SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

A376/12

		JUDGEMENT   by   GRAEME NAPIER ESQ., SHERIFF OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
		in
		THE GOVERNORS OF ROBB'S TRUST
		Pursuers
		against
		DAVID ALLAN EDWARDS
		Defender   ______________________

 

 

 

Act: Merson, Solicitor, Stronachs, LLP, Aberdeen

Alt: Defender, personally present

 

 

 

 

ABERDEEN, 9^th August 2013.

 

The sheriff, having resumed consideration of the cause, Repels the pursuers' tenth plea-in-law and the defender's third plea-in-law; Sustains the pursuers' sixth to ninth and eleventh pleas-in-law; excludes from probation the Defender's answers in each of Answers 2,3,4,5 and 7; and

(1) Grants decree against the defender for payment to the pursuers of the sum of TWENTY TWO THOUSAND THREE HUNDRED AND EIGHTY ONE POUNDS AND FORTY ONE PENCE STERLING (£22,381.41) with interest thereon at the rate of eight per centum per annum from the date of citation until payment, all in terms of crave 1;

 

(2) Grants decree against the defender for payment to the pursuers of the sum of ONE HUNDRED AND SIX THOUSAND ONE HUNDRED AND NINETY TWO POUNDS STERLING (£106,192.00) with interest at the rate of eight per cent per annum from the date of citation until payment, all in terms of crave 2;

 

(3) Grants decree against the defender for payment to the pursuers of the sum of FORTY SEVEN THOUSAND SIX HUNDRED AND TWENTY POUNDS AND FIFTY THREE PENCE STERLING (£47,620.53) with interest thereon at the rate of eight per cent per annum from the date of citation until payment, all in terms of crave 3;

(4) Continues consideration of the pursuers' 5^th plea-in-law;

 

(5) Reserves all questions of expenses; and

 

(6) Assigns 6 September 2013 at 10.00 AM in Aberdeen Sheriff Court as a hearing on expenses and to determine further procedure in relation to the pursuers' fourth crave.

 

 

Sheriff

 

 

 

 

 

NOTE:

[1]         This matter called before me for debate on the pursuers' sixth to eleventh pleas-in-law and the defender's third plea-in-law. Rule 22 notes had been lodged (nos. 13 and 15 of process).

 

[2]         The pursuers were represented by Mr Merson, solicitor, Aberdeen. The defender appeared on his own behalf as he has done previously, saying that he could not afford to instruct solicitors but was not entitled to Legal Aid.

 

 

Background

[3]         The defender was formerly a tenant farmer and the pursuers his landlord in terms of a lease between the parties entered into in 1975 in respect of Pitcow Farm, Whiterashes, Aberdeenshire. The defender took entry in May 1976 and the ish date was Whitsunday 1986. Thereafter the lease was continued by tacit relocation.

 

[4]         It was accepted that the lease under which the defender held Pitcow farm is subject to the provisions of the Agriculture Holdings (Scotland) Act 1991. The 1991 Act consolidates the Agricultural Holdings (Scotland) Act 1949 and other enactments relating to agricultural holdings in Scotland. The Act makes general provisions for agricultural tenancies including the terms of leases; procedures for varying rent; the tenant's right to withhold rent; procedures for termination of leases; notices to quit and intimations of intention to quit; compensation including for improvements; and arbitration and other proceedings (part VII). The act was substantially amended, including in relation to arbitration proceedings, by the Agricultural Holdings (Scotland) Act 2003 Act. It was accepted that the provisions which apply in this case are those which applied before the amendments brought about by the Act 2003.

 

[5]         There have been a number of disputes between parties going back to 1996 when, the pursuers aver, the defender fell into arrears with the payment of rent due under the lease. According to the scheme of the 1991 Act certain disputes fall to be referred to an Arbiter. Appeals from an Arbiter and other issues are subject to the exclusive jurisdiction of the Scottish Land Court. The Sheriff Court has only a limited jurisdiction. It is agreed that proceedings for payment of arrears of rent were raised in Aberdeen Sheriff Court (Ref. No. A2484/96). That case is currently sisted. Other than as background that case is not relevant to the current proceedings.

