THE COURT

(Lord McGhie, Mr A Macdonald)

NEVIS ESTATES LTD AND OTHERS v CAMERON

(Application RN SLC 142/99 – Order of 15 August 2011)

CROFT – RESUMPTION – RIGHT TO BUY – AREAS TO BE RESUMED – CONDITIONS OF RESUMPTION – FENCING – ACCESS – REPAIR, MAINTENANCE AND IMPROVEMENT OF TRACKS – CONDITIONS OF PURCHASE – FENCING OBLIGATIONS – RANKING OF STANDARD SECURITIES – EXPENSES IN RESUMPTION APPLICATIONS – MODIFICATION OF EXPENSES – UPLIFT IN EXPENSES – CERTIFICATION OF SKILLED WITNESSES – CROFTERS (SCOTLAND) ACT 1993 SECS 12-15 – SECS 20-21 – ACT OF SEDERUNT (FEES OF SOLICITORS IN THE SHERIFF COURT) (AMENDMENT AND FURTHER PROVISIONS) 1993.

The Court had issued an order indicating that it was minded to grant resumption of certain parts of a holding. It had been agreed between the parties that the tenant would be entitled to purchase the remainder. Following the Order, there was an exchange of correspondence relating to terms and conditions to be imposed in relation to the purchase and resumption and relating to various other matters of detail. The Court eventually heard parties on a range of disputed issues relating to the conditions of purchase and resumption. It was agreed that all questions of compensation under section 20 and of the right to share in value in terms of section 21 would require further procedure.

The Court made various findings relative to the particular circumstances of the case. In relation to expenses the Court found that the parties had had divided success. Expenses had to be approached on a broad basis but the underlying principles to be applied were that the landlords should pay for the matters in respect of which they had been unsuccessful but that, in all the circumstances, the tenant should not be found liable in the expense incurred in unsuccessfully opposing resumption of a part of his holding.

The Note appended to the Court’s order is as follows:

[1] For the reasons discussed in our Note of 17 May 2010, we decided that the hearing in this application and in the purchase application should be heard before the applications challenging the status of the holding or part of it. For related reasons, we heard evidence in this case bearing on the substantive issue of what land should be resumed but, instead of a formal Order, set out our conclusions in a Note. Further references to the “hearing” are to that hearing of evidence and to the “Note” are to the Note attached to the Order of 1 February 2011.

[2] Following issue of the Order, there was an exchange of correspondence relating to terms and conditions to be imposed in relation to the purchase and resumption and relating to various matters of detail. Some matters were agreed but we heard parties on 7 July (“the recent hearing”) to deal with a range of disputed issues. Sir Crispin Agnew again appeared for the landlords and Mr Lewis Kermack for Mr Cameron. We had intimated our expectation that most of the outstanding issues could be decided without the need to lead further evidence. It was agreed that all questions of compensation under section 20 and of the right to share in value in terms of section 21 would require further procedure. However, it was not suggested by either party that we would require to hear further evidence before determining other terms and conditions of purchase and resumption. There was a suggestion that we might hear evidence to determine the precise areas to be resumed. However, as will be explained, we have decided that it is unnecessary to hear further evidence on that issue.

Statutes

Crofters (Scotland) Act 1993
Crofting Reform etc (Scotland) Act 2007
Crofting Reform (Scotland) Act 2010
The Crofting Reform (Scotland) Act 2010 (Commencement, Saving and Transitory Provisions) Order 2010
Land Reform (Scotland) Act 2003
Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993
Unqualified references to individual sections in this Note are to the provisions of the Crofters (Scotland) Act 1993.

Authorities

Anderson v Williamson 1997 SLCR 23
Bowman v Guthrie 1998 SLT (Land Ct) 2
Campbell v Duke of Argyll’s Trustees 1977 SLT (Land Ct) 22
Fojambe v Crofters of Melness etc 1979 SLT (Land Ct) 9
Grant v Countess of Seafield’s Trustees 1997 SLT (Land Ct) 7
Kennedy v Stewart and Ors 2008 SLCR 271
Macdonald v Barker 1970 SLT (Land Ct) 2
McKie v Scottish Ministers 2006 SLT 668
Noble v Crofters sharing Upper Breakish Common Grazings 1999 SLCR 82
Oosterhof v Scottish Ministers SLC-69-10 (10 June 2011)
Secretary of State v Shareholders of Lealt and Culmacnock Common Grazings 1982 SLT (Land Ct) 20

Land to be resumed

[3] Although we heard evidence for the purposes of both the purchase and resumption applications, the main reason for the hearing was to determine what land, if any, should be authorised for resumption. Our Note expressly left open the precise detail of what should be authorised in the proposed regeneration corridor to the north and around the pier. We left open the description of the solum of the track to be resumed. Although we did not express any conclusions by way of formal Order our findings were otherwise intended to be determinative. It now appears that our proposed disposal was not satisfactory in respect of what we had described as “the woodland” Although we have been reluctant to change what was intended as a concluded finding, we have decided that in the special circumstances good reasons have been established justifying some change. We now accept that our proposed finding was based on a misunderstanding. The procedure which has been followed allows this now to be corrected.

