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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Matheson v. The Board of Agriculture for Scotland [1916] ScotLR 120 (09 December 1916) URL: http://www.bailii.org/scot/cases/ScotCS/1916/54SLR0120.html Cite as: [1916] ScotLR 120, [1916] SLR 120 |
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Page: 120↓
Court of Seven Judges.
The Board of Agriculture for Scotland desiring to constitute small holdings on the estate of a landowner, lodged applications with the Land Court. About twenty months later, when all the necessary steps had been taken and the applications were ripe for judgment, the Board, on the ground of the change of circumstances caused by the war, moved for a sist. The Land Court sisted proceedings in the applications in hoc statu. Held, in a Court of Seven Judges ( diss. the Lord Justice-Clerk, Lord Salvesen, and Lord Skerrington), that it was competent for the Land Court to grant the sist craved.
The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) enacts—Section 25 (2)—“For the purposes of the Landholders Acts the Land Court shall have full power and jurisdiction to hear and determine all matters whether of law or fact, and no other Court shall review the orders or determinations of the Land Court: Provided that the Land Court may if they think fit, and shall on the request of any party, state a special case on any question of law arising in any proceedings pending before them, for the opinion of either Division of the Court of Session, who are hereby authorised finally to determine the same.”
In applications to the Land Court by the Board of Agriculture for Scotland, applicants, for the creation of small holdings on the estate of Lieutenant-Colonel Duncan Matheson of Lewis, respondent, the applicants on 21st March 1916 lodged the following minute in each application:—“The applicants beg to state that owing to the altered circumstances which have arisen in consequence of the war they are desirous that further consideration of these applications should be deferred meantime, and accordingly respectfully crave the Court to sist proceedings in hoc statu.” The respondent lodged answer in each application, as follows:—“Of this date (March 21st, 1916) the applicants lodged a minute craving the Court to sist proceedings in hoc statu, and thereafter the Court appointed the respondent to lodge answers to said minute. The respondent respectfully craves the Court to refuse the minute and to dispose of the application.”
On 24th March 1916 the Land Court pronounced the following order:—“The Land Court having heard the solicitor for the applicants and counsel for the respondent on the minute for the applicants and answers for the respondent, grant the crave in said minute, and sist the proceedings in hoc statu.”
The note appended to the order stated—“The Court is of opinion that these cases should stand over until the conclusion of the war. An application to that effect has been made to us by a responsible department of the Government upon grounds of expediency and economy, and that it is not proper at the present time that there should be more expenditure of public funds than necessary. In these cases, evidence has already been led, and a considerable amount of expense has been incurred, and if the Board of Agriculture were now forced to abandon any further steps of procedure on financial and public grounds that expense would be thrown away, because, as has been said, it is quite plain that in the Island of Lewis the demand for land is clamant, and in all likelihood if the schemes had to be abandoned at the present time, these schemes, or other similar schemes, would require to be taken up again after the war. If the process had to be begun de novo, that would be a waste of the public money which has already been expended upon them.
Then, again, we think we have to consider the interests of the parties who are intended to be the new holders under these schemes. As Mr Reid has pointed out, the schemes taken together involve the settlement of something like 130 families. It is quite clear that at the present time it is out of the question for a public department to proceed with such a large scheme. But then if you consider the interests of these parties themselves we think it would be a very great hardship indeed upon the prospective tenants if the department were forced to proceed with these schemes at the present time. If we decided in favour of the Board that the schemes were such as we were entitled to pass, the Board would be at once faced with the question of providing tenants for the holdings. Now it is public knowledge that for the most part those prospective tenants would not be on the spot. Most of them are engaged in their public duties either in the Naval Reserve or in the other Forces of the Crown. The probable result would be that the Board could not really face the question either as to personnel or as to expenditure in carrying out the schemes at this time.
