(Lord McGhie, Sheriff R J MacLeod)
(Application RN SLC 142/99 – Order of 17 May 2010)
CROFTING – RESUMPTION – AUTHORITY TO PURCHASE – CROFTING STATUS – AMENDMENT PROCEDURE – SCOPE OF CONCESSIONS – ESTO CASE – “MINDED TO GRANT” DECISION – PRIORITY AS BETWEEN RESUMPTION AND PURCHASE – COMPARISON OF PROPOSALS – EXPENSES OF AMENDMENT PROCEDURES – CROFTERS (SCOTLAND) ACT SEC 13 AND 20
Owners of land which had been occupied as a croft for many years raised two applications which challenged the status of part of the land. They raised a further application seeking to resume that part in connection with a woodland preservation scheme. The crofter then applied to be allowed to purchase the whole croft. After several years, during which there had been related proceedings in the Sheriff Court and attempts to negotiate, the landowners sought to amend to add additional land and additional purposes. They proposed that the resumption application be dealt with before the status applications and said that if the Court was minded to grant the resumption they would drop the challenge to status. For the crofter it was argued that this was illogical and improper. HELD that in all the circumstances the landowners proposal made sense as being likely to be an efficient way of resolving the essential issues. The Court also dealt with the expenses of the amendment procedure, distinguishing various stages of procedure relating to it.
The note appended to the Court’s order is as follows:
 We have decided that the applicants should be allowed to amend and that this application and the purchase application SLC/131/01 should be heard before the status applications, SLC/141/99 and SLC/143/99.
 This was the course proposed by the landlords. The general argument for the tenant was that it was contrary to the interests of justice that he should be prevented from buying his croft by a resumption scheme which was introduced only in 2008. It was suggested that all blame for the delay lay with the landlords. Their conduct was criticised in forceful terms. The landlords’ position is that any delay has been caused by attempts to resolve opposition by discussion. They say there has been extensive discussion with a number of neighbouring crofters but that it has not been possible to reach agreement with the applicant. We cannot resolve that conflict on the basis of ex parte statements.
 In broad terms, the opposition was based on two separate arguments. One was that the three applications were inconsistent and self contradictory and that it would either be incompetent or an abuse of process to allow a resumption application to proceed when the landlords were disputing the croft status. The other was that the amendment should not be allowed because it was an entirely new scheme, simply sheltering in the carcass of the old.
 In relation to the inconsistencies, Mr Kermack stressed that if the subjects were not a croft there could be no resumption. However, this is obvious. The landlords do not dispute that they cannot succeed in all three actions. But their position is tolerably clear. They wish to be able to use the disputed land at Glac Falaichte for certain specified purposes. If the tenant is crofter of these subjects they would require to proceed by way of resumption. They are prepared to follow that course. But, if unsuccessful, they would intend to take the point that, for a variety of reasons, the land is not properly to be treated as a croft. For present purposes we do not require to consider all the implications of success on that point. It would no doubt lead to a dispute as to whether the land in question was part of an agricultural holding in terms of the Agricultural Holdings (Scotland) Act 1991 and the steps, if any, open to the landlord in terms of that legislation to be able to resume use of the land.
 We see nothing improper in an alternative approach in principle. It is, of course, an approach very commonly taken in litigation. It is usually described in legal shorthand as an “esto” approach. “Esto” can be translated as “if” but the expression “an esto case” is well understood to mean something on the lines of: “If I am wrong on my first point then I would argue as an alternative”.
 Mr Kermack, at one stage, appeared to suggest that it was, in some way, improper for a party to concede something contrary to what they believe to be true or correct. But, this happens day and daily. It must, of course, be recognised that where issues of status arise a concession will not necessarily be wholly determinative of an issue. However, it was not suggested that anything turned on this in the present case.
 Although it would be logical to determine the issue of croft status before dealing with an application to resume, procedural convenience may have to take priority over logic. If we had a full hearing on status, both parties would incur expense. Part of the landlords’ argument would involve detailed examination of the history of the tenancy. Unless we came to be satisfied that there was something entirely unreasonable about the landlords’ conduct of that case, the tenant, if successful, would only recover judicial expenses. He would be out of pocket. If he was successful the action would be followed by the further expense of the resumption application. In short, it makes procedural sense that if the resumption is to go ahead it be heard first, in light of the landlords undertaking that, were they successful on that issue, they would then abandon what they see as their “fall back” case on status.
 Although there was some discussion of what Sir Crispin referred to as a “minded to grant” decision, we would not expect to face any great procedural difficulty. We could not pronounce any order in favour of the landlord for resumption while their other applications were still live, but we would expect to be able to arrange a hearing at which withdrawal of these actions and their objection to the tenant’s application to purchase could be co-ordinated.
 We did not hear detailed discussion of the way the tenant’s application to purchase would be dealt with. We think it makes sense to hear it at the same time. The objections to it cover some ground common to the resumption and in any event we might come to consider it appropriate to deal with it in priority to the resumption, or aspects of the resumption, once we have heard the evidence.
 We have decided that the applicant should be allowed to amend the resumption application because, while recognising that the proposal has seen various changes since 1999, we do not consider that it is possible at this point simply to accept Mr Kermack’s forceful submission that the applicants are using the carcass of an old application for an entirely new purpose. We were not persuaded that the new proposals were “inconsistent” with the original scheme for preservation of woodland. That scheme appears to us still to be at the heart of the matter.
