Thomas Telfer V. The Buccleuch Estates Limited
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Brodie,Lord Malcolm |
| Neutral Citation | [2013] CSIH 47 |
| Court | Court of Session |
| Published date | 31 May 2013 |
| Year | 2013 |
| Docket Number | XA89/12 |
| Date | 31 May 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Menzies Lord Brodie Lord Malcolm | [2013] CSIH 47 XA89/12 OPINION OF LORD MENZIES in the appeal by THOMAS GORDON TELFER Appellant; against THE BUCCLEUCH ESTATES LIMITED Respondents: _______________ |
Respondents: Sir Crispin Agnew, QC; Anderson Strathern
31 May 2013
[1] I have had the advantage of reading and considering in draft the Opinion of Lord Brodie, and I am in complete agreement with the views expressed therein.
[2] For the avoidance of doubt, I agree that the argument which the appellant sought to advance before us based on the principle of unity of contract must be refused because the grounds of appeal contain no hint of such an argument. On the second day of the hearing before us the appellant sought to amend his grounds of appeal to introduce a fifth ground, founded on the principle of unity of contract. This motion was opposed on behalf of the respondents on several grounds, including that the issue of who was responsible for the state of the Duntercleuch fence in 2007 was not explored at the proof before the Land Court, that the issue was a pure question of law which could have been raised earlier in the proceedings but was not, that the respondents had been given no notice of such a line of argument and had not addressed it, and that the attempt to introduce it came far too late. Essentially for the reasons advanced on behalf of the respondents the court refused the appellant's motion. The argument which he sought to introduce was not free from difficulty, and we considered that it would not be fair to the respondents to allow it to be advanced at such a late stage, without prior notice having been given to them.
[3] I agree that ground of appeal 3 falls to be refused for the reasons explained by Lord Brodie. The Land Court made findings of primary facts which entitled it to draw the conclusion which it reached that the Duntercleuch fence was a separate item. It cannot be argued that there was a material legal flaw in their approach. I would answer the third question raised by the appellant in the grounds of appeal in the negative. I too consider that the approach of the Land Court in considering individual items of fixed equipment rather than looking at the equipment as a whole was correct, and I would answer the fourth question in the negative.
[4] For the reasons given by Lord Brodie, I would answer the first and second questions in the affirmative. It does not appear to me that the distinction between "renewal" and "replacement" in this context is the material issue. The Duntercleuch fence was a readily understood item of fixed equipment as at the date of the PLA in 1971, and remained a readily understood item of fixed equipment as at the date of the appellant's notice in October 2007. It performed (or was intended to perform) the same function at both these dates; it forms the match with the farm of Clenries in the Duntercleuch valley. Whether the whole of the Duntercleuch fence was renewed between 1971 and 2007, or whether parts of it were renewed, or a number of stobs or strainers or wires were replaced (and if so, how many) appears to me to be beside the point. The point is that the Duntercleuch fence was understood and identifiable and was intended to perform the same function at both dates. In these circumstances the exercise of comparison required by section 5(4B)(b)(ii) must be carried out.
[5] I confess that I have had more difficulty with the issue of competency than your Lordships, and I found Sir Crispin's submissions on this point initially attractive. Section 88 of the 2003 Act provides inter alia that any party to a matter determined by the Land Court by virtue of the 1991 Act or the 2003 Act may appeal against the determination on a question of law within 28 days of the determination. The legal issues which are raised by the appellant in the present grounds of appeal as to the proper construction of the new provisions added to section 5 of the 1991 Act by section 60 of the 2003 Act were the subject of debate before the Land Court in 2009 and 2010, and the Land Court determined these issues in its orders dated 6 May 2009 and 3 November 2010. The appellant did not appeal against these determinations within 28 days of them, but instead allowed the dispute to proceed to a proof lasting in total 9 days in January and February 2012. It followed, Sir Crispin submitted, that the Land Court's determinations as to these legal issues could not now be competently appealed.