Accordingly we think that in the very exceptional circumstances this is a proper motion for the Board of Agriculture to have made to us. We do not, of course, overlook the fact that there may be some difficulties in the administration of the estate caused by the fact of the applications having been made and now stopped, but we think that these matters could not be considered as of greater moment than the public interest, and we are of opinion that the Board have made this motion quite properly in the public interest.
With regard to the question of competency, it seems to us that this motion is perfectly competent, and we say so for this reason that it is a motion made during the
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procedure in this case, and we think it is perfectly plain from the powers contained in the Act that we have the control over our own processes. We quite agree that the circumstances are very exceptional, but we do not see that the motion is incompetent. If the proprietor thinks that the granting of this sist is incompetent, he can take his remedy either here or in some other Court. Accordingly we sist the process in hoc statu, leaving it to either of the parties to make a motion for the recal of the sist at any time when they may think it expedient to do so.”
A Case having been stated, it narrated these facts—“1. On July 22, 1914, the Board of Agriculture lodged applications with the Land Court to determine and by order or orders to declare in respect of what land, if any, specified in the schemes appended thereto one or more holdings for new holders and enlargements of existing landholders' holdings might respectively be constituted upon the farms in question, namely, the farm of Galson, the farm of Gress, the farm of Carnish and Ardroil, and the farm of Oronsay and Stimervay, all on the estate of Lieutenant-Colonel Duncan Matheson of Lewis. The scheme proposed for the farm of Galson provided for the constitution of fifty-seven new holdings on the said farm. The scheme proposed for the farm of Gress provided for the constitution of forty new holdings thereon. The scheme proposed for the farm of Carnish and Ardroil provided for the constitution of twenty new holdings and seventeen enlargements of existing landholders' holdings thereon. The scheme proposed for the farm of Oronsay and Stimervay provided for the constitution of fourteen new holdings on the farm. It was proposed by the said schemes to utilise the whole land of each of the said farms other than Carnish and Ardroil for the constitution of new holdings, and to utilise the whole land of the said farm of Carnish and Ardroil for new holdings and enlargements of existing holdings as above mentioned. On October 20, 1914, answers were lodged on behalf of the proprietor, in which it was maintained that the proposed holdings and enlargements should not be constituted. On March 22 to 26, 1915, proof was led and counsel were heard for the proprietor and the Board of Agriculture. On or about June 8, 9, and 10, 1915, the farms in question were inspected by or on behalf of the Land Court. 2. An amended plan with proposed joint minute and copy correspondence were thereafter lodged by the Board of Agriculture, and counsel were heard thereon on 11th January 1916, and the applications were continued.” 3. A proposed order in the Galson application was subsequently intimated to the Sheriff-Clerk at Stornoway, but was afterwards withdrawn.”
The following questions of law were intimated:—“1. Are the orders complained of, dated 24th March 1916, ultra vires of the Land Court in the applications in question? 2. Are the said orders complained of incompetent in respect that they are not in substance orders for the regulation of procedure, but are in substance and effect a refusal to pronounce judgment?”
The case was heard on Thursday, 19th October 1916, by the Second Division, and was there after appointed to be argued before a Court of Seven Judges.