 

[6]         It also seems that there have been a number of other disputes between parties which have been referred to an arbiter appointed under the Agriculture Holdings (Scotland) Act 1991. There have also been proceedings before the Scottish Land Court including an appeal against the determination of an arbiter and proceedings which resulted in the defender's eviction from the farm as at 30 October 2013.

 

[7]         In 1999 an Arbiter was appointed to determine the rent for the subjects (Arbitration reference LTC/A1892).

 

[8]         It is the pursuers' case that on 4 October 2001 a 'Demand to Remedy Notice' under the 1991 Act was served on the defender. This required him to make payment of the rent within a specified period. Payment was not forthcoming and a Notice to Quit was served under the 1991 Act on 23 May 2002. The defender disputed these notices. A further Demand to Remedy was served in June 2002 requiring the payment of rent within 2 months.

 

[9]         Following this, on 9 August 2002, the Scottish Ministers appointed an arbiter in accordance with the provisions of Schedule 7 to the 1991 act. The purpose of the arbitration was to determine whether the June 2002 Demand was a valid and correct demand "there being no question or difference as to liability for rent". This is the arbitration with reference LTC/A1920.

 

[10]       On 6 September 2002 the Scottish Ministers appointed the same arbiter to determine 3 other matters under arbitration reference LTC/A1921. These matters related to

 

a.     All questions arising out of the reason stated in the Notice to Quit dated 23 May 2003;

b.     Whether the Demand served on 4 October 2001 was valid and correct, there being no difference or question as to liability for rent; and

c.     Whether the Notice to Quit dated 23 May 2002 was valid and incontestable.

 

[11]       It also appears that the same arbiter was appointed in another arbitration (LTC/ A1919) to determine whether the defender was to be held responsible for repairs and renewals to the farm's fixed assets. That is the extent of the averments on record in relation to that arbitration other than the defender's contention that the arbiter "sidestepped that arbitration" and that the defender asked the Scottish Government to replace the arbiter.

 

[12]       The pursuers accept that following the appointment of the arbiter there were discussions between parties with a view to resolving all issues on the basis of a sale of the farm to the defender. It is not disputed in the pleadings that these negotiations failed to reach a settlement.

 

[13]       A hearing was held on the A/1920 and A/1921 arbitrations in May 2012 with an Award being issued on 14 June 2012.

 

[14]       In relation to Arbitration LTC/A1921 it was determined that the Demand to Remedy dated 4 October 2001 was valid and correct; and that the Notice to Quit dated 23 May 2002 was valid and incontestable.

 

[15]       In Arbitration LTC/A1920 the arbiter determined that the Demand served on 18 June 2002 was valid and correct there being no question or difference as to liability for rent.

 

[16]       This court has no jurisdiction to enquire into those awards. The defender had appealed to the Scottish land Court (ref no SLC/100/11) against the Awards in Arbitrations LTC/A1920 and 1921. Ultimately the Appeal was dismissed by the Scottish Land Court on 19 June 2012 and the defender was found liable in expenses. Other than as background the appeal process is not a matter of concern for me.

 

[17]       The lease between the parties was brought to an end at the effective date of the Notice to Quit, namely 28 May 2003 and the pursuers contend that any occupation of the premises after that date is unlawful and they as landlords have not had the benefit of a vacant farm.

 

[18]       On 13 July 2012 the pursuers applied to the Scottish Land Court for declarator that the lease was at an end and for an order evicting the defender from the subjects. Declarator and warrant for eviction were issued by the court on 3 September and in due course the defender was evicted on 30 October 2012.

 

The present action

[19]       The pursuers seek decree for payment to them by the defender of various sums which they allege are due to them as unpaid rent; as reparation for damage occasioned by the defender's failure to vacate the premises after service of a Notice to Quit; in respect of the arbiter's expenses, which the pursuers have paid although the defender was found libel in respect of these expenses; and in respect of the pursuers' legal expenses associated with the arbitrations.