[6] The Land Court itself was clearly aware of the terms of section 88 of the 2003 Act, and of the possibility that an appeal might be taken against its construction of the new statutory provisions. At paragraph [143] of the court's Note attached to the order dated 6 May 2009 it stated as follows:
"Decision
[143] Counsel invited us to have in mind the decision of the Inner House on 3 February 2009 in the appeal in SLC/119/07. The court decided that an appeal could not proceed where it could not identify any determination or definitive decision in the Land Court's note. It will be for the Appellate Court considering its own jurisdiction to decide what type or types of findings are properly to be regarded as 'determinations' within the meaning of section 88. We, accordingly, avoid use of that word. However, we consider it appropriate to make the following findings based on the foregoing discussion. Our intention in making these findings is to express a concluded view on certain matters of law for the purposes of litigation between the present parties. It may be, of course, that other expressions of view in the Discussion above should also properly be regarded as 'determinations' for the purposes of section 88. We make the following explicit findings purely for the avoidance of doubt".
[7] In the Note attached to the order dated 3 November 2010 the Land Court preceded its findings [100]-[103], which are central to the issues argued before us, with the following:
"Decision
[99] It is appropriate to summarise our answers to the four questions in more formal findings or determinations..."
[8] It seems clear from the above that the Land Court was alive to the possibility that an appeal would be taken within 28 days of each of these determinations, and had the terms of section 88 of the 2003 Act in mind. For my part, I consider that an appeal could probably have been competently taken within 28 days of each of the decisions dated 6 May 2009 and 3 November 2010. The question now comes to be whether the appellant was bound to appeal at that time, or whether he was entitled to await the outcome of the proof and appeal within 28 days of the decision following proof?
[9] On reflection, I have reached the view that it is competent for the appellant, in the circumstances of this case, to refrain from appealing the earlier decisions, but to await the outcome of the proof. (It is not disputed that the appellant appealed to this court within 28 days of the decision dated 25 April 2012). Just because it was open to the appellant to appeal against the earlier decisions within 28 days of their being made, it does not follow that he was obliged to do so. The issues which form the basis of his appeal to this court were the issues which formed the substance of the decision of 25 April 2012. As part of that decision, the Land Court decided (at paragraph [66] of its Note) that the Duntercleuch march fence was not in a reasonable state of repair on the specified date and that, as the fence as it stood on that date was a replacement fence erected in 1972, it cannot be said that it was in a worse state when the PLA was made. This was an integral part of the Land Court's decision of 25 April 2012, and the appellant is in my view entitled, by reason of section 88 of the 2003 Act, to appeal against that decision "in all its parts", to use Lord Osborne's phraseology in Harvey v McTaggart and Mickel. Having regard to that authority, I am persuaded that Sir Crispin's attack on the competency of this appeal is misconceived, and that the appeal is competently before this court.
[10] I agree that this appeal should be disposed of as proposed by Lord Brodie.
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Menzies Lord Brodie Lord Malcolm | [2013] CSIH 47 XA89/12 OPINION OF LORD BRODIE in the appeal by THOMAS GORDON TELFER Appellant; against THE BUCCLEUCH ESTATES LIMITED Respondents: _______________ |
Respondents: Sir Crispin Agnew, QC; Anderson Strathern
31 May 2013
Introduction
The parties
[11] This is an appeal to the Court of Session on a question of law against a determination by the Land Court by virtue of the Agricultural Holdings (Scotland) Act 1991. The appellant is Thomas Gordon Telfer. The respondents are The Buccleuch Estates Limited. The appeal is brought under section 88 of the Agricultural Holdings (Scotland) Act 2003. The appellant is tenant and the respondents are landlords under a lease executed on 30 November 1970 and 29 March 1971, as varied by a post-lease agreement executed on 29 March and 3 April 1971 (the "PLA"). The subjects of the lease are the lands and farm of Auchengruith (including Glenim), extending to 5149 acres, lying near Wanlockhead in the parish of Sanquhar. The subjects are illustrated in the copy plan 7/4 of process. The lease is a lease of an agricultural holding.
The issue
[12] The appeal is concerned with the re-allocation, as between the appellant, as tenant, and the respondents, as landlords, of liability for the cost of replacement or renewal of fixed equipment on the holding, by nullification of the PLA in terms of section 5(4B) of the 1991 Act.
[13] As from 1 November 1948, in terms of the Agricultural Holdings (Scotland) Act 1949 and, in particular, section 5(2)(a) of that Act, there has deemed to be incorporated in every lease for the letting of an agricultural holding an undertaking...
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