The respondent argued—At the time at which the Land Court sisted the cause every step of procedure had been exhausted except that of pronouncing judgment, and delay in doing so constituted a flagrant injusi ice to the proprietor, as the sist could only be regarded as an order for the convenience and expediency of the Board of Agriculture. The scheme was not in the public interest if it was found inexpedient to proceed with it, there being no demand for land, as all likely applicants were absent on military service. The delay in pronouncing judgment amounted to a refusal to pro nounce judgment for an indefinite period. As the war might last for a very long time it was incompetent to postpone the decision of the case until peace should have been concluded. The Court of Session had a common law right of mandamus over the Land Court, and could order the latter to take action— Forbes v. Underwood, 1886, 13 R. 465, per Lord President Inglis at p. 467, 23 S.L.R. 324. Delay could only be granted for certain legitimate purposes— Scott Plummer v. Board of Agriculture, 1914 S.C. 1, per Lord Johnston at p. 3, 51 S.L.R. 26. Section 7 (11) ( a)) of the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), along with sub-section 13, regulated the procedure of the Land Court in the formation of small holdings. In the present case there were particular reasons for the Land Court to proceed summarily owing to the hardship which would otherwise be caused, and in a summary process there was a presumption against a court being permitted to sist indefinitely—Summary Jurisdiction (Scotland) Act 1908 (8 Geo. V, cap. 65), secs. 21, 32 (2) and (6). Even when a right of appeal was very rigorously fenced the Court of Session, having the power to intervene, had a remedy to offer—Mackay's Manual, p. 93; M'Laren's Practice, p. 119. Other cases cited were— Heritors of Corstorphine v. Ramsay, F.C., March 10, 1812; Presbytery of Caithness, 1773, M. 7449; Dalgleish v. Leitch, 1889, 2 Wh. 302, per Lord Kyllachy.
The applicants argued—This Special Case was incompetent, and the Court of Session having no jurisdiction on this question had no power to entertain it. The only competent question of law was as to the rights of parties inter se, and the present case dealt with the inherent powers of the Land Court. The finality clauses of the Crofters' Holdings Act 1886 (49 and 50 Vict. cap. 29), sec. 25, and of the Small Landholders (Scotland) Act 1911, sec. 25 (2), differed. On the construction put by the Courts on the finality of decisions of the Crofters Commissioners, counsel cited Cameron v. Duke of Argyll, 1888, 16 R. 139, 26 S.L.R. 96; Dalgleish v. Livingston, 1895, 22 R. 646, per Lord Rutherfurd Clark at p. 658, 32 S.L.R. 347; and Sitwell v. M'Leod, 1 F. 950, per Lord President Robertson at p.
Page: 122↓
955 et seq., 36 S.L.R. 762. The Land Court being a court of law was different from the Crofters Commission, and having the power to grant a sist, this particular sist was absolutely intra vires of the Court, especially as it was not in the public interest that judgment should have been pronounced at the present time. It was lawful for the Land Court from time to time to make rules for the conduct of its business, and these were to be found in sections 39, 106, and 120 of the Land Court Regulations—Johnston on the Small Landholders Act on p. 227 et seq. The Crofters Commission and the Land Court were empowered by section 6 (4) of the Crofters' Holdings Act to sist proceedings for removal. The Land Court had to keep the public interest in view in deciding whether to erect small holdings or not. At advising—
The question of law presented for our decision is whether this order was ultra vires. I am of opinion that it was not. My reason is that the Land Court is a court of law, and consequently has power to regulate its own procedure. By section 25 (2) of the Small Landholders Act it is expressly provided that “the Land Court shall have full power and jurisdiction to hear and determine all matters, whether of law or fact, and no other Court shall review the orders or determinations of the Land Court.” Now to stay procedure is to regulate procedure, and therefore to grant a sist is inherent in any court of law, including the Land Court. As Lord Curriehill—in the case of Connell v. Grierson, 3 Macph. 1166—says, a sist is entirely a matter of discretion in which the Court must balance the reasons urged on either side. If that be so, we cannot question the reasons which moved the Land Court to grant the order before us. That is a matter entirely within the discretion of the Land Court, and is outwith our jurisdiction.
It was urged that the order in question was ultra vires, because the sist was granted for an indefinite term. But many sists are granted in similar terms—it is a matter of discretion. The Land Court may consider and determine what ought to be the duration of the sist, and in the books there are examples of sists having been granted to wait the occurrence of events which might never happen.
It was further argued to us that this sist was ultra vires, because it amounted to a refusal of justice. That argument appears to me to beg the question, for it assumes that the sist was granted on wrong or insufficient grounds, and it is not open to us, in my opinion, to consider the grounds on which it was granted. To refuse a sist might in many cases frustrate the ends of justice, but once more this is a question of discretion for the Court exercising the power.