 

[20]       The pursuers' position at debate was that the defender has not pled a relevant defence to any of these claims and accordingly decree de plano should be granted in their favour. In total, the sums craved amount to £238,738.59. The pursuers accept, however, that £62,554.65 of that figure is subject to taxation.

 

[21]       The pursuers' Rule 22 Note sets out in some detail the basis of their argument.

 

[22]       The defender's case has been pled by him personally. It lacks the refinement to be expected of a case pled by a solicitor but the defender's position is relatively clear. The issue is whether what he pleads can amount to a defence to any of the case pled by the pursuers. His main difficulty is that he is unable to disentangle himself from the history of dealings with the pursuers and his disagreement with decisions made by an arbiter and by the Scottish Land Court to the extent that those decisions went against him. He has 13 pleas-in- law. Some are easier to follow than others but the 3^rd plea-in-law purports to be an attack on the specification as far as the second sum sued for. The debate proceeded on this basis. The defender has lodged what he describes as a Rule 22 note in support of this.

 

 

The pursuers' preliminary pleas

 

6^th Plea-in-Law

 

[23]       Much of the background to this case is set out in Article 2 of Condescendence. The defender's response is found in Answer 2.

 

[24]       The pursuers' sixth plea-in-law is an attack on the defender's averments in answer 2. In this answer the defender attempts to introduce averments which the pursuers contend are irrelevant to the matter currently before the court. The defender's averments are found at pages 5 to 9 of the Record (No. 12 of process).

 

[25]       He seeks to introduce averments relating to the withholding of rent between 1996 and 2001 and in relation to the other action between the parties (Aberdeen Sheriff Court reference number A2484/96). He says "between 1996 and 2001 the defender (on advice of Stephen A. Bell QC and his then solicitors Burnsides) withheld rent for the same amount as the defender had to pay for water charges incurred by the defender due to the pursuers not making good the water supply to Pitcow Farm as damaged by the pursuers during works that were instructed by the pursuers". The pursuers' position is that these averments cannot amount to a defence to this part of the claim. They are said to be irrelevant to the current proceedings as the pursuers do not seek payment for any rent which were due during that period.

 

[26]       The pursuers' point, as I understand it, is that such amounts said to have been retained by the defender in respect of rent due between 1996 and 2001 may be relevant to another action but are not relevant to the present action

 

[27]       The defender narrates his disagreement with the award in a rent-arbitration, alleging error on the part of the arbiter, but the pursuer points out that this award was subject to an appeal by the defender to the Scottish Land Court which dismissed the appeal. That is not a matter which can be reviewed by this court.

 

[28]       The defender makes averments about money said to be due to him by Transco but they are not parties to these proceedings.

 

[29]       He narrates that in the course of protracted litigation there have been discussions about settlement but, argue the pursuers, as there is no averment that such discussions reached any conclusion they cannot be relevant.

 

[30]       There are averments about correspondence between the defender and the Scottish Government Land Tenure Department regarding the replacement of the arbiter appointed to arbitrations LTC/A1919, LTC/A1920 and LTC/A1921. The pursuers say these averments are irrelevant to the present proceedings.

 

[31]       The only arguably relevant averment is a bald denial in the 3^rd sentence of Answer 3 that the pursuers are not entitled to any damages in respect of the enjoyment of vacant possession - but there is a complete lack of specification of the basis for this proposition.

 

[32]       At debate the defender was unable to answer these criticisms. The pursuers' points are relatively straightforward and ones with which I agree. They invite me to refuse to admit these answers to probation. I do not consider that these averments by the defender could be admitted to probation if the case was to proceed to that stage, essentially for the reasons set out by the pursuers' agent.

