Prosper Properties Limited V. Robert Bell
| Jurisdiction | Scotland |
| Judge | Sheriff K.A. Ross |
| Court | Sheriff Court |
| Date | 26 March 2008 |
| Docket Number | A520/04 |
| Published date | 02 April 2008 |
DUMFRIES SHERIFF COURT
JUDGMENT
of
SHERIFF KENNETH A ROSS
in causa
PROSPER PROPERTIES LTD
against
ROBERT BELL
A520/04
Act: Joughin, instructed by John Henderson & Sons, Dumfries
Alt: Nicoll and Govier, instructed by Drummond Miller W.S., Edinburgh
A520/04 Prosper Properties Ltd v Robert BellDUMFRIES: 26 March 2008
The Sheriff, having resumed consideration of the cause, Finds in Fact:-
The Parties
1. The pursuers in this action are Prosper Properties Ltd ("Prosper") and have their registered office at the Estate Office, Inkersall Farm, Bilsthorpe, Newark.
2. The principal shareholder of Prosper is Michael Woodcock ("Mr. Woodcock"). He is also the principal shareholder of Inkersall Investments Ltd ("Inkersall") which shares a registered office with Prosper. Mr. Woodcock is a director of both Prosper and Inkersall. He is also a director and shareholder of several other companies which, together with Prosper and Inkersall, are run from offices in Bilsthorpe and Mansfield. These include Challenge Ltd, University Associates International Ltd, J E Wright Home Heating Services Ltd and Wright Clenton Ltd.
3. The company secretary of both Prosper and Inkersall is Candida Richards ("Ms Richards"). Generally, she seeks Mr. Woodcock's approval or agreement before committing either company to any agreement or contract.
4. Prosper and Inkersall (together referred to as "the pursuers") sometimes trade under the name of "The Rigg Estate" when dealing with the land which they own. Prosper has a bank account with the Bank of Scotland, South Gyle, Edinburgh which it has arranged should accept cheques payable both to Prosper and to the Rigg Estate. Payments due to Inkersall are on occasions made out to The Rigg Estate and paid into that account. Ms. Richards reconciles such payments in the books of the two companies and transfers money between them as required.
5. The defender is Robert Bell ("Mr. Bell") who formerly resided at Rigg House, Kirkconnel, Dumfriesshire and now resides at The Steading, Munnock, Ayrshire. He is of farming stock and been involved in farming all his life. In the 1990s he farmed in Cumbria in partnership with members of his family. In 1998 he was declared bankrupt. He was unable to continue farming. Some time before this he had separated from his wife. In about 1998 he was convicted of animal welfare offences and banned from keeping animals for a period of three years. For a period in 1998 and 1999 he worked as a taxi driver. In about 1998 he formed a relationship with Mrs Cynthia Gregg. That year they moved to Kirkconnel where, initially, they took the tenancy of a local authority house. Mr. Bell and Mrs Gregg started a business as landscape gardeners under the name "Four Seasons". Mr. Bell also did casual fencing and other work. He continued to drive taxis at weekends.
Purchase of the Rigg Estate by Prosper and Inkersall
6. In 1997 Prosper, Inkersall and Mr. Woodcock together purchased the Rigg Farm and Nethercairn Farm, both at Kirkconnel, Dumfriesshire. The area purchased is shown delineated in black on the plan 5/10 on which the various fields have enclosure numbers shown.
7. Inkersall purchased Rigg Farm which has the Title Numbers DMF1475 and DMF1014. The Title Certificates are Productions Nos. 5/164 and 5/165. The area purchased is shown lying generally to the east of the thick black line shown on the plan 5/10 and includes Rigg Farmhouse, Rigg Cottage, Crockroy, the former Mine Buildings, the Engineering Shed and enclosure or field numbers 1 to 11, 11A, 12 to 28 and 33 to 39.
8. Prosper purchased Nethercairn Farm which has a Title Number DMF1474. The Title Certificate is 5/163. The area purchased is shown lying generally to the west of the thick black line shown on the plan 5/10 and includes Nethercairn Farmhouse and buildings and enclosure or field numbers 29 to 32, 34 and 40 to 50.
9. Mr. Woodcock purchased enclosure or field number 27A which is also shown on the plan 5/10. Enclosure 27A is a small area of woodland.
10. The areas purchased by Prosper and Inkersall consisted of agricultural land on which were situated some houses and agricultural buildings. Part of the land had previously been mined on an opencast basis. That land had then been restored and returned to agricultural use. At the time of purchase, Rigg Cottage was occupied rent free by a Mr. and Mrs Barbour and Nethercairn Farmhouse was occupied by a Mr. Stewart who had been employed by the previous proprietors as a shepherd.