[4] It is appropriate to set out the background in a little detail. In the initial application the landlords had sought resumption of all the wooded areas on the croft. There followed some discussion with the tenant which led to amendment to reduce the area proposed to be resumed. The amendment of August 2001 changed the crave to refer to an area “extending to 11.1 ha. [hatched green] and 5.1 ha. [hatched yellow]” on a plan attached to the amendment. That plan was not then made a production but it has now been given a production number [pro.133]. The hatching in it appeared as a solid green tint. Unnoticed by the Court the record made up by the landlords after that amendment changed the wording of the crave so that it read “those parts coloured and hatched green and/or those parts coloured yellow extending respectively to 11.1 hectares and 5.1 hectares” all as shown on the plan. By further amendment of 28 January 2010, the landlords changed the crave to add an area bounded in red. This covered the track and pier and some further land adjacent to the pier. There was no apparent intention to change to the crave in relation to the 11.1 ha area. A new plan was attached. It was lodged as production 106. On that plan, what had been originally the green area of 11.1 ha. was labelled as 10.868 ha although the crave itself continued to refer to 11.1 ha. It will avoid risk of further confusion if we now use the term “11.1 ha” area in reference to the area so described in the pleadings. In our previous Note we used the term “woodland area” intending to refer to it but the wood does not in fact extent throughout the whole area. No significance was attached to plan label of 10.868 ha. We heard no direct evidence of measurement but it may be said that with the advent of GPS and related techniques of measurement, it has become common to see minor revision of measured areas of agricultural parcels without intention to make any substantive change. The whole area was very clearly hatched green and some parts of it were also coloured green. There was nothing in the pleadings to suggest any distinction between the parts hatched in green and those parts showing a green tint. The area to the north hatched yellow appeared to have the same boundaries as before and was shown on the plan as 5.106 ha.

[5] At the start of the hearing on 18 October, Sir Crispin asked leave to substitute a revised plan. It was said in terms that this was simply because the yellow area was shown extended further to the north as the croft boundary to the north had been more accurately determined. There was no objection and we allowed the original production 106 to be removed and a new plan substituted showing the area in yellow with its north boundary further to the north and its area revised to 5.540 has. Unfortunately, we failed to attach significance to the fact that, on the new production 106, the colours had become faded and the hatching of the 11.1 ha area while visible on close inspection, had become very faint. For completeness, we have now had the original of 106 included as a production. It is production no. 134.

[6] In our Note we referred to the woodland in various ways. But in the concluding paragraphs discussing the “Extent of woodland”, at [125] we referred to “the 10.868 ha shown crossed-hatched on the plan, no. 106 of process” and at [133] we said we should authorise resumption “of the woodland area shown crosshatched in the plan attached to the application”. We doubt if that could properly be said to be ambiguous and, indeed, in a letter of 21 February 2001 Mr Kermack sought clarification in relation to the apparent overlap of the hatched area with the proposed smallholding. The overlap was over the faint hatching. Unfortunately, when attention was drawn to the problem in this way, the real difficulty was not recognised. In later correspondence and plans the tenant effectively contended that our intention was limited to the area coloured green within the bounded 11.1 ha area. We thought that disingenuous. It is not easy to accept that anyone aware of the full history of the pleadings could have been in doubt as to what we had in mind. However, at the recent hearing Mr Kermack was able to explain Mr Cameron’s position in greater detail. He had approached the hearing confidently assuming that the references in the pleadings to the different areas sought to be resumed had been superseded by reference to plans in the Masterplan in relation to the smallholding. This allowed a potential confusion to go unnoticed. Mr Kermack explained that he had not felt it necessary to address in submission any distinctions within the 11.1 ha area, as shown in production 106, because it was understood that the applicants were relying on the Masterplan. He had not led evidence addressing any such distinction.

[7] The area shown in the Masterplan as part of the proposed market garden clearly did extend into the 11.1 ha area. There is no doubt that the landlords’ evidence did rely on the Masterplan and no attempt was make expressly to support inclusion of the whole 11.1 ha area by reference to woodland proposals.

[8] On our site visit we had noted the north west part of the 11.1 ha area as broadly distinguishable from the rest. It had no trees. It was covered in bracken. It sloped steeply to the south and could be distinguished from what we had taken to be the proposed small-holding, described in the pleadings by reference to the 5.540 ha area, which was comparatively level. We did have some reservation about including it as part of the woodland but took the view that, in absence of any submission seeking to distinguish parts of the areas identified in the pleadings, it was appropriate to include it. We had in mind the evidence that regeneration of woodland would include extension of the wooded area by natural seeding of adjacent ground.

[9] Although Sir Crispin, at the recent hearing, was correct to say that there was no doubt as to the intention of the Court, he did accept that the north part of the westmost section of the 11.1 ha area might have to be excluded from resumption. As the landlords’ evidence in respect of the overlap area must be seen to have been based solely on attempts to support the Masterplan this was a sensible concession in the circumstances. It is clear that such exclusion would not prejudice the woodland project.

[10] In the result, we conclude that the boundary of the area to be resumed as part of the woodland should be restricted by excluding the parts which appear on the large plan, lodged as part of production 24, as intended for resumption to be part of the smallholding proposal.