 

Pursuer's 7^th Plea-in-Law

[33]       Crave 1 is for payment of £22,381.41 which is said to be rent due under the lease from, and including, the instalment due at Martinmas 1996. It is said by the pursuers that the rent due at the relevant time was £8,700 per annum payable in two instalments, each of £4,350. Article 3 of condescendence sets out the history of payments from Martinmas 1996 until Whitsunday 2001, bringing out a balance of rent said to be due of £18,031.41. This figure falls to be reduced by a payment to account of £10,000 made by the defender, leaving a balance due of £8,031.41 in respect of that period. Article 3 of Condescendence also sets out the history of rental payments said to be due from Whitsunday 2001 until Whitsunday 2003, bringing out a total figure said to be due, including the £8,031.4, of £22,381.41.

 

[34]       There is nothing in Answer 2 which is relevant as a defence to this claim. There is no denial that the sums are due. Answer 3 is in the following terms:

 

"The defender avers that the arbiter's decisions in respect of arbitrations LPC/A892, LPC/1920 and LPC/A1921 are flawed due to the dubious circumstances that surround them. The defender craves the sheriff court to replace the arbiter for arbitration LTC/A1919. The defender has no knowledge of any demand notice for £18,031.14 and in any event the pursuers were returning the defender's rent cheques (see attachment A)."

 

[35]       The pursuers say that these averments in answer are irrelevant and lacking in specification. The issue of the amount of rent due was dealt with by the arbiter and in proceedings before the Scottish Land Court. These are accordingly said to be irrelevant to the issue before this court.

 

[36]       I cannot find anything in his averments in answer which could be relevant to the question of whether he is liable to make payment of the sums said to be due. He invites the court, without the benefit of a counter claim to replace the arbiter in Arbitration LTC/A1919 (which in any event would, in my view, be of doubtful competence.) Although the defender says that he has now lodged a Summary Application with this court. I was told that there was no warrant for service. At one point the defender invited me to sist these current proceedings to allow him to make progress with that action. This was opposed by the pursuers and the defender could not put forward any cogent reason for me delaying this matter still further). And I indicated that I was not minded to grant a sist and the matter was not pursued. In any event, as the pursuers argue, what might happen in the future is irrelevant to these current proceedings.

 

[37]       The pursuers argue that whether or not cheques were returned by the pursuers is irrelevant to the question of whether rent is due (albeit it may be relevant to the question of necessity of the action and have an impact upon the question of expenses, a point not taken by the defender).

 

[38]       I can see no relevant defence to this aspect of the pursuers' claim. That being the case, the pursuers argue that no relevant defence having been stated, decree de plano (for £22,381.41) should be granted in terms of crave 1, a proposition with which I have no difficulty in agreeing.

 

 

Pursuers' eight plea-in-law

[39]       Crave 2 is for payment of £106,192 and relates to the averred unlawful occupation of the subjects by the defender from 28 May 2003 until 30 October 2012, when the defender eventually left the subjects. The basis of the claim is that the pursuers are entitled to damages for the periods of unlawful occupation. The calculations are based upon the market value of the rent they could have expected to receive as assessed by the arbiter. The crave is supported by averments in Article 4 of condescendence. The pursuers' 8^th plea-in-law attacks the defender's answer 4 as being irrelevant et separatim being lacking in specification. I am invited not to admit these averments to probation but to grant decree de plano in terms of Crave 2.

[40]       The defender's answer is to dispute that he had been in unlawful occupation of the subjects but sets out no basis upon which that could be concluded. He makes averments about an offer to sell the farm and simply denies that the pursuers are entitled to any damages in regard to the enjoyment of vacant possession. He sets out no basis in law or in fact for such a denial. He goes on to aver that the pursuers are liable to pay him a sum of money "(yet to be calculated)" in respect of an alleged loss of enjoyment of the farm from 1995 due to the pursuers failure to make good the farm's fixed assets. He accepts that he had occupation of the subjects from 28 May 2003 until 1 October 2012. He sets out no reason why he should not pay damages to the pursuers for the period of occupation. The basis of calculation is determined by the sums set by the arbiter. His appeals against these assessments were dismissed by the Scottish Land Court. The defender does not argue with that as a basis for calculation of damages. It does not seem to me to be so unreasonable that I should not, in the absence of any cogent reason, accept it as a reasonable estimate of loss.

