(Sheriff MacLeod, A Macdonald, J A Smith)


(Application RN SLC/120/06 – Order of 9 July 2007)


A crofter applied to the Court for an order ordaining a neighbouring crofter “to accept ownership/responsibility for [specified] boundary fences”. After a hearing and inspection a Divisional Court refused the order on grounds both of law and fact. The applicant having appealed, the decision of the Full Court, refusing the appeal, is reported here not because of the significance of the decision on the facts of the case but for comments made by the Full Court on the competency of such an order and in explanation of (1) the relationship between an Order of the Court and the Note which accompanies it, (2) the limitations on the Full Court’s power to interfere with the decision of a Divisional Court on matters of fact and (3) the extent to which the Court can properly assist a party litigant in the presentation of his case.

The relevant parts of the Note appended to the Court’s Order refusing the appeal are as follows:-

[1] Parties have agreed that this appeal can be disposed of on the basis of their written submissions.

[2] The decision appealed against is the refusal of the Divisional Court to make the order sought in the application.

[3] The order sought in the application is one ordaining the respondent Mr Hargreaves, as tenant of croft 17 Kirkibost, “to accept ownership/responsibility for boundary fences between crofts 17/18 Kirkibost” shown red on a plan lodged with the application.

[4] At page 24 of the Note attached to its Order the Divisional Court explains why, as a matter of law, it considered that it could not make such an order. In short it was because, in the words of the Full Court in the case of Manson v Goodlad 1941 SLCR App 33 quoted by the Divisional Court, “there is no process in law whereby a tenant can be compelled by a neighbour to fence his land”. By extension, on this view, a tenant could not be compelled by a neighbour to maintain a boundary fence to any particular standard.

[5] We do not necessarily agree with the Divisional Court on this point. That is because when Manson v Goodlad was decided there was no requirement on a crofter to provide “such fixed equipment on his croft as may be necessary to enable him to cultivate his holding”. That requirement was introduced only in 1961, by paragraph 20 of the First Schedule to the Crofters (Scotland) Act of that year, and is now number 4 of the Standard Conditions listed in Schedule 2 to the Crofters (Scotland) Act 1993. As the Divisional Court noted, “cultivate” there includes the keeping and breeding of livestock (Standard Condition 13). Section 48(1) of the 1993 Act imposes a not dissimilar obligation on grazings committees in the following terms - “It shall be the duty of a grazings committee - (a) to maintain the common grazings and to provide, maintain and, if necessary, replace the fixed equipment required in connection therewith” – and in the case of The Crofters Commission v Cameron of Garth 1964 S.C. 229 the Court of Session, in a Special Case from this Court dealing with an identical provision in the earlier legislation (section 25(1)(a) of the Crofters (Scotland) Act 1955), held that that meant that the grazings committee had a duty to maintain and if necessary replace the hill fence between the common grazings and the crofts.. At pages 231-232 one sees that, although the application was brought to this Court by the Crofters Commission, the instigators of the reference were the majority of the shareholders in the relevant common grazings. Sikorski v Noble 1985 SLCR 139 is a Divisional Court case which applied the foregoing decision in an application brought by an individual crofter against the landlord and the other crofters having a share in the common grazings. MacAskill v MacLeod & Others 1994 SLCR 95 is another Divisional Court case proceeding on the same basis. By analogy it is possible that Condition 4 of the Standard Conditions produces the same result as between crofters and we are not, therefore, to be taken as necessarily agreeing with the Divisional Court on this point: it must await resolution in another case.

[6] It is clear, however, that even if the Divisional Court had believed itself to have the power to make such an order, it would not have made it. The Note attached to its Order explains why, on the facts as well as on the law, it felt unable to do so and it is at what is said in the Note that the grounds of appeal are directed.

[7] At this point it becomes necessary to say something about the distinction between any Order of this Court and the Note which accompanies it because it is possible that the effect of what is said in the Note in the present case has been misunderstood.