[11] However, there was no similar explanation for absence of any evidence bearing on the southern parts, adjacent to Loch Morar. We heard nothing at the hearing about the importance of the bay area for landing sheep. Indeed, all that was said by Mr Cameron on that subject was that, while he agreed to the landlords resumption of the pier area and track, he wished to reserve a right to use the pier. The only reference to a possible need for access to the South Tarbet Bay was put in a question to Mr Sidgwick in chief. He had explained that he had had full discussion with Mr Cameron as to how he ran his croft. After giving evidence that the loss of Glac Failchte would simply reduce the scale of Mr Cameron’s operations he was asked what would be the significance of having no access to the bay. His answer was to the effect that the main point was to have use of the pier. He said he had not thought of landing apart from at the pier.

[12] At our site inspection we had given some thought to the possible use of the bay for access. We realised that the pier might not be useful for landing sheep from a landing craft such as had been mentioned in evidence. We also recognised the advantage of a choice of shelter. In some winds the Rubha Dubh would provide shelter when the more obvious landing area at the other end of the croft might be too exposed. But we saw no sign of any established landing area within the 11.1 ha area. We saw no reason to think that any part of it would be significantly better than the pier area. We took what was intended as a concluded view on this matter in light of the evidence, the pleadings and our findings. We do not consider it open to change our decision without special circumstances and good reason. Any confusion over the smallholding proposals had no bearing on the area adjacent to the shore. We are not persuaded that there any special circumstances justifying a change from our initial intention.

[13] It should be added that we are satisfied on the evidence that the purpose of woodland preservation and regeneration is not limited to areas where there is an existing canopy. Although the expert interest had been attracted by the old atlantic oakwood and its related characteristics, the essential point of the landlords’proposal was the need to manage the land to allow regeneration. The area to west of the burn is secondary woodland but the trees would be expected to mature in time. Natural reseeding would allow a buffer zone around existing trees. Although it is not necessary to define the area to be resumed by reference to existing growth the wooded area comes quite close to the shore. We remain entirely satisfied that it is reasonable to resume that area as part of the woodland purpose.

[14] In the recent correspondence it was initially claimed that Mr Cameron required access to the entire bay for the purpose of landing sheep. It was later said simply that he required use of a stone pier said to be within the disputed area a little to the west of the burn. The existence of any useful pier was denied by the landlords. But, whether it was a pier or simply an area of convenient beach, if Mr Cameron can demonstrate that he has lost a worthwhile landing area because of the resumption it might be appropriate, by way of compensation, for the landlords to be taken bound to restore the slipway in such a way as to accommodate his boat. We understood that to be their intention in any event. If that is not possible, they might be required to clear access to the beach to the east of the slipway. It would be necessary to balance the cost against the alleged loss but the hearing in relation to compensation would provide an opportunity to hear further evidence bearing on this issue.

[15] In the event, we are prepared to authorise resumption of what the crave refers to as the 11.1 ha area under exception of the area shown shaded blue to the north and west of the blue line now marked on the plan, production 132. It may be said that we intend the line to reflect the boundary of the proposed small-holding area as shown on the big plan, part of production 24 but it is not necessary that it follow it exactly. Our intention is that the landlords should erect their fence outwith the line of the outer canopy of existing trees, as close as reasonably practicable to that blue line but subject to any minor variation required to accommodate any particular difficulties of topography.

[16] In relation to the 11.1 ha area, Mr Kermack also advanced, at the recent hearing, an argument which we understood to be the effect that, having based our decision on the purpose of woodland preservation and regeneration, we should positively seek to prevent the landlord from making any other use of the resumed land. He addressed ways in which he proposed that might be done. It was said that an effect of sec 21A of the 2007 Act was to supersede dicta in decisions such as Secretary of State v Shareholders of Lealt and Culnacnock and Macdonald v Barker which discussed the limited powers of the Court in relation to imposition of conditions. We did not hear submissions as to the scope of sec 44 of the 2007 Act and simply note that, although Sir Crispin said that the landlords were content to treat the amendment to sec 20(1) as effective, there was no explicit concession in relation to the new sec 21A.

[17] We think it unnecessary to impose conditions and, therefore, unnecessary to consider further the implications of sec 21A. We might have felt it appropriate to consider that section and the question of how conditions might now be imposed if we had thought this necessary to protect the main purpose. However, as discussed in our Note, we were satisfied that the “bunkhouse” proposal was quite compatible with the woodland purpose. There might also have been a need to consider such conditions had we thought it necessary to do so to protect the legitimate interests of the croft. But we are satisfied that the bunkhouse proposal has no real bearing on this.

[18] We dealt with the resumption on the understanding that the “bunkhouse proposal” lay within the area proposed for woodland development. It plainly lies within the area which we consider appropriate to fence off for that purpose. We thought it unnecessary to reach a concluded view as to whether the proposed tourist development would, in absence of any woodland, be a reasonable purpose, weighing the reasonableness of the proposal against the whole other circumstances, including the respective timing of the applications. However, in course of his submission, Mr Kermack suggested that we had “refused to consider” the bunkhouse development. He came close to suggesting that the woodland proposals were simply being used as an excuse to allow the bunkhouse development to proceed. It is accordingly appropriate to comment further on the bunkhouse proposal.