[41]       I agree with the pursuers. The background to this is that following the defender's failure to make payment of a number of rent instalments, a Demand to Remedy Notice required the defender to pay rent within a specified period was served on the defender. Payment was not made. A Notice to Quit under Section 22(2) (d) of the 1991 Act was served on the grounds that the defender had failed to comply with that Demand (to pay rent due within two months). This was served on 23 May 2002. There was a dispute about the Demand and a Demand for rent Remedy was again served on 18 June 2002 requiring payment within two months. The validity of the process was referred to an arbitration, an arbiter appointed by the Scottish Ministers on 9 August 2002 in terms of Schedule 7 to the 1981 Act to determine whether the Demand in writing served by the landlord on 18 June 2002 was valid and correct "there being no question of difference as to liability for rent". This arbitration has reference LTC/A1920. On 6 September 2002, the Scottish Ministers appointed the same arbiter to determine further questions in relation to the Notice to Quit served on 27 May 2002. There was a hearing on 14 May 2012 which evidence was heard. On 14 June 2012, the arbiter issued his award in respect of arbitration and the Notice for Quit dated 23 May 2002 requiring the tenant to remove from the subjects was valid and incontestable. In the other arbitration he determines that the demand in writing served on 18 June 2002 was valid and correct. As a result, since 28 May 2003 the effective date of the notice, the lease was at an end and the occupation of the subjects was thereafter unlawful.

 

[42]       I can see no basis upon which the defender has a relevant defence to this part of the claim and consider that decree in respect of crave 2 should be granted.

 

 

 

 

Pursuers' ninth plea-in-law

[43]       Crave 3, which seeks payment of £47,620, is supported by averments in Article 5 of condescendence. In summary these are to the effect that at the conclusion of the arbitrations the arbiter found the defender liable to make payment to the pursuers of the expenses of each arbitration. In relation to Arbitrations LTC/A1920 and 1921 the arbiter's total expenses were £25,948.86. In respect of the rent arbitration, LTC/A1892 the defender the expenses amounted to £21,679.67. The pursuers argue that the defender's averments in Answer 5 are irrelevant and lacking in specification and that decree de plano should be granted in terms of Crave 3.

 

[44]       Even though the defender has been found liable for the expenses, Section 63 of the Agricultural Holdings (Scotland) Act 1991 Act allows the arbiter to demand payment from the pursuers of his expenses in relation to these three arbitrations. It is then up to the pursuers to pursue the defender for recovery. The pursuers aver that they paid this sum to the arbiter and are entitled to repayment.

 

[45]       The defender's response is that the arbiter's fees are excessive and have not been taxed or audited by the Scottish Office "as is necessary". Further it is said that in any event should the defender be successful in any further appeal these fees "may not be the defender's responsibility".

[46]       The pursuers' point is that the defender specifies no clear basis upon which it would be open to this court to question the fees charged by the arbiter and paid to him by the pursuers.

 

[47]       Further, the averments in relation to a potential successful appeal are said to be patently irrelevant as the arbitration has already been subject in an appeal and the arbiter's awards on the other arbitrations are said to have been implemented by the Scottish Land Court by an interlocutor dated 3 September 2011.

 

[48]       Section 63 of the 1991 Act was amended in 2003 but it is the pre-amendment version which is relevant here. In terms of that statutory provision where an arbiter is appointed by the Scottish Ministers (as successors to the Secretary of State) under schedule 7 (as here) it is the Scottish Ministers who "fix" the arbiter's remuneration. There is no provision for audit or taxation. In terms of section 63(3) (c) the arbiter can recover the remuneration as "a debt due by either party" and in terms of section 63(3) (d) the amount paid by either party in excess of the amount directed to be paid by that party in respect of the expenses of the award shall be recoverable from the other party.

