Brodie v Ker. McCallum v Macnair
| Jurisdiction | Scotland |
| Judgment Date | 26 February 1952 |
| Docket Number | No. 22. |
| Date | 26 February 1952 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION with three consulted judges.
Landlord and TenantTermination of leaseAction of removingDispute as to landlord's right to remove"Question or difference as to liability for rent"Method of settlementArbitrationAgricultural Holdings (Scotland) Act, 1949 (12, 13 and 14 Geo. VI, cap. 75), sec. 74.
The Agricultural Holdings (Scotland) Act, 1949, enacts:Sec. 74. "Save as otherwise expressly provided in this Act, any question or difference of any kind whatsoever between the landlord and the tenant of an agricultural holding arising out of the tenancy, or in connexion with the holding (not being a question or difference as to liability for rent) shall, whether such question or difference arises during the currency or on the termination of the tenancy, be determined by arbitration." Sec. 24 (3) enacts:"The provisions of the Sheriff Courts (Scotland) Act, 1907, relating to removings shallhave effect subject to the provisions of this section."
The landlord of a farm brought an action of declarator and removing in the Sheriff Court against the tenant, founding on a conventional irritancy of the farm lease for non-payment of rent. The tenant claimed to be entitled to retain the rent in respect of the landlord's alleged failure to fulfil certain obligations in relation to the farm.
The landlord of another farm brought an action of removing in the Sheriff Court against the tenant, who maintained in defence that the notice to quit served upon him was inept in respect that the landlord had failed to comply with certain statutory conditions.
Held by a Court of seven Judges (1) that the Act nowhere. "expressly provided," and, in particular, did not in sec. 24 (3) provide, that the question or difference arising in either case should be determined otherwise than by arbitration; and (2) that the question or difference arising in the first case was not one as to "liability" for rent, as the plea of retention involved an admission of liability; and each action remitted to the Sheriff-substitute with an instruction to sist, pending arbitration.
Houison-Craufurd's Trustees v. Davies, 1951 S. C. 1,approved.
Observations as to the function of the Court in determining the relevance of a claim alleged to have been remitted by the Act to the decision of an arbiter.
David James Brodie brought an action of declarator and removing against John Ker in the Sheriff Court of Inverness Moray, Nairn and Ross and Cromarty at Nairn.
The following narrative of the proceedings is taken from the opinion of the Lord Justice-Clerk:"The pursuer is proprietor and the defender is tenant of the farm of Arr in terms of a lease for fourteen years entered into in 1941. Under the lease there are three stipulations which fall to be specially noted: first, that the proprietor will repair where necessary the farmhouse and steading; second, that if the tenant shall allow at any time one half year's rent to remain unpaid for a period of three months after the same shall become due, it shall be optional to the landlord to terminate the lease; and third, a clause providing that all questions between landlord and tenant shall, failing agreement, be settled by arbitration as provided for by the Agricultural Holdings (Scotland) Acts, 1923 and 1931.
"The defender did not pay the half year's rent due at Martinmas 1949 and conventionally payable at the estate rent collection on 5th January 1950. The pursuer sent reminders in the form of rent notices, and there was some correspondence. Finally, by letter dated 26th April 1950, the pursuer purported to put the conventional irritancy into effect and to put an end to the lease. As the defender did not remove, the pursuer raised the present action for declarator of the irritancy and for removal.
"It is necessary to pay special attention to the various steps of procedure. The defences admitted the retention and sought to justify it by an averment that the pursuer had failed materially to fulfil his obligations under the lease as to necessary repairs to the farmhouse and steading and also by averments of the pursuer's failure to carry out certain undertakings which he was said to have given.
"After a number of continuations for adjustment, the record was closed on 11th July 1950, and 25th July 1950 was assigned for debate on the preliminary pleas. The defender now lodged a minute in the following terms:Macdonald for the defender informs the Court that on 31st May 1950, on the instructions of the defender, there was lodged in the joint names of the pursuer and defender on deposit-receipt the sum of eighty pounds sterling, being rent for 2nd half crop 1949 in respect of Arr Farm, that on 7th July 1950 a letter was addressed to the pursuer's agents by the defender's agents, tendering the said rent, that on 15th July 1950 the defender's agents sent to the pursuer's agents the said deposit-receipt endorsed by the defender and that the same was returned to the defender's agents on 20th July with an intimation that they (the pursuer's agents) had no instructions to accept the rent; hereby again tenders the rent and moves the Court to sist the present proceedings so that arbitration may proceed in terms of section 74 of the Agricultural Holdings (Scotland) Act, 1949, as to the pursuer's liability to carry out the repairs required by the defender as specified in the proceedings.