[19] The discussion of the bunkhouse proposal, at paragraphs [128] to [132], was in the context of the proposal to resume the whole woodland. Had the bunkhouse proposal stood on its own, we would have had to consider the balance of impact on the croft, the estate and the public interest. As a matter of concession we would also have had regard to the interests of the crofting community although it was not suggested that this was of any separate weight in the present case. The extent of land to be removed from the croft for the purpose of building the bunkhouse and providing related facilities would have been wholly insignificant. The only suggested adverse impact was the supposed risk that the intermittent presence of strangers at the bunkhouse would have an adverse effect on the sheep. It was accepted that they were not unduly disturbed by walkers using the track. We are not persuaded that use of the bunkhouse would have prevented sheep from utilising the woodland in storm conditions or taking available nutrition in the spring. We do not accept that any intermittent disturbance of the sheep is a factor of any weight. It was obvious from our site inspection that the sheep tolerated the presence of humans off the track. We were satisfied that the house sites would not have any identifiable adverse impact on the running of the croft. As we have previously noted our concern is with the good of the croft and not the personal feelings of the present crofter. The public interest in development of reasonable tourist facilities would have provided adequate justification for resumption for the bunkhouse development. In weighing the reasonableness of the purpose in terms of section 20(1) the only factor which would have given us pause would have been the timing and the need to give some weight to the priority of the tenant’s application to purchase.

[20] It may be said that at the hearing we did not fully understand the reason for Mr Kermack’s full and detailed cross-examination on matters relating to the detail of construction and operation of the bunkhouse. He made much of the fact that planning permission for the cottage was limited and would not allow it to be used as a permanent residence, as proposed, for a bunkhouse manager. Little of this appeared to affect the croft one way or another. Matters became clearer when he stated quite candidly at the recent hearing that an objective of Mr Cameron was to prevent tourists and development in the area. However, we do not consider Mr Cameron’s motives to be relevant to the assessment we had to make. We are satisfied that construction of the building for use will eventually be likely to go ahead. If there had had to be a fine balancing of the interests of the croft against the interests of the public, it might have been necessary to assess that matter on the basis of the use allowed by the current planning consent rather than by the use proposed by the landlords. In fact we consider that the latter would have been more beneficial to the croft. Having regard to the comparative remoteness of the location, having a full-time neighbour in residence would tend to be regarded as a benefit. As we have said, the only real matter to be weighed against the proposal would have been the question of priority. We did not express a concluded view and consider it inappropriate now to do so. It is sufficient to make it clear that we did not refuse to consider the bunkhouse. We thought it unnecessary to deal with it separately when it appeared to fall within the scope of the proposed resumption of the woodland.

Regeneration corridor

[21] The original proposal of the landlords had been to establish a broad corridor for regeneration of woodland to the north. This was to allow the woodlands at North and South Tarbet to join and to provide a corridor for bio-diversity. The smallholding proposal would have encroached on that scheme. We rejected the smallholding and our finding on inspection was that the central part of the pass was of value for stock. As discussed in the Note, at [125], we were satisfied that the steep part to the east could be resumed for regeneration purposes. We were not able to identify a precise boundary line to the west. Our identification of a line on plan [pro. 107] was done on a very broad basis and we expected practical considerations to prevail. It was obvious from our site inspection and is confirmed by photographs that the actual position of the line is of no great significance in terms of beneficial use of the land for sheep. The ground in question is steep and rocky. It is of little significance in relation to the regeneration. Tree seedlings might well establish themselves in crevices but they are unlikely to develop into mature trees of any quality. They might assist in the establishment of a corridor of bio-diversity. The landlords submitted that a line some 10 metres to the west of our proposed line would be on slightly lower ground and would be more easily fenced. The tenant’s position was that the boundary should be as far to the east as possible. In a telling phrase, Mr Kermack said that Mr Cameron was “entitled to his pound of flesh”. However, it seems to us that this issue is simply a practical one of fencing. We accept the landlords proposals as sensible. It was suggested that the Court might attend and peg out a suitable line for the fencing. But, like many aspects of this litigation, this appears to us out of proportion to the substantive point in dispute. We shall authorise the landlords to establish the fence on a line as near as may be to that shown by the red line on the photographs “woodland corridor” attached to their letter of 15 March 2011 (production 123).

Resumption at the pier

[22] In our Note we referred to Mr Cameron’s concession that the landlords should be entitled to resume the solum of the foundations of the jetty and of the track. We referred to the limited area available for development at the pier and to the lack of any evidence that the landlords’ assertions of a need to improve it would require any specific additional land take. We were, however, satisfied that it was reasonable to allow resumption of land immediately adjacent to the pier for the purposes of maintenance, development or rebuilding of the pier and for shelter facilities for travellers. We explained that we had not been addressed on the detail of the topography. We had in mind something of the order of a 5 to 10 metres strip but the precise area would have to be determined by the land form.

[23] At the recent hearing, the landlords made reference to plans for a combined storage shed and shelter with scope for toilet facilities. They proposed excavation of rock to provide room for the shed. They sought to resume a strip running south from the pier to allow for a sewage outfall and a “maintenance access route” to a part of the shoreline where they propose to create an additional breakwater, described on the plan as “proposed sheltering stone promontory”.

[24] On behalf of Mr Cameron this was objected to, mainly on the basis that it was said to go far beyond what was contemplated in our Note. It can be said that, at the hearing, we had heard no word of a breakwater, a toilet, or a storage shed. Such evidence as we did hear was not persuasive of any need for elaborate facilities at the pier.

