Moors the Pity: The Case of the Missing Grouse Cramaso LLP v Ogilvie-Grant, Earl of Seafield and others
| Author | Laura Macgregor |
| Date | 01 January 2015 |
| Published date | 01 January 2015 |
| Pages | 112-119 |
| DOI | 10.3366/elr.2015.0254 |
Grouse shooting in Scotland is not only a popular sporting pursuit: according to a recent commentator the industry is worth £32 million annually to the Scottish economy.
L MacDonald, “Second class citizens”, Scottish Field, Sept 2014, 30.
Conservationists and landowners are, however, divided on the impact on the environment and the need for regulation.For different perspectives see MacDonald (n 1);
Making money from grouse shooting is, it seems, no easy matter. Grouse are susceptible to louping ill virus. This disease, spread by ticks, can decimate the grouse population. Flocks of sheep whose coats are chemically treated with a substance fatal to ticks can be introduced. The population of both deer and hares, hosts for ticks, must be closely managed. Given the high degree of management involved, it is not surprising that landowners rent out moorland to tenants with special expertise in management of grouse moors. Leases can be long, given the time it takes to build up the population of grouse.
This case involved one such lease of moorland at Castle Grant, near Grantown-on-Spey. The lease was granted in favour of the appellants, Cramaso LLP, for 15 years with effect from 1 January 2007. In the period before signature of the lease, discussions had taken place between employees of the respondents and Mr Erskine, the person behind Cramaso. There were clearly concerns that the moor had been overshot in previous years. Mr Lewis, the chief executive of the trust, composed an email with details of his calculations of the number of grouse on the moorland. This email was shown to Mr Erskine, who then consulted his solicitors. They advised him to form a limited liability partnership to enter into the lease. After the lease had been signed it transpired that the projections in Mr Lewis's email as to the grouse population were inaccurate. Cramaso raised an action for fraudulent, which failing, negligent misrepresentation, and damages.
The difficult legal issue is probably already apparent to the reader. Whereas the representation had been made to an individual, it was acted upon by an LLP. Did the LLP have a right of action for an operative misrepresentation?
The possible reasons for the alleged overstatement of the grouse population emerge from Lord Hodge's summary of the evidence in the Outer House.
Lord Hodge found that there had been a material misrepresentation.
Para 92.
Mr Lewis had acted honestly in compiling the email and was not therefore fraudulent.Para 98.
Para 110.
Para 116.
Using a Hohfeldian analysis, there must exist at the time of the representation the person (or class of persons) to whom that duty is owed and who therefore has the correlative rights.
He continued:
Para 118.
The requirement that the plaintiff and the identifiable class should exist at the time of the making of the representation is consistent with the principle that the duty of care must exist at that time, as the duty must be owed to someone.
Paras 118 and 119.
The appeal was heard in the Second Division before the Lord Justice Clerk, Lord Hardie and Lord Marnoch. The opinion of the court reveals a focus on the issue of whether a duty of care can be owed to a class where the members of that class are not yet in existence at the time of the allegedly negligent misrepresentation. Counsel for the defenders had argued:
[2011] CSIH 81, 2012 SC 240 at para 8.
… if perceived...
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