"On 25th July 1950 the Sheriff allowed this minute to be received and, having heard parties, made avizandum. On 31st July 1950 he pronounced the following interlocutor:The Sheriff substitute orders the pursuer to answer the minute for the defender, No. 12 of process, by 8th August 1950: orders the defender to consign in Court the sum of eighty pounds sterling tendered by defender in said minute and to lodge in process the correspondence referred to in said minute, all by said date; and continues the cause.
"On 26th September 1950 he heard a debate on the defender's minute. He held it incompetent and refused the motion to sist. So far as the arbitration point was concerned, his view was that arbitration was incompetent, there being a question of liability for rent involved. So far as the rest of the minute was concerned, his view seems to have been that the proper course to follow was to amend the record. It would appear that this course was followed and certain amendments made by the defender which were answered by the pursuer.
"No appeal was taken against the interlocutor of 26th September 1950. After the new closed record had been made up, the cause was sisted to enable the defender to apply for legal aid and it was not until 12th April 1951 that the silt was recalled and a debate took place on the preliminary pleas. At that debate four topics were considered. By interlocutor dated 6th May 1951 the Sheriff-substitute dealt with these topics and continued the cause to 22nd May 1951 to consider further procedure. On that date both parties sought and obtained leave to appeal to the Court of Session."
The case was heard before the Second Division on 15th and 16th November 1951. During the hearing counsel for the defender moved for and was granted leave to amend by adding, inter alia, the following plea:"(2) The present dispute being one which falls to be referred to arbitration in terms of section 74 of the Agricultural Holdings (Scotland) Act, 1949, et separatim in terms of clause 14 of the General Articles of Let, the action should be dismissed."1 Counsel were then heard on this plea and on the following plea added by the pursuer:"(5) The defender, having prorogated the jurisdiction of the Court, is personally barred from founding on clause 14 of the lease." Thereafter, on 16th November 1951, the Court made avizandum.
John James Gray M'Callum brought an action of removing against Alexander Macnair in the Sheriff Court of Renfrew and Argyll at Dunoon.
From the averments of parties on record it appeared that on 5th May 1949 the pursuer, who was proprietor of the farm of Stroneskar, Kilmichael-Glassary, served a notice to quit on the defender, who was tenant of the farm, calling on him to remove at Whitsunday 1950. On 11th May 1949 the defender's agents sent to the pursuer's agents a letter, the validity of which as a counter-notice for the purposes of section 7 (1) of the Agriculture (Scotland) Act, 1948, was the sole question at issue in the action.
On 4th May 1951 the Sheriff substitute (Donald) dismissed the
action.2 The pursuer appealed to the Sheriff (Philip, K.C.), who, on 23rd June 1951, recalled the interlocutor of the Sheriff-substitute and granted decree of removing.3The defender appealed to the Court of Session, and the case was heard before the Second Division on 28th and 29th November 1951. During the hearing counsel for the defender were granted leave to amend by adding a plea directed to arbitration under section 74 of the Agricultural Holdings (Scotland) Act, 1949.
On 29th November 1951 the Court made avizandum.
On 7th December 1951, when both cases were put out by order, it was intimated that they were to be appointed to be argued together before a Court of seven Judges in order that the scope of section 74 of the Agricultural Holdings (Scotland) Act, 1949 (12, 13 and 14 Geo. VI, cap. 75), might be defined. They were accordingly heard before the Judges of the Second Division, along with the Lord President, Lord Carmont and Lord Russell, on 22nd and 23rd January 1952.
At advising on 26th February 1952.
LORD JUSTICE-CLERK (Thomson).The consulted Judges, the LORD PRESIDENT, LORD CARMONT and LORD RUSSELL, have returned the following opinion.
The first of the two cases before us is one in which a landlord of an agricultural holding seeks to enforce by decree of declarator and removing a conventional irritancy for non-payment of rent, and the tenant claims to be entitled to retain the rent in respect of the landlord's alleged failure to perform certain obligations in relation...
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