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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Munro & Anor v George & Anor [2001] ScotCS 173 (29 June 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/173.html Cite as: [2001] ScotCS 173

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[1] This matter first came before me on 4 May 2001, on a motion by the respondents for recall of interim interdict pronounced against them by interlocutor of Lord McCluskey on 12 April 2001. The terms of that interdict were as follows:

In their petition, at Statement II, the petitioners aver, inter alia, that they are the heritable proprietors of the Pityoulish Estate and that they grant grazing lets for part of each year over parts of the Estate to various parties. They, furthermore, aver that in 1999 a grazing lease was granted to the first respondent for the first time. The averments then state that the first respondent grazed beasts for the period of the lease and by November 1999, after reminders, had removed the beasts from the land. The petitioners then aver that a grazing lease in similar terms was offered to and accepted by the first respondent for 2000. The averments continue to the effect that the first respondent did not remove her beasts at the termination of that grazing let despite being repeatedly requested to do so by the petitioners. This resulted in an action for removing being raised against her in Inverness Sheriff Court on 1 December 2000. In Statement III the petitioners aver that on 11 April 2000 their factor observed a tractor belonging to a third party ploughing the land which formed part of the first respondent's 2000 grazing lease. The police were alerted and the tractor driver was asked to desist from carrying out these operations. The driver claimed to be acting on the instructions of the second respondent who, it is averred by the petitioners, is an undischarged bankrupt. The petitioners go on to aver that the respondents have no right or title to undertake agricultural operations on the Estate and that they reasonably anticipate that the respondents intend to conduct further agricultural operations such as further ploughing and sowing of crops. It was on the basis of those averments that the interim interdict sought by the petitioners was granted by Lord McCluskey.

[2] Counsel for the respondents, Mr Nicol, Advocate, in moving me to recall the interim interdict, drew my attention to the fact that answers had now been lodged on behalf of the respondents in which, in Answer II, it is averred "the first respondent in virtue of S2 of the Agricultural Holdings (Scotland) Act 1991 is entitled to security of tenure as tenant of an agricultural holding. She is defending said Sheriff Court action on that basis". It is to be noted that nowhere in the answers is it averred that the second respondent has any right or title to occupy or carry on operations on any part of the Estate at the present time.

[3] Mr Nicol submitted that the effect of the interim interdict pronounced against the respondents was in reality an eviction of them. His clients' position was that the arrangements between the parties had been to the effect that the respondents were allowed to carry out activities on the fields which went beyond the written terms of the grazing let and that they were permitted to carry out those activities not just for part of the year to which the grazing let referred. They had also been allowed to occupy certain buildings. He accepted, however, that the petitioners had averred a prima facie case of wrongdoing by the respondents and that the question was then one of where the balance of convenience lay. He also conceded that the prima facie strength or otherwise of the parties' respective cases, could be regarded as a relevant factor in judging of the question of balance of convenience. He contended that there was nothing injurious to the petitioners' rights in what the respondents were alleged to be doing. The respondents had been, he claimed, ploughing and sowing on certain fields on the Estate for a number of years. The balance of convenience therefore favoured his clients and the interim interdict should be recalled.

[4] In reply Miss Coutts, Advocate, for the respondents informed me that the defences lodged, on behalf of the respondents, in the Sheriff Court action of removing made no sense at all and because of that the action had been sent to the ordinary roll in the Sheriff Court. The position of the petitioners, according to Miss Coutts, was clear. The second named respondent and his brother had been in partnership. Since 1989 they had been given certain grazing lets by the petitioners. The partnership changed to one made up of both of the present respondents. The partnership was sequestrated in or about 1999. A fresh start was made in 1999 with a grazing let being granted to the first named respondent for that year. I was referred to a letter of 7 December 1999 from the petitioners' factor seeking removal of the first respondent's stock, as the 1999 grazing let had expired. The stock, I was told, was eventually removed in response to that letter. A grazing let had been then granted to the first respondent for the year 2000. My attention was drawn by counsel for the petitioners to certain forms which required to be lodged with government departments for the purpose of obtaining agricultural subsidies and grants. In these forms the first named respondent referred to her occupation, in 1999 and 2000, of the fields in petitioners' Estate, as being on the basis of a short term let. The petitioners' themselves required to complete and submit further documents described as ICAS forms in which they stated, as the first respondent had said, that the fields in question were being let to her on a short term grazing let basis. It was important that the petitioners should not allow any alteration to the basis upon which the fields in question were occupied from that which was stated in the official forms. The Estate was a large one and the petitioners granted a significant number of grazing lets to other tenants. It was vitally important that these tenants should not be given the impression that the first respondent was being given any additional rights beyond those which would arise from a grazing let.