 

[49]       In this case the pursuers' case is that they were found entitled to expenses in the arbitrations. This means that they can recover from the defender any of the arbiter's costs which they paid.

 

[50]       The defender does not seek to quarrel with the pursuer's position and sets out no basis upon which the he can argue that these sums are not enforceable against him. He does not dispute that the remuneration was fixed by the Scottish Ministers. The decisions have been before the Land Court and have not been interfered with I agree with the pursuers' contention that decree de plano payment in terms of crave 3 should be granted.

 

 

Pursuers' plea-in-law 10

[51]       The position in respect of Crave 4 and plea-in-law 10 is very similar to that in respect of Crave 3 and plea-in-law 9 with one significant difference.

 

[52]       In terms of Crave 4, the pursuer seeks payment of 3 separate sums of money: (a) £1,069.18; (b) £20,484.49; (d) £21,000.98 (or such other sums as the court fixes) in respect of the pursuers' legal expenses in respect of the three arbitrations.

 

[53]       The relevant averments are contained in Article 6 of condescendence and Answer 6. It is not disputed by the defender that the arbiter also made a finding that the defender should make payment to the pursuers of their legal expenses "as same may be taxed" as the pursuers put it. The pursuers' agent accepted that the sums claimed are not "as taxed". The sums claimed are as brought out by their un-taxed accounts. Arguably the crave for payment is therefore premature but that point has not been taken by the defender. What he says is that the crave lacks specification; the pursuers are grabbing figures out of thin air; and "the sum should be alienated and dismissed". He then also sets out information about his own expenses in the whole process.

 

[54]       The difficulty for the pursuers is how I should deal with this claim. I was invited by the pursuers' agent to simply make a finding that the pursuers are entitled to payment of these sums or such other sums as brought out by the auditor when the accounts are taxed. It is not entirely clear to me that the pursuers have given enough thought to the implications of this proposal. The fourth crave on record is for decree for payment. That also reflects the terms of their preliminary Plea-in-law 5, in which the pursuers seek decree de plano. That does not seem to me to be a step that I am entitled to take. At most I could allow the account to be remitted to the auditor of court to tax and report continuing consideration of this crave until that had been done, continuing the cause on the procedure roll or sisting the cause. It should not be for me to construct a mechanism not craved.

[55]       It seems to me that the effect of the award by the arbiter was to allow the pursuers to have an account of expenses made up and taxed by the auditor of court. Once that was done the extent of the defender's liability would be certain and the pursuers could attempt to recover that sum as a debt as envisaged by section 63 of the 1991 Act. Clearly, however that stage has not yet been reached and until it has been it seems to me the action is premature in this respect.

 

[56]       Had the defender been legally represented it is likely that he would have had more focussed preliminary pleas. All he has by way of preliminary plea is plea in law 3 upon which the debate proceeded. He does have another plea-in-law (6^th plea in law) which reads: "The defender denies that he is due to pay expenses of the arbitrations as outstanding matters. Decree is therefore premature and should be dismissed". This was not debated as a preliminary plea.

 

[57]       The pursuer's 10^th plea-in-law anent crave 4 is that the defender's averments in Answer 6 being irrelevant et separatim lacking in specification should not be admitted to probation and decree should be granted "in terms of the report of the auditor of court". That plea does not, however, support the crave which is for payment of 3 specified sums not said to have been approved by the auditor of court.

 

[58]       I am not persuaded that I can do what the pursuer asks me to do even if I was to hold that the defender's averments are entirely irrelevant. I certainly accept that had I been minded to allow a proof in respect of this head of the pursuer's claim I would have excluded from probation his averments anent his own legal fees. He may be able to argue the prematurity point. Although there is no relevant plea by the defender which would allow me to dismiss this crave nor do I see how I can allow a proof on this aspect. The only option is to continue consideration of this head of claim to allow parties to address me at a procedure roll hearing at which time I can deal with the question of expenses arising from the debate

 

Pursuer's 11^th plea-in-law

[59]       In article 7 of Condescendence the pursuers make averments about issues which are relevant only to the issue of the warrants for arrestment and inhibition on the dependence sought when proceedings were raised. These are not matters which it is appropriate to consider at a debate and I would not normally be concerned with averments in answer. However in Answer 7 the defender raises the issue of compensation due to him in relation to the pursuers having recovered possession of the farm. The pursuers point out that the issue of way-go falls within the exclusive jurisdiction of the Land Court (in terms of section 60 of the 1991 Act).