Finally it was urged that this sist was ultra vires, because it was equivalent to a refusal by a competent court to deliver judgment. But that is true of all sists, for during the continuance of a sist a court of competent jurisdiction refuses to deliver judgment, and it seems to me to be immaterial whether one step or more steps, or as in the present case no steps, intervene between the granting of the sist and the delivery of the judgment. As Lord Deas observed in the case I have referred to, “ Prima facie it is a matter of right to either party to insist upon the cause going on, and the onus lies on him who wishes to stop.” If that onus is discharged to the satisfaction of a court of competent jurisdiction, there is an end of the matter.
It appears to me that once it is established that the Land Court is a court of law competent to regulate its own procedure, all further questions are closed. I am for answering both questions in the negative.
After proof and sundry proceedings, and parties having been fully heard, the case was in January 1916 finally ripe for judgment. On 21st March 1916 the minute read by your Lordship was lodged by the Board of Agriculture, and answers for the proprietor having been put in and parties heard thereon, the Land Court on 24th March 1916 granted the crave in said minute and sisted the proceedings in hoc statu. In their note the Court stated that in their opinion the cases should stand over until the conclusion of the war, and they explained that the reasons on which they were asked to do so, and which they accepted as sufficient, were the difficulty of financing the schemes and of finding tenants for the holdings in consequence of the state of affairs produced by the war.
I think the words “ in hoc statu” add nothing to the order, which of course, not being a sist until a definite date, must be in hoc statu, leaving it to either party to move at any time for a recal.
Under the statute I think the process was intended to be a summary one and to be disposed of without delay.
If the Board did not want their applications to be granted, they had the easy
Page: 123↓
I think there is neither precedent nor authority for a party who has applied to a court of law for a judgment saying to the Court, “It is not convenient for me that you should grant me the judgment which I have asked for, and therefore I move you not to decide the case,” when the other party, who is prejudiced by the continuation of the process, asks for judgment and everything is ready for judgment being pronounced.
On principle I think such a sist is indefensible. It both delays and denies justice merely to suit the convenience of the party who instituted the process, and is in my opinion illegal. In my opinion no court of law is vested with a discretion to say at the request of the pursuer, “We will, in order to suit your convenience, delay deciding the case, though the whole proceedings preliminary to doing so are concluded, and although your opponent presses for judgment.”
I am thereforefor answering the questions, both of which I think are questions of law, in the sense desired by the respondent.
[ His Lordship having summarised the facts proceeded] Counsel for the Board maintained that this order was one that the Land Court might at any moment recal at the instance of either party, but the reasons which the Land Court have given in the note which is annexed to the order indicate plainly enough their intention to maintain the sist for at least the duration of the war, and possibly for some much longer period. They point out that if the applications were decided in favour of the Board the latter would at once be faced with the question of providing tenants for the holdings, that it is public knowledge that for the most part the prospective tenants are engaged either in the Naval Reserve or in other forces of the Crown, and that the probable result
Page: 124↓
In these circumstances I am clearly of opinion that the orders of the Land Court are in substance and effect a refusal to pronounce judgment, and not as the tribunal say a mere matter of procedure. So far as the proprietor is concerned he has no right to intervene again in the process, although technically it is competent for him to move the Court to recal the sist. The Land Court have, however, precluded themselves from granting this motion, which it would therefore be futile for him to make.