[5] I was satisfied, as counsel for the respondents conceded, that the petitioners had averred a prima facie case. I was also satisfied that it was a strong prima facie case. The documents placed before me (6/2 and 6/3 of process) which were signed by the factor, acting on behalf of the petitioners, indicated that as a matter of written record the relationship between the parties was limited in recent years, at least, to grazing lets, from time to time, and that the written material placed before me was contradictory of a full blown agricultural lease in terms of section 2 of the Agricultural Holdings (Scotland) Act 1991, subsisting between the parties. There was no writing produced by the respondents contradictory of that being the position. Such other documents as I was referred to, appeared to show that the first respondent accepted that any right or title she had to occupy land forming part of the Estate depended on a grazing let. It was odd, indeed, and in my judgement, something calling for explanation, that the first respondent, on receipt of the documents 6/2 and 6/3 of process had never demurred at their terms, if the true position was that she had the benefit of a full blown agricultural lease. Certainly in the absence of any such explanation I was satisfied that, on their averments, and what was said on their behalf, the respondents' position appeared prima facie to be weak. Moreover, and in any event, I considered that there was real potential damage to the petitioners if what turned out to be unlawful activity by the respondents was allowed to continue. In that situation the petitioners would have been unable to have full use and enjoyment of their land and to do with it what they wished. There might also be repercussions to them with regard to the official forms in which it had been specified that the first named respondent was in occupation of the fields, in question, simply on a short term grazing let basis. Damages to compensate the petitioners for these matters would, in my opinion, be difficult to quantify. I accepted, however, that if the respondents' position was ultimately vindicated, assessment of damages in that situation might also be a matter of some difficulty, but I considered that it would, perhaps, be less difficult than in the case of the petitioners' position being vindicated. In any event, as Miss Coutts, for the petitioners pointed out the second named respondent is, apparently, an undischarged bankrupt (Mr Nicol did not deny that this was the case) and there was no suggestion that the first named respondent is a person of significant means. The petitioners, on the other hand, are the owners of a substantial estate and should be well able to pay any damages that may be found ultimately due to the respondents. I was entirely satisfied that, having regard to the foregoing facts, the balance of convenience lay with the petitioners and that the interim interdict should not be recalled. I accordingly refused the respondents' motion.

[6] On 16 May 2001 Lord Philip, on the unopposed motion of the respondents, sisted the cause to enable the respondents to apply for legal aid.

[7] The matter then came before me, once again, on 22 May 2001 on the opposed motion of the petitioners to recall the sist, to allow a minute of amendment to be received, and for a further interim interdict to be pronounced against the respondents from continuing grazing cattle on specified fields on the petitioners' Estate and from introducing beasts onto fields on the Estate.

[8] Mr Nicol, once more, appeared for the respondents. He, in the first place, opposed the motion to recall the sist. He submitted that for the fresh motion for interdict to be entertained there had to be apprehension of wrongful actings which it was necessary to restrain. He asserted that there was no such immediate apprehension in the present case. He made reference to certain "licences" which he said had been granted on behalf of the petitioners, by their factor, to the respondents allowing them to bring their cattle onto fields on the Estate. In reply Mr Bell, Advocate, who appeared for the petitioners, on this occasion, submitted that the averments in the minute of amendment set out a case of new and continuing actings by the respondents on the petitioners' land which they had no right or title to perform. The averments in question were as follows.