 

[60]       I agree that had the matter been proceeding to proof the averments anent compensation in Answer 7 would not be admitted to probation.

 

 

Pursuer's other argument

[61]       In paragraph 7 of the pursuers' rule 22 note I am invited to repel the defender's pleas- in-law 2,4,6,7,8,9,10,11,12 and 13. I am not doing so, firstly because it is unnecessary given that I am not allowing a proof but moreover the pursuer does not have any preliminary plea to support this proposal.

 

[62]       These 'pleas in law' for the defender are not in recognised form. They are not distinct propositions in law to be applied to relevant averment supporting craves. In plea-in-law 2 the pursuer says that he places little authenticity on a notice to quit and "craves that loss was suffered by the defender by the Pursuer not making good the farm's fixed equipment; in plea-in-law 4 the pursuer argues that he is under no obligation to pay the arbiter's expenses which were at any length excessive and unaudited and he craves the court "to replace the arbiter for what he describes as an outstanding arbitration LTCF/A1919 and to set aside or remove the arbiter's awards in arbitrations LTC/A1920 and 1921" in plea-in-law 6 the defender "craves the court for arrested funds to be released; in plea-in-law 7 the defender craves the court for Inhibition on property jointly owned to be lifted" as legal aid has been refused and he feels threatened; in plea-in-law 8 the defender invites the court to deny amendments to pleas-in- law, the amendment having been previously allowed; in plea-in-law 9 the defender makes assertions that the pursuers' agent is being advised by a solicitor who previously acted for him (defender) and craves the court "to alienate any advice given by [that solicitor]" as he "may be breaching professional ethics"; in plea-in-law 10 the defender avers that the pursuers are delaying outgoing valuations/compensations and seeks an inhibition (without suggesting that the procedures set out in the Debtors (Scotland) Act 1987 had been followed; in plea-in-law 11 the defender seeks interdict against the sale of the farm by the pursuers without any crave or supporting averments; in plea-in-law 12 the defender 'craves' the reopening of the 1996 sisted action; and in plea-in-law 13 he seeks an inhibition against the pursuers doing works on the fixed assets at the farm which might jeopardise the outcome of Arbitration LTC/1919.

 

[63]       Had there been an appropriate preliminary plea for the pursuers I would have been likely to repel these on the basis set out by the pursuers in the Rule 22 Note namely there are no craves, counterclaims or averments to support these ; or that they are simply wrong in law. As it is the matter is not proceeding to proof.

 

 

The Defender's preliminary plea

[64]       In his rule 22 note the defender asserts that he has 3 preliminary pleas 1, 2 and 3. With the exception of plea-in-law 3, I do not understand how these could be considered preliminary pleas. The debate proceeded on the basis that only the third plea-in-law was a preliminary plea-in-law. This plea is directed only to the specification of the second sum sued for (the £106,192 damages for unlawful occupation). However as is clear from the pleadings the basis of calculation is clearly set out. The defender makes no criticism of the basis of calculation and offers no alternative. I agree that it falls to be repelled.

 

 

Decision

[65]       I propose to sustain the pursuer's sixth to ninth and eleventh pleas in law and to grant decree in relation to craves 1, 2 and 3. I cannot proceed as suggested by Mr Merson at debate in relation to crave 4. Nor can I simply dismiss the crave given the state of the defender's pleadings. I consider that these difficulties should be resolved at a procedure roll hearing when parties can address me further on the procedure they propose. In any event as there is arguably mixed success following the debate it is appropriate that this question be discussed at the same time as the question of expenses.