Barns-Graham v Lamont
| Jurisdiction | Scotland |
| Judgment Date | 19 March 1971 |
| Docket Number | No. 23. |
| Date | 19 March 1971 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Landlord and TenantTermination of leaseAgricultural subjectsCompensation due for disturbanceLiability of landlord for additional sum to assist in reorganisation of tenant's affairsNotice to quit accompanied by letter explaining landlord's reasons, but not containing word "hardship"Whether notice and letter to be read as one documentAgriculture (Miscellaneous Provisions) Act, 1968 (cap. 34), sees. 9 (1) and 11 (1) (b).
Sec. 9 (1) of the Agriculture (Miscellaneous Provisions) Act, 1968, provides that, where compensation for disturbance is payable by a landlord to a tenant, an additional sum shall be payable by the landlord to the tenant to assist in the reorganisation of the tenant's affairs. Sec. 11 enacts:"(1) no sum shall be payable in pursuance of section 9 of this Act in consequence of the termination of the tenancy by virtue of a notice to quit in a case where (b) the relevant notice contains a statement that the landlord will suffer hardship unless the notice has effect "
The landlord of an agricultural holding served on his tenant a notice to quit. There was enclosed with the notice a letter, of even date, which stated that it was the landlord's intention that his son, who had just completed his agricultural training, should farm the holding. Neither in the notice nor in the letter was the word "hardship" used. The tenant having removed from the holding and having claimed from the landlord a sum to assist him in the reorganisation of his affairs, the Land Court held that, even if the letter fell to be read along with the notice, its terms did not amount to an unequivocal statement of hardship to the landlord, and that accordingly the sum claimed was payable.
Held (1) that the notice to quit and the letter fell to be read together as a single document; (2) that the letter did contain sufficient information that the landlord would suffer hardship unless the notice had effect; and therefore (3) that the sum claimed was not payable.
Turton v. TurnbullELR, [1934] 2 K.B. 197,followed.
John Wedderburn Barns-Graham, proprietor of the farm of Feddinch, St Andrews, served a notice to quit on John Lament, tenant of the farm. The notice, which was sent by registered post, was in the following terms:
"26 Rutland Square,
Edinburgh, 1.
31st October 1968.
John Lament, Esq.,
Farmer,
Winthank Farm,
St Andrews,
Fife.
Dear Sir,
You are required to remove from those parts and portions of the lands and estate of Feddinch in the Parish of Cameron and County of Fife let to you in terms of the lease between John Wedderburn Barns-Graham and yourself, dated 25th November 1959, at the term of Martinmas (28th November) 1969, in terms of the said lease.
HENDERSON & JACKSON,
Agents for
John Wedderburn Barns-Graham, Landlord."
In the same envelope there was enclosed a letter in the following terms:
"26 Rutland Square,
Edinburgh, 1.
31st October 1968.
John Lament, Esq.,
Farmer,
Winthank Farm,
St Andrews,
Fife.
Dear Mr Lament,
I am sending you herewith a notice terminating your tenancy of those parts of Feddinch let to you at the term of Martinmas 1969. As you will be aware, when you offered for the tenancy in 1959, you agreed that in the event of Mr Barns-Graham or a member of his family wishing to take up farming again at Feddinch you would give up the lease notwithstanding the protection afforded to you under the Agricultural Holdings Acts. It is the intention of Mr John Barns-Graham, Mr Barns-Graham's son, who has just finished his agricultural training at Aberdeen, to take up farming and to live at Lower Feddinch, and to farm the lands of Lower Feddinch.
There are, however, included in the let to you part of the lands of Upper Feddinch, and Mr Barns-Graham has instructed us to say that he would be prepared to enter into an agreement under which you could retain the use of the lands of Upper Feddinch at present let to you, on a grazing or cropping agreement for a period of years on terms to be discussed and adjusted between you and Mr Barns-Graham in due course. His object in making this offer is to cause you the least possible inconvenience with regard to your farming plans.
You will, of course, be entitled to all the ordinary compensation available to a tenant at the expiry of an ordinary agricultural lease in respect of the whole of the lands, notwithstanding any agreement which may be made to let part of the lands of Upper Feddinch to you at a later date.