Mr Bell submitted that there was no continuing relationship between the petitioners and either of the respondents which entitled the respondents to carry out any activities on the petitioners' land. The petitioners denied the existence of any "licences" referred to by Mr Nicol. What the respondents were trying to do, by the activities referred to in the Minute of Amendment, and by the existing averments in their pleadings, was to assert, or set up, an agricultural lease to which the respondents had never assented. The petitioners were reasonably apprehensive, in the circumstances, that the respondents would continue to act for that purpose, by seeking to carry out activities on the petitioners' land which they had no right or title to do. For these reasons, and for those given at the previous hearing for recall of interim interdict, the balance of convenience favoured the granting of the additional interdict in the terms sought.

[9] In reply Mr Nicol said that he was not in a position to produce to the Court the "licences" referred to by him. He submitted that the interdict which was being sought was an attempt to restrain by negative order positive acts which the law did not consider was a legitimate basis for granting interdict. He furthermore submitted that the position with regard to balance of convenience was different from that which had obtained in relation to the interdict already granted against ploughing and sowing by the respondents. He then referred to certain activities which the respondents alleged they had been allowed to carry out in 1999 and 2000 which he said were not referable to grazing lets. He referred to No.6/2 and 6/3 of process but contended that these documents were inconsistent with what had actually happened in respect of what the respondents did on the petitioners' Estate and were allowed to do on the petitioners' land. The petitioners' factor Captain McGregor had allowed the respondents to carry out certain activities on certain fields on the Estate which were not referred to in the written documents regulating the petitioners' respective rights. Mr Nicol accepted that the first respondent had apparently accepted the written statement of her rights as set out in the documents without demur.

[10] In addressing, specifically, the question of balance of convenience, Mr Nicol said that the first respondent's cattle had been wintered on third parties' premises. The arrangements for wintering had expired. The respondents were presently under pressure by the third parties to have the stock removed from the third parties' premises. There was available to the respondents no other place to raise their stock. If they could not bring the stock on to the petitioners' land the stock would probably require to be slaughtered. Mr Nicol was not, however, in a position to state that the respondents had in fact explored any other possibility in that regard. Counsel for the respondents submitted it would be difficult to quantify the respondents' loss if they were forced to have their stock slaughtered. He made some mention also of possible difficulties being encountered by the respondents in moving their stock, standing the existing foot and mouth crisis, and the controls in place with regard to movement of livestock. He was, however, unable to go further, as I had him noted, than merely to raise this as a possible difficulty.

[11] In reply Mr Bell emphasised that Mr Nicol had been unable to assert that it was impossible for the respondents to transfer their cattle to other land other than that belonging to the petitioners and to obtain alternative grazing lets. The fact that Mr Nicol, indeed, referred to the respondents' continuing need to place cattle on the petitioners' land, because of the termination of their wintering arrangements, only increased the petitioners' reasonable apprehension that the wrongful actings would continue in the future. He emphasised that the petitioners were clearly in a position to pay any damages which might be payable to the respondents in the event of the respondents' position being ultimately vindicated. The same could not be said of the respondents if the reverse was ultimately found to be the position. Further reference was made to the IACS forms which had been submitted to the Executive which were clearly inconsistent with the respondents being allowed to continue to carry out the activities in question.

[12] I was satisfied that, in the circumstances, the sist should be recalled and that the minute of amendment should be allowed. I was also satisfied that the motion for interim interdict, as amended, should be granted. It appeared to me that the respondents' activities referred to in the minute of amendment were prima facie not activities which they were entitled to continue, on the basis of the relationship which apparently existed between them as evidenced by the documents placed before me and which was on the restricted basis set out in those documents. I was not given any explanation as to why those documents were accepted by the first respondent without apparent demur, if in fact, her rights over the petitioners' land were more extensive. I did not agree with Mr Nicol that what the interdict was seeking to achieve was restraint by negative order of a positive act. What was being sought by the application for interim interdict was the discontinuance of continuing wrongful acts and the prevention of further such acts in the future. I, furthermore, considered that, for the reasons advanced on behalf of the petitioners, on the previous occasion when the matter was before me, and renewed and added to, before me on this subsequent occasion, the balance of convenience favoured the petitioners and that the interim interdict sought should be pronounced. I acceded to the respondents' motion thereafter to sist the cause of new.