 It appeared that, in broad terms, there were three areas of change to the original proposal. The development of ruined buildings within a natural woodland is not self evidently inconsistent with preservation of the woodland as a whole. Although Mr Kermack made much of the conflict between “tourist use” and preservation of woodland, we think it common to find both activities running together. The tenant may be able to lead evidence to the contrary in the particular circumstances of this case, but we think the matter must, at least, go to proof.
 The other two changes were of a different nature. We have some doubt about the amendment to add a claim to resume land near the pier with a view to future development. At first sight, there seems to be force in Mr Kermack’s comment that this is just “an aspiration”. The Court places considerable weight on the need to be persuaded that a particular development is likely to go ahead before granting permission to resume. However, there may well be circumstances where a particular proposal is properly to be seen as no more than an adjunct of the main scheme. Determination of whether, and if so, to what extent, resumption should be allowed for the purposes consistent with development of tourism will be a matter for decision in the exercise of our discretion in light of all the evidence.
 We found the proposal to resume for the purposes of creating a small holding to be surprising. We would not normally expect to authorise resumption of land so as to take it from one agricultural tenant to give to another. Sir Crispin did point out that one of the express purposes set out in section 20 of the Crofters (Scotland) Act 1993 was for use for “small allotments”. He suggested that the proposal could fall into that category. We find little in the pleadings or available productions to support this contention. But, of course, the specific purposes set out in section 20 are no more than examples. We shall have to consider this particular proposal after hearing evidence. Had it stood alone, we might have subjected it to further scrutiny at this stage but the simpler course is to deal with it as part of the whole scheme. It was not disputed that we could allow the resumption in whole or in part.
 We do not attempt to deal with all the arguments advanced in support of the tenant’s position. We consider the broad picture clear. It may be said, however, that we do not consider it appropriate to adopt a hard and fast rule that, in competition between an application to resume and an application by a tenant to purchase, priority of lodging an application with the Court will necessarily determine the order in which the applications are heard. We do not accept the content of the ante-penultimate paragraph in MacAskill v Basil Baird & Sons Ltd 1987 S.L.T. (Land Ct) 34 as intended to support any such rule. It was simply an observation about a factor in the circumstances of that case. Priority of lodging may be a persuasive factor in many circumstances but it is clear that there are circumstances where it would be wrong to place any weight on it. Where parties have been in discussion, it is obvious that the actual date of lodging could depend to a large extent on the view one side took of the progress of negotiation. It plainly would not be right for the party who was first to break off discussion to be given any advantage from being first to come to the Court. However, more broadly, there may be circumstances in which it is appropriate to compare the parties’ proposals for a particular piece of land. In the present case, Mr Kermack was able to assure us that the tenant’s opposition to the resumption was based on the contention that the area in question was important for shelter. He said that but for this there would have been no opposition. Thus there would have been no opposition had it been open hill. Equally, we think that, if a landlord presented an application for resumption of such an area, even after a tenant’s application to buy, we would be able to give consideration to the long term implications of the competing applications for use of the ground.
 Sir Crispin moved for certification of the cause as suitable for the employment of senior counsel. Mr Kermack opposed this on the basis that the probability was that Sir Crispin had been instructed because of his expertise in this general area rather than because the complexity of the various applications justified senior counsel. We accept that the issues raised are important and comparatively complex but we are satisfied that the difficulties to date have turned largely on complications of fact. We accept Mr Kermack’s submission that no significant issue justifying employment of senior counsel has been identified but certify the cause as suitable for the employment of junior counsel.
 We have found the tenant entitled to expenses in each application insofar as occasioned by the sisting of new parties as landlords up to, but excluding preparation for, attendance at, and otherwise occasioned by, the hearing on 2 December 2009. In respect of these matters relating to the hearing we find the tenant liable to the landlord to the extent of one-half.
 We have taken that view on a broad basis in the circumstances of this case. We accept that what should have been a simple exercise of replacing one landlord with another was made unduly complex by confusion caused by conveyancing errors for which the landlords should accept liability. However, it appears to us that most of these issues had been resolved before the hearing. We consider that the objection taken by the tenant at the hearing was plainly premature. An attempt had been made by the Principal Clerk to warn the tenant of this in advance of the hearing. The landlords might be thought to have had substantial success at the hearing. However, where a hearing is primarily concerned with procedural issues it is not appropriate to take a black and white view of success. Expenses must be determined on a broad basis.
 We find the tenant entitled to the expenses occasioned by amendment in each process following the Order of 18 December 2009. However, this will again exclude the expense of preparation for, attendance at, and otherwise occasioned by, the hearing on 4 May 2010. We consider that these latter heads should be dealt with as expenses in the cause in the instant process (SLC/142/99).
 We did use the hearing to discuss the question of common grazings raised in SLC/143/99. The tenant was successful on that matter. However, the time taken on it does not appear to us to justify the trouble and separate expense which might have been occasioned by making an award in that process requiring separate accounting. We also heard motions for expenses which covered all the applications. But little time was spent on that in light of the written submissions dealing with these matters.
 We recognise that the tenant has again been unsuccessful on the main issues. Here again, we consider that where a discussion is substantially about proper procedure it is not appropriate to assess expenses simply on the basis of apparent success. We do not consider that it was unreasonable for the tenant to draw attention to the apparent changes in the resumption application. If certain aspects of these proposals had been advanced on their own we might well have accepted that it was inappropriate to allow them to proceed to a hearing. But, as we think it appropriate to have a hearing dealing with the whole package, it is reasonable to leave the question of expenses relating to the hearing to be dealt with in light of our decision on the ultimate merits.
For the landlords: Sir Crispin Agnew of Lochnaw QC; Macphee & Partners, Solicitors, Fort William
For the crofter: Turcan Connell, Solicitors, Edinburgh