[25] The difficulty we now have is not with the reasonableness of the landlords’ proposal but with the fact that the particular procedures adopted in this case cannot be used as an excuse for a second bite of the cherry. Our hearing was intended to deal with all issues relating to resumption. The material now advanced should have been addressed at the hearing. Sir Crispin did suggest that there had been evidence of an intention to develop extensively at the pier. The landlords had sought to resume the whole peninsula with that aim. However, the direct evidence was very limited. Mr Aitchison said that they were not expecting any substantial improvement to the pier. No attempt was made to lead evidence of the detail of buildings. We think this unfortunate. On the face of it, the landlords’ proposals are entirely sensible. When pressed as to Mr Cameron’s reasons for objection to them, Mr Kermack candidly explained that it was because Mr Cameron did not want any tourists. He did not want development of tourist facilities. Indeed, his essential attitude was that he was not prepared to concede anything more than he had to.

[26] Mr Cameron is, of course, entitled to resist resumption for his own motives. But, as discussed before, the Court is not directed to have regard to the motives of an individual crofter but to the good of the croft, the estate, and the public interest. It might seem to be clearly in the public interest that there should be shelter facilities at any kind of passenger terminal and that these would be better with toilet facilities. It might appear that availability of such facilities would also be to the benefit of the croft in avoiding the consequences of a more casual approach to toilet arrangements. However, these benefits might be more apparent than real. Walkers in Highland areas do not expect such facilities and have long enjoyed access to comparatively remote areas without them. We do not think that the benefit of shelter facilities is a matter of any great significance. The landlords sought to have right to fence off the area. If that happened there would be some loss of shelter for stock. That too is not of any great significance but it is a counter-vailing factor. We think it likely that we would have approved the landlords’ purposes had we heard them fully ventilated at the hearing. However, we do not find the case for resumption to be so clamant as to justify allowing it at this stage.

[27] It might have been hoped that some agreement on this matter could readily have been reached. We had taken the view that provision of some form of modest shelter at the pier would be a reasonable purpose. We shall allow the landlords to resume land within a radius of 10 metres of the north west corner of the existing pier. This would allow the possibility of some modest shelter within the intended scope of our Note. The slipway is mainly submerged but for avoidance of doubt we would allow resumption within a 12 metre radius of the north east corner of the pier to cover all of the slipway. We are satisfied that the proposed breakwater would be of benefit to all potential users of the pier and slipway. It will be constructed on the solum of the loch and does not itself require resumption. Instead of resumption of an access route to the new promontory we think it appropriate specifically to reserve a right of access for construction and maintenance of such a breakwater.

The tracks

[28] Resumption of the track from the pier north through the glen to North Tarbet, referred to as the N-S track, was agreed by Mr Cameron. In many sections the track has been built as a causeway on a raised bed with excavations for drainage or ditches on each side. In the Note, we indicated that a 6 metre strip would cover the track itself and related ditches and drainage but we invited submissions to deal with any practical issues: para [57]. For the crofter, Mr Kermack did not address the matter in terms of practical difficulty but simply on the basis that 6 metres was far too wide. He asserted that 3 metres would be enough to cover both track and ditches but said that up to 4 metres could be accepted. Anything more was excessive and beyond the scope of Mr Cameron’s concession. However, he accepted that the landlords would be entitled to access to adjoining land for maintenance works.

[29] On our inspection we had rather assumed that this was a matter of no practical significance and readily capable of agreement. We did not attempt a survey of the track. However, we have no difficulty in accepting Sir Crispin’s statement that the red dots on the photograph, production 113, show markers near each side of the track bed measured at 3.10 metres apart. We had little doubt that the track bed appeared generally to be of the order of 3 metres wide and we saw parts where the track and related ditches appeared to extend to about 6 metres. However, we accept that the ditches have no regular form and there are places where there are no ditches or where there is drainage work on one side only. We think the needs of the situation will be met by allowing resumption of a 3.5 metre strip centred on the centre of the existing track and by reserving to the landlords a right to enter the remaining land to carry out any work reasonably required for drainage, support, maintenance and upgrading of the track.

East west track

[30] It is convenient at this point to deal also with the issues relating to the track running from the N-S track west through the croft. The landlords did not seek to resume it and it is agreed that the solum should be conveyed to Mr Cameron with the rest of his croft. The track appears to be a public right of way but, in any event, we are satisfied that the landlords should have rights of pedestrian and vehicular access over it together with rights to maintain and carry out reasonable works of upgrading. As with the N-S track, the rights should include rights to carry out work on the adjacent land reasonably required for drainage, support, maintenance and reasonable upgrading of the track.

[31] In relation to upgrading, we are satisfied that both dominant and servient proprietors of an access route should be entitled to carry out reasonable work to improve the route at their own expense. It may be noted that we are not persuaded that a dominant proprietor at common law has any right to enlarge the access and we do not intend that any right to widen be implied. In the present case, we consider that upgrading would be likely not only maximise the value of the land to the parties but be to the benefit of the public as users. The track is uneven in placesA question, of course, arises as to the share of liability for ongoing maintenance of any upgraded sections. A broad approach is appropriate. In practical terms, upgrading of tracks such as the E-W or N-S tracks might be hard to distinguish from work of repair. In any event, reasonable upgrading would be as likely to reduce the burden of maintenance as increase it. The other party should not have to pay for maintenance of fanciful or inappropriate improvements but, provided the work is reasonable in the context of the location, we consider that the shared maintenance obligation should apply to any upgraded parts as well as to the track in its present state.

