removable - can ever by itself be the subject of a
tenancy-at-will."
[13] The importance of custom and usage in establishing a
tenancy-at-will was emphasised by the Tribunal in Ferguson v Gibbs 1987 S.L.T. (Lands Tr.) 32 at
p.33. In Conochie v Watt, 7 September 1993,
unreported, the Tribunal held that a boat shed in the village of Pennan, near
Fraserburgh, was held under a tenancy-at-will.
Again, the Tribunal emphasised the importance of custom and usage. At page 21 they said:
"As to the
matter of 'custom and usage', it is in our opinion clear that for the applicant
to succeed she must first be able to prove that Pennan is one of those few
places in Scotland where
tenancies-at-will have 'by custom and usage' been recognised to exist. That that is so was ... conceded by the
respondent."
At page 23 they said:
"It would
be strange indeed if ... Parliament had intended to allow new tenancies-at-will
to be created or to be recognised in areas where they had not previously been
recognised to exist. It is thus in our
view clear that the reference in the Act to 'custom and usage' is, whatever else,
intended to confine the incidence of tenancies-at-will to those few parts of
Scotland where it has been acknowledged that from time immemorial this very
unusual type of tenure has existed."
On another point, the Tribunal
said, at p.9:
"It would
be inconsistent with a tenancy-at-will for the ground rent to be subject to
increase. On the other hand an increase
in rent would be consistent with a tenancy."
The rarity of tenancies-at-will was
again referred to in Maclean v Kershaw, 17 November 1993, unreported. Reference was also made to Duthie v Watson 1997 Hous L.R. 123.
[14] The importance of custom and usage requires no further
emphasis. The expression "custom", in
the legal sense, is defined in the Oxford
English Dictionary as:
"An
established usage which by long continuance has acquired the force of a law or
right, esp. the established usage of
a particular locality, trade, society, or the like."
Similar definitions may be found in
the authorities cited in Stroud's
Judicial Dictionary of Words and Phrases, 7th ed. (2006) and Words and Phrases Legally Defined, 3rd
ed. (1988). As is specifically
recognised by the 1979 Act, custom may be accorded the force of law in the
locality in which it is recognised and practised. It follows from this that, for the purposes
of the statute, it must be possible to identify and delineate, with adequate
precision, the locality in question, and to describe, in sufficient detail, the
nature and terms of the "custom and usage" which the inhabitants of that
locality generally recognise as having the force of law in place of the system
of land tenure applying elsewhere in Scotland.
[15] The reports and cases to which reference has been made serve to
establish that tenancies-at-will have been recognised in particular in fishing
communities on the Seafield Estate and other estates in north east Scotland, and in
the mining village of Leadhills on the
Hopetoun Estate in south Lanarkshire.
Apart from the Kindly Tenants of Lochmaben, which were recognised as
constituting a separate category, no informal system of land tenure has
hitherto been recognised in south west Scotland. It would therefore be necessary to examine
with particular care any claim that tenancies-at-will had come into existence
on the Solway coast as recently as the twentieth century.
[16] What the tenancies-at-will which have hitherto been recognised
appear to us to have in common is that they have been established in places
where there has been a pressing social need for housing adjacent to a place of
work (such as fishing or mining), where the residents have required security of
tenure for themselves and their families but have been unable to afford the
expense of formal conveyancing, and where landlords, no doubt of large estates
and with a paternalist disposition, have been trusted to provide security of
tenure in accordance with informal, but well-recognised, conventions.
[17] Section 20(8) of the 1979 Act, set forth above, sets forth
the conditions which must be satisfied if a tenancy-at-will is to be recognised. These include the requirement that the
occupier must not be a tenant under a lease.
If, therefore, the land is occupied on terms sufficient to establish the
existence of a lease, the occupation is not under a tenancy-at-will. There must be an obligation to pay a ground
rent to the owner of the land in respect of the land but not in respect of the
building or buildings on it, or would have been under such an obligation if the
ground rent had not been redeemed. The
concept of redemption connotes an unvarying amount: cf. section 4 of the 1974 Act, referred
to above. The right of occupancy of the
land must be without ish, i.e. without any fixed term. It follows from this that (subject to
possible local customary variation) the ground rent payable under a
tenancy-at-will, like feu duty, is fixed for all time. Changes in the amount of ground rent point to
the existence of a lease rather than a tenancy-at-will. We have already emphasised the importance of
the need to establish the existence of the necessary custom and usage in the
locality in question.
The appellants' pleadings
[18] Against the background of
the foregoing discussion of the law relating to tenancies-at-will, it is
possible for us to discuss the pleadings for the appellants relatively
briefly. It is necessary first to
explain something of the procedural context in which they came before us. The Lands Tribunal for Scotland Rules 2003
(SSI 2003/452) contain the formal requirements as to pleadings. These are supplemented by the "Guidance Note
for Hearings" published by the Tribunal, which makes clear, at page 8, as
might be expected, that the normal rule is that formal pleadings should make
clear what is in dispute and give proper notice of what it is that an applicant
relies on to justify a finding in his favour.
Reference is made to the concept of fair notice. The basic requirement of relevancy thus
applies as much to pleadings in applications to the Tribunal as it does in any
other court. Moreover, in the present
case, the Tribunal, as they record, afforded the appellants an opportunity to
reconsider their pleadings and to propose an amendment. Notwithstanding this, the Tribunal found that
the appellants' pleadings were irrelevant.