I do not overlook the fact that the Board in this matter are presumably acting in what they deem to be the public interest. That may be said of every application by the Board of Agriculture, for it has no private interests to serve, but I do not think that the fact that one of the litigants is a public body entitles it to any special consideration. Had such an order been pronounced in the Sheriff Court it would have been appealable to the Court of Session, and I cannot doubt what the result of such an appeal would have been. Counsel for the Board were unable to adduce any instance of a case where, after it was ripe for judgment and had been taken to avizandum, any court had resorted to the extraordinary course of refusing to pronounce judgment in order to serve the interests or convenience of one of the parties to the prejudice of the other. The Land Court, no doubt, are final upon facts, but the question raised in this case is not one of fact but of law, and it has been so stated by the tribunal in the appropriate form. If the order complained of were a mere exercise of discretion with regard to procedure, I apprehend that we should be very unwilling to intervene even if we thought the discretion had been wrongly exercised. I cannot regard this order as of that nature. Counsel for the Board shrank from maintaining that if the Land Court had sisted procedure for ten years they would have been acting within their powers. I do not see any difference in principle between such a case and the present except that the period of the sist is indeterminate. In the case of the Heritors of Corstorphine v. Daniel Ramsay, March 10, 1812, F.C., it was decided that the Court of Session will review a judgment by an inferior court, though its jurisdiction is declared to be final, if it has refused to act or exceeds its powers. That decision is to my mind a sufficient authority for the case being disposed of as I propose, if authority were needed, which I do not think it is, for the Act by which the Land Court is constituted provides for an appeal on a question of law.
On the merits extreme views were argued, or at least suggested, on both sides. The proprietor (while admitting that the Land Court would have power to sist for a definite period during what he called the proper procedure in the case, in such circumstances as the death of a party or the illness of a member of the Court, that is to say, in cases of necessity) denied the right of the Land Court, even during proper procedure, to sist in any case involving the exercise of discretion, at all events where the discretion was exercised, as he alleges it it was exercised here, in the interest or assumed interest of one party, and against the interest or assumed interest of the other. Alternatively it was maintained that if such a discretionary power to sist existed, it was confined to the case of proper procedure, and did not cover the present case, in which a sist had been granted after the proper procedure in the case was over. In the circumstances of the present case the proprietor maintained that the Land Court had no discretionary power to sist, but were bound at once to pronounce judgment, because the case was no longer in the stage of procedure. He maintained that the sist complained of amounted to a refusal by the Land Court to exercise their statutory jurisdiction. It appears to me that it is only the last view which raises any difficulty.
I accept the proprietor's contention that this Court can, in conceivable circumstances, interfere with the proceedings of the Land Court if these involve a refusal to exercise their statutory jurisdiction. It appears to me that, whatever question might have arisen if the Land Court had tied their hands for a period terminable by the lapse of a particular time or on the occurrence of a certain event, or had pronounced an order which on the face of it was inconsistent with any view of the summary procedure which the 1911 statute contemplates, the terms of the Land Court's order in this case are sufficient to exclude any such question. If not, had no order at all been pronounced, it would seem to follow that the Court of Session could have
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But it was said that the order of the Land Court, whatever its terms, looking to the first sentence in the note, is equivalent to a refusal to pronounce judgment until the conclusion of the war. 1 doubt the proposal to construe an unambiguous order by reference to the terms of a note. But if this be competent, the last sentence in the note, as well as reference throughout to “the present time,” shows that the first sentence proceeds on the assumption of no change in circumstances.
The question of the wisdom or fairness of the Land Court's order seems to me irrelevant. If it were relevant, there are no materials before us on which to form any reliable opinion. The course taken has been resolved on in the public interest, which is not necessarily the same thing as the interest of the Board. The question whether the chance of the expenditure already incurred turning out ultimately remunerative is such as to justify the course taken, and the question whether the order is or will be, on the whole, in the proprietor's interest, or if not, to what extent he will suffer by it—these questions depend on local conditions, of which I only know, as at one time Sheriff of the county, that they are very special, and that they are capable of ascertainment only on the spot.
I am therefore of opinion that both questions should be answered in the negative.
The Court, by a majority of four to three, answered the questions in the negative.
Counsel for the Applicants— W. T. Watson. Agent— Sir Henry Cook, W.S.
Counsel for the Respondent— Hamilton. Agents— Skene, Edwards, & Garson, W.S.