Other matters relating to resumption areas.

[32] The landlords had averred that Nevis Estates Limited had had granted a 175 year lease in favour of Sir Cameron Mackintosh. At the recent hearing it appeared that Mr Kermack had not had a sight of this lease and it was arranged that it should be lodged. It became apparent that the lease was of part of the solum of Loch Morar, some islands in the Loch, and certain salmon and other fishings in the Loch with, broadly speaking, related rights of access. When the lease was lodged it was asserted on behalf of the crofter that failure to disclose this lease was “material”. This assertion was not accompanied by any motion asking the Court to respond by taking any particular course of action. When the Principal Clerk wrote to ask Mr Kermack what motion he wished to make, he responded to say that he wished his letter to be put before the Court.

[33] We have often tried to make the point that lengthy letters to the Clerk with a mixture of assertions of fact and of law, unrelated to a specific motion, are an inefficient use of time. It is not helpful for a Court to be faced with detailed complaints and assertions of fact and law unrelated to a specific motion or request. It is not easy to know whether, and if so how, the other side should be invited to respond to such material. However, we recognise that it is sometimes possible to spell out from such a letter the terms of the substantive motion the writer has in mind. In the present instance, there is an apparent contention that, in considering the reasonableness of the landlords’ purpose in seeking to resume, the Court had to take account of the ability of the landlords to carry it out. It is asserted that the Trustees of Tarbet Trust could not carry out any development which conflicted with the rights of the tenant in terms of the lease. Accordingly it seems that the tenant was asking the Court to treat the lease as if it had been placed in evidence at the hearing and to reconsider the decision expressed in the Note by finding that the landlords have not satisfied the Court that their purpose of woodland protection was likely to be carried out.

[34] We have decided that it is appropriate to treat the lease as part of the relevant evidence to be considered the merits. We have considered the assertions made as to the implications of its terms. There is no doubt that when considering whether to authorise a resumption, we have to consider the likelihood of any proposed purpose being carried out. However, we have no reason for doubt on that score in the present case. The issue is a factual one. Sir Cameron Mackintosh is plainly in a position to control the development. Indeed, Mr Kermack at the hearing, voiced the criticism that the project was no more than a rich man’s whim. When it is clear that Sir Cameron could stop the project by declining to fund it, it seems to us little to the point that he might also stop it by insisting in his rights under a separate lease. Plainly he can waive any rights which might conflict with that purpose.

[35] In any event it may be observed that Mr Kermack’s comments on the lease relate to obligations imposed, not on the landlords, but on Sir Cameron Mackintosh as tenant. They relate to his use of the leased subjects. These do not include any part of the 11.1 ha area. The letter made reference to two other documents which were not produced at the hearing and to the terms of an SSSI. It was pointed out that the discussion of the latter was curtailed at the hearing on the grounds that it did not extend to the croft. However, the letter included the broad assertion that “if the applicants’ purpose to resume could be taken to have a material adverse effect on the benefit of an adjoining landowner, it would appear to be the case that the applicants would be prevented from carrying it out in terms of the lease”. It is not clear to us what motion is implicit in this hypothesis. It is sufficient to say that we are not persuaded that the lease between Nevis Estates Limited and Sir Cameron Mackintosh has created any new rights enforceable against either of them by proprietors of adjacent estates. We do not think the lease has any bearing on the resumption issues.

Terms and conditions of resumption

Fencing

[36] The landlords accept responsibility for fencing of the resumed areas. There will, of course, be no fencing of the track which is to remain open for free passage of stock along and across it. In relation to the 11.1 ha area - as now restricted - they seek a condition that future maintenance of the stock fence be shared jointly. This was opposed but we think it a reasonable condition. The fence will be the boundary of the subjects to be owned by the crofter. Mr Cameron had told us that he was willing to pay for maintenance of the existing east boundary fence. There is no good reason why he should not pay a share of the new one.

[37] The main difficulty arises from the landlords’ wish to reserve a right to install a deer fence instead of, or in addition to, the normal stock fence. They accept that responsibility for maintenance of the deer fence element should rest entirely with them. Mr Kermack contended that a combination of shared responsibility for the stock fence and sole responsibility for the deer fence element was ridiculous and unworkable in practice. We accept that there will be difficulty in determining precise shares but we do not regard the likelihood of such difficulty as sufficient to change the principle which seems to us to be sound. Mr Cameron has a direct interest in having a stock fence. He has no interest in a deer fence protecting the woodland. Issues of liability between landlord and tenant for maintenance of fixed equipment notoriously gives rise to potentially difficult practical issues. Such difficulties are usually capable of being resolved by a measure of give and take. However, we think that, in the present case, the task of any court or arbiter might be eased by making express provision for onus. In the particular circumstances of the present case we think it reasonable that where there is claim for repair of any fencing which includes deer fencing the onus should rest on the landlord to demonstrate the element of repair properly attributable to repair and maintenance of the stock fence. With that proviso, however, we consider that it is appropriate that future maintenance of the stock fence should be shared equally but that the landlords should be wholly responsible for elements of cost attributable to the deer fence.