Although many months passed after the appellants appealed to this court
against the Tribunal's decision, no attempt was made by them to amend their
pleadings. Counsel who appeared before
us on their behalf had evidently only recently been instructed for the first
time. She explained to us that on being
instructed she had requested information on a number of points with a view to possible
amendment. By the time that the appeal
was heard before us, that information had not been provided, and counsel was
not in a position on the day to propose, on instruction, any specific
amendment. We allowed an adjournment so
that those acting for the appellants could consider whether to move us to
discharge the diet and continue the appeal, with a view to amendment, but at the
conclusion of the adjournment counsel informed us that her instructions were to
proceed to argue the appeal on the basis of the pleadings as they stood before
the Tribunal and again before us. Counsel
was thus placed in a very difficult position and, whilst she commendably made
the best of a bad job, she could not save the appellants' pleadings from being
subjected to appropriate scrutiny.
[19] The appellants William and Ann Allen aver:
"Hut No.6
was erected in or around 1936. The
original owner was Mr Allen, Senior, father of one of the applicants. The applicants inherited it from
Mr Allen in 1980. Since 1980 the
applicants have owned and occupied the hut as their weekend and holiday home. Historically the eight huts have been owned
and passed on to local Dumfries and
Dalbeattie residents. The applicants are
by custom and usage the occupiers of the land on which hut 6 was erected
by their predecessors. The applicants
are liable and have paid rates annually since they acquired the hut and
continue to do so. The hut is of
sufficient size and has appropriate fittings and fixtures to permit overnight
and holiday residence. ... There is and
has been no written agreement [between the] applicants or their predecessors
and the respondents regulating payment of a ground rent."
There are similar averments for the
other appellants. The appellants
McDonald Boyes and Irvine Boyes aver that hut No.2 was erected in or around
1935 and extended in 1946. The original
owner was William Boyes, father of these appellants, who owned and occupied it
from 1935 until 1992, when they inherited it and have since then owned and
occupied it as their weekend and holiday home.
The appellant Kathleen Downes avers that hut No.7 was erected in or
around 1940 and remained in position until it was rebuilt in or around 1960. Subsequently, in or around 1978, it burnt
down and was rebuilt on the same site.
It was originally a roadman's caravan without wheels, resting on blocks. The original owners were Mr and Mrs George
Kerr, grandparents of this appellant, who inherited it after the death of her
grandmother Mrs Mildred Kerr in 1986, since when she has owned and
occupied it as her weekend and holiday home.
The appellant Thomas McDougall avers that hut No.5 was erected in or
around the 1940s. The original owner was
Mrs Brodie from whom this appellant acquired it in 1959, since when he has
owned and occupied it as his weekend and holiday home. The applicants Norman and Christine Milligan
aver that hut No.4 was erected in or around the 1940s. The original owner was Alex Welsh. In or around 1965 the owner was Alexander
Clark. Thereafter John Derby acquired
it. In 1987 these appellants paid £150
to John Derby for the hut, and since then they have owned and occupied it as
their weekend and holiday home. The
appellant Samuel Walker avers that hut No.3 was erected in or around 1946. The original owner was Mrs F Little,
from whom he acquired it in 1998. This
appellant has owned and occupied the hut as his weekend and holiday home. The pleadings for all of the appellants contain
admissions that the respondents and their predecessors in title have demanded,
and the appellants have accepted without protest, until recently, increases in
the ground rent from as little as £5 for each hut in the 1960s to £500 in 2004.
[20] The Tribunal decided that the appellants' pleadings were
irrelevant. The Tribunal held, in
summary, on consideration of section 20(8) of the 1979 Act, that for the
existence of a tenancy-at-will there required to be an established tenure which
was permanent in its nature. The appellants
accepted that the rents had changed from time to time and, in the absence of
explanation, this appeared inconsistent with a permanent tenure. The Tribunal considered it to be fatal to the
applications. The Tribunal also considered
whether it would be appropriate to give the appellants a further opportunity to
amend on this matter, but, in the circumstances, decided against that.
Discussion
[21] As has been seen, we were given the opportunity to examine the
statutory requirements in some detail.
We are entirely satisfied that the appellants' pleadings (imperfect as
their counsel recognised them to be) do not meet these requirements. While there is no need to assume that
Parliament intended that "custom and usage" should have existed from time
immemorial, or even for a very long time, and they might, for the purposes of
the 1979 Act, have been established in a particular locality as recently as the
1930s and the 1940s, nevertheless it is clear from the statute that, at the date
at which a tenancy-at-will is claimed by an applicant to exist, it must be
possible to prove that the necessary custom and usage have become established
in the locality. The averments for the
appellants pay no more than lip-service to the concept of custom and usage. They make no attempt to define the locality
in which, the inhabitants among whom or the terms and conditions on which the
custom and usage are alleged to operate.
The averments go no further than to establish that there has been an
arrangement under which the respondents and their predecessors in title have
permitted the occupiers of the eight huts to occupy them in exchange for
payment of a ground rent which has varied from time to time. There is no averment which would serve to
establish who was responsible for the erection of any of the huts in the first
place. The facts, so far as averred,
would indicate the existence of informal leases from year to year, not
tenancies-at-will without ish. The
absence of any averments sufficient to establish the necessary custom and
usage, and the admissions about rent increases, therefore appear to us, as the
latter did to the Tribunal, to render the applicants' pleadings fundamentally
irrelevant.
Decision
[22] For these reasons these
appeals must be refused.