Would you be good enough to acknowledge receipt of the notice and receipt of this letter at your early convenience?
Yours faithfully,
A. D. MACEWEN."
The tenant having served a counter-notice in terms of section 25 of the Agricultural Holdings (Scotland) Act, 1949,1 the Land Court on 6th June 1969, on an application by the landlord, consented to the operation of the notice to quit on the ground that greater hardship would be caused by withholding than by giving consent.
Thereafter the tenant removed from the holding and claimed from the landlord payment of a sum to assist in the reorganisation of his affairs in terms of section 9 (1) of the Agriculture (Miscellaneous Provisions) Act, 1968.2
On 10th November 1970 the Land Court, on a joint application by the parties, made an order for payment by the landlord to the tenant of 10,800,
being four times the annual rent of the holding.3 At the request of the landlord the Court stated a special case for the opinion of the Court of SessionThe case stated the facts, of which those material to this report are set forth above, and submitted the following question of law:"Whether on the facts stated and on a proper construction of sections 9 and 11 of the Agriculture (Miscellaneous Provisions) Act, 1968, the Land Court was entitled to hold that a sum was payable by the appellant under the provisions of the said section 9?"
The case was heard before the First Divison on 11th March 1971.
At advising on 19th March 1971,
LORD PRESIDENT (Clyde).This is a special case stated by the Scottish Land Court for the opinion of the Court of Session. The question submitted to us is whether on the facts stated in the case and on a proper construction of sections 9 and 11 of the Agriculture (Miscellaneous Provisions) Act, 1968,11 the Land Court was entitled to hold that a sum was payable by the appellant under the provisions of section 9. The appellant is the owner of certain agricultural subjects and the respondent was the tenant thereof.
A number of subsidiary issues were debated before us, which arose in the legislative jungle which now surrounds questions of notices to quit. But the ultimate issues between the parties were reduced to two in number in the course of the debate, and for the sake of clarity I shall try to confine myself to the facts and the statutory provisions which are material to these two questions.
A lease of the farm and lands of Feddinch, St Andrews, was entered into between the appellant and the respondent on 25th November 1959. The lease endured until Martinmas 1969. On 31st October 1968 a notice to quit at the term of Martinmas 1969 was served. Along with the notice a letter was sent to the tenant, the terms of which I shall refer to hereafter. The two documents were dated the same day and enclosed in a single registered envelope addressed to the tenant.
The tenant served a counter-notice on the landlord requiring that section 25 (1) of the Agricultural Holdings (Scotland) Act, 1949,15 should apply to the notice to quit. The landlord then applied to the Scottish Land Court for consent to the operation of the notice to quit on the ground that greater hardship would be caused by the Court withholding consent. After a hearing the Land Court consented to the operation of the notice to quit on the ground that greater hardship would be caused by withholding consent to the notice to quit than by granting it. The tenant thereafter removed from the holding.
The present question is concerned with the tenant's right to what is described in section 9 of the Agriculture (Miscellaneous Provisions) Act, 1968,16 as a sum to assist the tenant in the reorganisation of his affairs, which is payable, over and above any compensation for disturbance payable to the tenant under the Agricultural Holdings (Scotland) Act, 1949.17 Section 9 (2) of the 1968 Act18fixes the sum at four times the annual rent of the subjects, which in the present case would amount to 10,800. This is the capital sum at stake in the present case.
The generality of the application of section 9, however, is qualified in section 11. Under that latter section the circumstances in which this additional sum is not payable are set out. One of these sets of circumstances is set forth in section 11 (1) (b). The issue in this special case turns upon whether or not section 11 (1) (b)applies to the present case. The subsection applies where "the relevant notice contains a statement that the landlord will suffer hardship unless the notice has effect and, if such an application as aforesaid is made in respect of the notice, the court consent to its operation and state in the reasons for their decision that they are satisfied that greater hardship would be caused by withholding consent than by giving it."
From what I have said already it is clear that the latter part of this subsection is satisfied, and the short issue between the parties is whether or not the initial part of the subsection applies. This raises two questions...
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