[38] There also appeared to be a dispute as to the landlords right to put gates in the fence. This is a matter essentially related to the issue of access which we discuss further in relation to the conditions of purchase. We consider that the landlords are free to install such gates as they wish in the fence itself. Such gates will be solely for their benefit and liability for future maintenance of gates should rest with them.

Terms and conditions of purchase

Boundary fencing

[39] The most important and difficult question is that of the proposed obligation on the purchaser to fence the croft. Mr Kermack voiced a theory that the request for such a condition was deliberately intended to stop Mr Cameron buying the croft. It can readily be understood that the cost of fencing might deter a crofter from considering purchase. But it is now a routine practice of the Court to require a tenant who is buying his croft to fence it. He is taking the land out of the landlords’ estate. If he intends to keep stock on his land he will require to prevent that stock from straying onto adjacent land in respect of which he has no rights. In modern agricultural practice, control of stock is seen as an important aspect of bio-security. It is an important element in measures for animal welfare and security of the food chain. It is, of course, the well established method of delineating boundaries. We see no basis for imputation of a sinister motive.

[40] The landlords recognise that the fencing would be expensive. Although Sir Crispin’s primary submission was that normal practice should apply and that the tenant who was taking the land out of the estate should fence it, he intimated that the landlord was reluctantly prepared, if the Court thought it necessary, to share the cost of the fencing in this case. Although he stressed that his main contention was that the normal practice should be followed, we are satisfied that in the circumstances his fall back was a sensible concession. It is an important feature that the fencing would be a boundary fence. However, the concession does not wholly remove the difficulty.

[41] Although it has become the standard practice of the Court to require a purchaser to fence, this is not based on a rule of law. There is no doubt that we have a discretion as to the conditions to be imposed. Mr Kermack suggested that some assistance was to be found by consideration of authorities relating to the fencing of resumption areas. It was suggested that similar issues arose. The Court usually requires the landlord to fence but does not always do so. He referred to various examples including Fojambe v Crofters of Melness; Noble v Breakish Common Grazings. These examples related to fencing of land to be taken for road building. The issues were essentially those of public safety and the potential loss of stock. We do not accept that they provide direct guidance in circumstances such as the present although they reflect a willingness by the Court to look at individual circumstances.

[42] At the heart of Mr Kermack’s submission was the proposition that nothing was really to change. The crofter at present had no right to let his flock go onto adjacent land but was allowed to do so and it was not suggested that this had given rise to any difficulty. Mr Cameron’s flock is looked after by Mr MacKay who has the adjacent croft. It can be assumed that he is not pressing for any fence at present. If Mr Cameron’s sheep can run freely to the west they would, of course, be able to get round any fence to the north. The croft to the north is substantially occupied by woodland. This has been fenced but the fence is not on the boundary.

[43] There is no doubt that fencing the march would be an expensive exercise. Mr Kermack suggested that a six figure sum would be required. That is not beyond the bounds of possibility. It was not disputed that grants would be available and, if the landlord contributed half, the cost to the crofter might be more likely to be of the order of any payment he might expect under sec 21. However, it should be made clear that we see that as a matter wholly irrelevant to this particular question. It is just by chance that the landlords have a concurrent resumption application. The question of fencing on purchase must be viewed on its own. As well as expense of construction Mr Kermack told us that weather can be severe on the top of mountains and he asserted that the first winter would “flatten it”. Fences do, of course, survive in exposed places but we accept that such a fence might well have comparatively high maintenance costs. These would be shared.

[44] The cost of fencing in hilly areas depends not only on the extent of drilling required to insert secure posts but on the contour lines. Using high tensile wire it may be possible to fence quite lengthy areas with far fewer posts than might be expected by those familiar with typical low ground fencing. But this is very dependent on contour. If the ground in question is uneven more support posts will be required. It may be misleading to express any figure but, for avoidance of doubt, it may be said that we recognise that, allowing for contribution by the landlord, and for grant assistance, the crofter may face a bill of well over £20,000. If no grant is available the cost will, of course, be much higher.

[45] We have no doubt that, in modern farming practice, fencing is required. Crofting practice with shared common grazings is an exception but it is rare to find in-bye croft land unfenced. The unusual feature here is the size of the croft. However, if Mr Cameron is prepared to take on the responsibilities of ownership, we have concluded that he should also have to accept responsibility to fence.

[46] Accordingly the purchase will be conditional on the tenant fencing the boundary to north and west with provision of suitable gates or grids where the boundary meets the track at the west and at the north. This will be subject to agreement by the landlord to reimburse the crofter to the extent of one half of the net cost.

Standard security

[47] The parties were agreed that the Court should pronounce an Order under section 13(4) making it a condition of the purchase that the crofter grant a standard security in favour of the landlord to secure any sum which may become payable to the landlords under the so-called “clawback” provisions of section 14(3). However, the landlords explicitly proposed that this would have first ranking. This was opposed by the tenant, principally on the ground that the Act did not specify a first ranking. We heard some discussion to the effect that it would be unfair to insist on first ranking. The crofter might have to borrow to pay the purchase price and would wish to be able to give the lender a good security.

