Scottish Court of Session Decisions

Alexander Clyne, tenant of the farm of Weydale Mains, Thurso, belonging to Sir J. G. T. Sinclair, Bart., under a minute of agreement or lease of said farm for nineteen years from Whitsunday 1879, dated 27th December 1878, died on 13th June 1885. After his death his estates were sequestrated, and William Gordon Oliver, farmer, Sibmister, was elected trustee. Mr Oliver carried on the farm till Whitsunday 1887, when he removed from it, and it was let to a new tenant.

Before removing, Mr Oliver, on 8th January 1877, gave notice to Sir J. G. T. Sinclair of a claim for compensation for improvements as required by section 7 of the Agricultural Holdings (Scotland) Act 1883. The claim amounted to £515, and consisted of seven heads, of which the first two were for buildings, the next three for drainage, and the last two for feeding stuffs and manure. These three classes corresponded to the three classes specified in Parts I., II., and III. respectively of the Schedule to the Act. Sir J. G. T. Sinclair on 28th May 1887 intimated a counter claim of £422, 12s. 5d.

On 2d July 1887 Mr Oliver, in terms of sec. 9, sub-secs. 3 and 5, of the Act, appointed George Brown, farmer, Watten, as his referee, and requested Sir J. G. T. Sinclair to appoint another referee.

Accordingly on 8th July Sir J. G. T. Sinclair appointed James Barnetson, farmer, Ulbster, as his referee, but limited his appointment to the consideration of the last two heads of Oliver's claim, on the ground that the claim made in the first five heads was incompetent under the statute for the reasons stated below.

Considering this limited appointment as equivalent to a failure to name a referee, Oliver applied to the Sheriff-Substitute at Wick, under sec. 9, sub-sec. 6, of the Act, to appoint a referee to act for Sir J. G. T. Sinclair, and the Sheriff-Substitute appointed Alexander R. Scott, farmer, Noss.

The provisions of the Act material to the case are as follows:—

Section 2. “Compensation under this Act shall not be payable in respect of improvements executed before the commencement of this Act, with these exceptions, namely, … (2) Where a tenant has executed an improvement mentioned in the first or second part of this schedule within ten years previous to the commencement of this Act, and he is not entitled under any contract or custom to compensation in respect of such improvement, and the landlord, within one year after the commencement of this Act, declares in writing his consent to the making of the improvement.” …

Section 3. “Compensation under this Act shall not be payable in respect of any improvement specified in the first part of the schedule hereto

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[viz., building improvements], and executed after the commencement of this Act, unless the landlord … has previously to the execution of the improvements, and after the passing of this Act, consented in writing to the execution of such improvement.” …

Section 4. “Compensation under this Act shall not be payable in respect of any improvement specified in the second part of the schedule hereto [viz., drainage improvements], and executed after the commencement of this Act, unless the tenant has, not more than three months and not less than two months before beginning to execute such improvement, given to the landlord … notice in writing of his intention so to do.” …

Section 7. “Notwithstanding anything in this Act, a tenant shall not be entitled to compensation under this Act unless four months at least before the determination of the tenancy he gives notice in writing to the landlord of his intention to make a claim for compensation under this Act. When the tenant gives such a notice, the landlord may, before the determination of the tenancy, or within fourteen days thereafter, give a counter notice in writing to the tenant of his intention to make a claim for compensation under this Act. Every such notice and counter notice shall state, as far as reasonably may be, the particulars and amount of the intended claim.”

Section 9. “Where there is a reference under this Act, a single referee, or two referees and an oversman, shall be appointed as follows:—… (6) If for seven days after notice by one party to the other to appoint a referee, or failing a referee appointed, another referee, the other party fails to do so, then, on the application of the party giving notice, the Sheriff shall, within fourteen days, appoint a competent and impartial person to be a referee.”

Section 20. “Where the sum claimed for compensation exceeds one hundred pounds, either party may, within seven days after delivery of the award, appeal against it to the Sheriff on all or any of the following grounds:—(1) That the award is invalid; (2) that the award proceeds wholly or in part upon an improper application of, or upon the omission properly to apply, the special provisions of sections 3, 4, or 5 of this Act; (3) that compensation has been awarded for improvements, acts, or things, or for breaches of stipulations or agreements, or for committing or permitting deterioration in respect of which the party claiming was not entitled to compensation; (4) that compensation has not been awarded for improvements, acts, or things, or for breaches of stipulations or agreements, or for committing or permitting deterioration in respect of which the party claiming was entitled to compensation.… The decision of the Sheriff on appeal shall be final.”

Sir J. G. T. Sinclair presented this note of suspension and interdict against Oliver and the referees Brown and Scott to prevent the reference being proceeded with.