11. The Estate was generally run down with several buildings in need of repair, including re-roofing, and several of the internal fences in a poor condition.
12. The areas owned by Prosper and Inkersall are sometimes referred to as "the Rigg Estate". Correspondence from Prosper in relation to properties owned by Prosper is generally on Prosper notepaper. Correspondence by Inkersall in relation to properties owned by Inkersall is generally on Inkersall notepaper. Correspondence by either in relation to the whole subjects is generally on Rigg Estate notepaper but any of such notepaper may be used, from time to time, in relation to any of these separate subjects.
13. In purchasing the Rigg Estate the pursuers' intention was to develop them. They intended to plant new woodlands and to renovate existing housing stock and convert other buildings, all with a view to letting these as houses on short assured tenancies or as commercial units. They intended to extract opencast coal. Any remaining land they intended to let, principally on annual grazing licences.
14. Mr. Woodcock owns three other estates in the north of Scotland which are of a broadly similar character to the Rigg Estate. Apart from opencast coalmining he has developed these estates in a similar way to that intended for the Rigg Estate. Some of the land on these estates is subject to tenancies which are agricultural holdings in terms of the Agricultural Holdings (Scotland) Act 1991 ("the 1991 Act") and which were in existence when he purchased these estates. Since purchase, one such tenancy has ended. That land, and the land on these estates which is not subject to agricultural tenancies, has been let on annual grazing licences. On occasions Mr. Woodcock has entered into limited partnership agreements with tenants and let land to such a partnership as an agricultural holding in terms of the 1991 Act. He had never previously let land in Scotland as an agricultural holding to an individual person as a tenant.
15. After the purchase of the Rigg Estate, Inkersall let Rigg Cottage to Mr. and Mrs Barbour on a Short Assured Tenancy ("SAT") and granted them the let of an adjoining field (field number 12) on a grazing licence. Prosper let Nethercairn farmhouse to Mr. Stewart on an SAT and entered into a limited partnership agreement with him for the farming of some of the land. Various fields were let to that partnership as an agricultural holding in terms of the 1991 Act. Most of the remaining areas of land were let on short term grazing licences to local farmers. Some of the cattle courts were let for the wintering of cattle. Rigg Villa was let on an SAT. The pursuers began negotiations to gain planning and building permissions and housing grants to develop agricultural buildings as houses. They entered into negotiations and initiated discussions with a view to the extraction of coal on parts of the land owned by both Prosper and Inkersall and for the planting of forestry in fields owned by both Prosper and Inkersall. By 1 May 2002 fields 20, 22, and 24 to 27 had been planted with forestry.
16. When the Rigg Estate was purchased neither Mr Woodcock nor the pursuers intended to let any part of it as an agricultural holding in terms of the 1991 Act to any individual person as a tenant.
The pursuers' early dealings with Mr. Bell
17. In late 1998 Mr. Bell telephoned Mr. Woodcock. He and Cynthia Gregg subsequently met him at the pursuers' office in Bilsthorpe. He explained that he had been a farmer but had experienced financial difficulties. He did not tell Mr Woodcock that he had been made bankrupt. Nor did he tell him about his livestock ban. He requested that the pursuers let a small area on the Rigg to his partner Cynthia Gregg so that she could graze some sheep. He indicated that he would be willing and able to assist with tasks on the Estate.
18. The pursuers agreed to give Mrs Gregg a grazing licence of fields 23, 24 and 25 running from 1 December 1998 to 28 February 1999. The pursuers subsequently let other land to Mrs Gregg on grazing licences. During the course of the grazing licences Mrs Gregg asked the pursuers if she could rent a couple of buildings in connection with the Four Seasons gardening and landscaping business in partnership with Mr. Bell. This was agreed and Inkersall granted Mrs Gregg a lease of the small stable at the Rigg from 14 June 1999 to 30 June 2000.
19. Until about September 1999 Mr. Bell and Mrs Gregg had been living in the local authority house in Kirkconnel. When Rigg Villa became vacant Inkersall granted Mr. Bell and Mrs Gregg an SAT of Rigg Villa from 10 September 1999 to 9 September 2000.
20. During the period 1998 to 2000 Mr. Bell carried out work for the pursuers, either on his own account or through Four Seasons Ground Maintenance. Such work included fencing and other maintenance work. Invoices were rendered to the pursuers for that work and paid by the pursuers. He assisted in locating a machine to prepare ground for forestry planting. He operated that machine to prepare the ground and did not charge Mr Woodcock for the work. He assisted the pursuers by finding grazing tenants and was paid commission for so doing. He acted in other ways as an agent for the pursuers. He advertised some property to let on their behalf, assisted with finding tenants, assisted with arranging some repairs, arranged for tenants to sign leases, dealt with tenants of houses, commercial properties and grazing licences on...
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