[8] The Order – that part commencing in this case “Edinburgh 16 February 2007…” down to “REFUSE to make the Order as craved” – is the Court’s formal decision on the application before it. It is the part – the only part – of the Court’s judgement which is determinative of the rights and obligations of the parties.

[9] The Note, by contrast, is merely the Court’s account of the evidence heard, submissions made and its own reasoning in coming to its decision. Its function is solely to explain the Order which precedes it. It does not form part of that Order and has no legal force or effect apart from that Order.

[18] Having explained that very important distinction between what is said in the Order and what is said in the Note, we now turn to the grounds of appeal.

[19] In summary, the gravamen of the appeal is that the Court was not entitled to refuse the application on the evidence before it. The various submissions lodged by the appellant draw attention to alleged contradictions said to be contained within and among the evidence of, in particular, Mr Kenneth Macaulay, number 1, Mr Kenneth Macaulay, number 12, and Mr Neil Macaulay, number 15, and complain that insufficient weight was given to the evidence of certain of the others, notably Mr Norman Macaulay, Mr Norman Morrison and Mr Norman Macdonald. There are also complaints about the Court having led Mr Hargreaves through his submissions and the fact that Mr Hargreaves, unlike Mr Allen and his witnesses, did not subject himself to examination on oath. We deal with these latter matters below but the substance of the appeal has to do with the Court’s assessment of the evidence which it did hear.

[20] The first thing to be said about that is that a court of first instance, as the Divisional Court was here, always has a great advantage over an appeal court in the assessment of evidence. So great is that advantage – because it has seen and heard the witnesses and the appeal court has not – that an appeal court can only disturb the weight given to, and the conclusions drawn from, the evidence only if it is satisfied that the court below was “plainly wrong” on these matters (Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35, per Lord Shaw of Dunfermline at page 37; Thomas v Thomas 1947 SC (HL) 45, per Lord Thankerton at page 54, and Forbes v Forbes 1965 SLT 109, per Lord Wheatley at page 121). Having read the Divisional Court’s judgement very carefully in the light of the criticisms made of it in the grounds of appeal we find nothing which would entitle us to interfere with its conclusions. On the contrary, we find the Divisional Court’s treatment of the evidence to have been careful, indeed meticulous. Thus where one witness is preferred to another, or where greater weight is given to the evidence of one witness than to that of another, cogent reasons are given. It is not for us now to substitute any view of our own for that of the Court which heard the evidence.

[30] Before concluding, however, we should comment on a number of other aspects of the appeal which have not been necessary to our disposal of it.

[31] Firstly, so far as the criticism that the Divisional Court “led” Mr Hargreaves is concerned, we have to explain that it is sometimes necessary for any court faced with a party litigant to satisfy itself as to what that party’s position is. Some party litigants are naturally more forthcoming than others and some, therefore, need more help than others. We are satisfied that the Divisional Court in this case did not exceed the bounds of propriety in that regard.

[32] Secondly, with reference to the fact that Mr Hargreaves was not put on oath, that was because he was not giving evidence. We understand the reason for that to have been that, as a relatively recent newcomer to the area he had nothing useful to contribute simply because he did not know from his own knowledge the position with the boundaries. Instead he was relying on the witnesses who gave evidence on his behalf to tell the Court their understanding. That is a perfectly good reason for not giving evidence and, therefore, no adverse inference falls to be drawn from the fact that he did not do so. But most importantly of all, it is perfectly clear that the Divisional Court placed no reliance at all on anything said by Mr Hargreaves - with or without the prompting of the Court - in explaining his position. Instead the Court relied exclusively on the evidence of the witnesses who were examined on oath.

[33] Finally, with reference to both the letter sent in to the Court by or on behalf of the occupants of crofts 12, 13, 14, 15 and 16 Kirkibostwhile this appeal was pending and the appellant’s challenge to its authenticity, we make clear that these are entirely irrelevant to this appeal and that we have attached no significance to them. Instead this appeal has been decided, as all appeals have to be, solely with reference to the decision of the Divisional Court on the basis of the material before it.

For applicant: Party

For respondent: Party

For landlord respondent: No appearance