The complainer averred—“Under the said minute of agreement or lease, and an additional agreement appended thereto, dated 13th October 1882, certain improvements were made on the said farm. These were almost entirely executed before the passing of the Agricultural Holdings Act, and all in virtue of special stipulations in the said agreement or lease and additional agreement. The complainer implemented the whole obligations undertaken by him under the said agreement or lease.… The improvements included in the said five items of claim were executed mainly in implement of the obligations contained in said minute of agreement or lease and additional agreement, and they all fall under the first and second parts of the schedule to the said Act. In so far as they were executed before the commencement of the said Act, the landlord, within one year after the commencement of the Act, has not declared in writing his consent to the making of the improvements in terms of section 2 of said Act. And in so far as such of them as are specified in the first part of said schedule and were executed after the commencement of the said Act, they were so executed without the landlord or his agent duly authorised in that behalf having previously to the execution of the improvements and after the passing of the said Act, consented in writing to the execution of such improvements, in terms of section 3 of the said Act; and in so far as such of them as are specified in the second part of said schedule, and were executed after the commencement of the said Act, no notice in writing was given by the tenant to the landlord, or his duly authorised agent, of his intention to execute such improvements; and no agreement between the landlord and tenant was ever entered into regarding the same in terms of section 4 of said Act.”

The respondent replied—“… The improvements included in the first five items of the claim, so far as not provided for by the agreements referred to, were carried out by the deceased Alexander Clyne in consequence of communications between him and Mr Logan, the factor for the respondent. After the death of the said Alexander Clyne, the documents in his possession bearing on said improvements, and including the accounts and vouchers connected therewith, were all taken away by the deceased's brother, David Clyne, by whom they were handed to the said Mr Logan. The respondent has had no means of obtaining from him the documents necessary for establishing the said claim, but intended to recover the same in the course of the reference. In these circumstances the respondent is not able to say whether the written consents and notices required by the Act in reference to claims under Schedules I. and II. were or were not given, hut he considered it to be his duty to keep the matter open by including the said items in his claim.”

The Lord Ordinary on the Bills ( Trayner) granted interim interdict, and appointed answers to be lodged, which having been done he recalled the interim interdict formerly granted, and refused the note, &c.

“ Note.—The respondent has made a claim against the complainer under the Agricultural Holdings (Scotland) Act 1883, and the complainer has intimated a counter claim. As parties could not agree upon their respective claims the respondent appointed a referee, and called on the complainer to appoint another, who should, in terms of the Act, determine what, if anything, was due under the said claims or either of them. The complainer appointed a referee, but excluded from the reference several of the heads of the claim maintained by the respondent. The latter thereupon applied to the Sheriff to appoint a

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referee on behalf of the complainer, on the ground that the complainer had not himself made an appointment as craved. The purpose of the present note is to have the referees interdicted from proceeding with the reference, on the ground that the respondent's claim (to the extent referred to) does not fall within the statute. I am of opinion that I cannot entertain the present complaint. It is the duty of the referees to determine how far either of the claims can be given effect to, and they will do so after having heard parties, and taken such evidence as they may deem necessary or proper. If they go wrong in their decision by allowing claims not warranted by the statute or otherwise, the complainer can appeal to the Sheriff, whose judgment on such an appeal will be final. The present complaint is really an attempt to obtain a decision in the Bill Chamber or Court of Session upon one of the questions which the statute has remitted to the Sheriff for decision, and which therefore should be decided only by the Sheriff.”

The complainer reclaimed, and argued—The Court of Session had the supervision of all inferior courts so as to keep them within their proper jurisdiction. The Court was here asked to stop what was clearly illegal. This arbitration should not be allowed to go on where statutory requirements had not been complied with. It was not a question of interfering with arbiters proceeding with a reference. The question was whether there was any valid reference here to proceed with. The argument on the other side, founded on the 20th section of the Agricultural Holdings Act, that this was an incompetent form of process, was irrelevant. That section provided for appeals from arbiters who had issued an award in a competent reference under the Act; and as it only made an appeal to the Sheriff competent if the sum claimed was above £100, then if this form of process was incompetent, any number of irrelevant claims might go to arbitration without the possibility of either challenge or appeal. The application here was out with the statute, and was presented to prevent irregular and incompetent proceedings being taken— Lord Advocate v. The Police Commissioners of Perth, &c., December 7, 1869, 8 Macph. 241, and Hunter v. Barron's Trustees, May 13, 1886, 13 JR. 883.

Argued for the respondents—This form of process was incompetent because the only mode of review was by appeal to the Sheriff under sec. 20 in cases of claims over £100, and the Sheriff's judgment was final. Even if competent, the Court would not exercise its discretion by way of interdicting ab ante the arbiters from proceeding with the reference, from a fear that they might neglect their statutory duties, and admit incompetent claims. It was for the arbiters to decide upon the competency of the claims, and after their decision an appeal could be taken as provided by the Act.

At advising—