[48] We have little doubt that Parliament intended or assumed that the landlord would have a first ranking if the Court simply pronounced an Order in terms of section 13(4). A crofter cannot create any standard security before he obtains title. There might well be circumstances where, if he had to borrow to settle the purchase price, he would be able to make an arrangement with his landlord as to ranking. The landlord would receive the benefit of any loan in the shape of the price and be content to rank second in respect of his own claim which would be a conditional one

[49] It was not contended that it was obligatory for the Court to make an Order for a standard security. If it is a matter for discretion, there might be circumstances in which the Court would expressly control the sequence of ranking. But, on any view, this could not be done in abstract. In the present case we see no need to make explicit provision. We shall simply include the condition that the crofter grant a standard security to secure any sum which may be payable under the clawback provision.

Access over the croft

[50] For avoidance of doubt it should be said that the landlords should be entitled to pedestrian and vehicular access as necessary for the purpose of erecting, inspecting, maintaining and replacing fences. We did not understand that to be disputed.

[51] The landlords proposed that there should be a reservation of rights of access from the N-S track to the resumption area. This was not opposed, as such, but it was contended that, as the landlords had public rights of access under the Land Reform (Scotland) Act 2003, no explicit grant was necessary and no provision for this should be made. Sir Crispin voiced some reservation as to whether the rights given by the Act were apt to cover the landlords’ expected use of the access and we see some force in his contentions. However, we need not express any view on the proper construction of the 2003 Act. It is sufficient to say that we consider that there is no reason why this should not be covered by express provision whatever the scope of the Act.

[52] There appeared to be three distinct access requests. The landlords identified a path running from the N-S track which passed the Cairn in a south east direction to the 11.1 ha area. We accept that as a convenient route for pedestrian access. Such access should be included as a reservation in favour of the landlords and those authorised by them.

[53] The landlords also seek an express access route to preserve the existing rights of Mr Bond, the proprietor of the estate to the East, to take access to the E-W and N-S tracks. It was made clear that Mr Cameron had no wish to dispute this right but we do not know what line it currently takes. This is essentially a matter to be agreed with Mr Bond and we see no need to spell out any detail at this stage.

[54] As discussed above, the area to be resumed will no longer adjoin the track. Access between the track and the resumption area will be required both for any work required in connection with the woodland – including access by stock for controlled grazing purposes – and in connection with construction and then use of the bunkhouse development. We see no positive reason to restrict this access and we would be prepared to reserve unrestricted vehicular, pedestrian and stock access between the track and the resumption area.

Reservation of minerals

[55] There is no doubt that any minerals should be reserved to the landlord and, for reasons discussed in Anderson v Williamson, we think that this should include an express right to work the minerals, subject to payment of compensation for any damage caused. There seemed to be agreement that the landlords should be entitled to use rock and stone from the croft for maintenance of the tracks and we are satisfied that this should be allowed and should cover work to upgrade the track as appropriate. It should also include use of rock to create a rock breakwater.

Reservation of services

[56] The landlords sought to reserve a right of access for services. It was explained that although the evidence at the hearing had been to the effect that provision of electrical services to the bunkhouse development would be provided by generator or inverter, and that adequate water supplies were available, they wished to have the ability to take services from North Tarbet and services to the pier development. We understood the proposal to relate to services which would be buried underground and proceed on that assumption. The proposal was opposed by the tenant. It was not suggested that any such reservation would have any adverse impact on the croft but it was contended that such reservations should be refused as there was no reason for it. It was stressed that the evidence had been that all services necessary for the bunkhouse development could be provided from within the woodland area.

[57] We accept the landlords proposals as reasonable. We do not think that the wish to reserve rights for further services casts doubt on the evidence we heard about adequate services being available from within the resumed area. Reservation of a right to install further services underground does not, in any identifiable way, detract from the substance of the crofter’s acquisition of title to his croft. In Anderson v Williamson we did comment on the right of the crofter to be able to be free to negotiate for access rights. The background was one of potential exploitation of minerals by commercial third parties. We are satisfied that there is no reason to give the tenant a potential ransom value for underground services against his existing landlord. There is a clear benefit for the landlords in being able to provide better, more secure services, or simply back-up services in case of emergency. Further, it may be observed that use of a generator for electricity creates noise. It would plainly help preserve the tranquillity of the croft if electricity generation was limited to the north. When we visited North Tarbet we found examples of the difficulties encountered in obtaining reception for television and telephone purposes. Lengthy cabling has had to be installed. It might well be that, to obtain suitable reception at South Tarbet, it will also be necessary to install aerials, perhaps on North Tarbet. We think it entirely reasonable for the landlords to have a reserved right to make a connection to such aerials.

[58] It may be noted that the landlord would have two potential corridors for such services within the retained land; the solum of the N-S track and the whole land to be resumed at the east of the croft. However, installation of services is likely to be of marginal economic utility at best and we think it entirely sensible for the landlords to have reserved a right to run services in whatever may be the most efficient route, whether that involves a supply from North Tarbet or, perhaps, a supply from the bunkhouse area the pier. It seems to us that availability of power and lighting at the pier can only be seen as beneficial. Provision will, of course, have to be made for compensation to the crofter for any loss or damage caused by the landlords’ operations.

Servitudes in favour of the crofter

[59] It was agreed that a right should be reserved to the crofter to use the existing track, pier and slipway and that there should be shared maintenance obligations based on use. We heard discussion of possible restrictions on his right. We readily accept the landlords’ submissions that purchase should not lead to any significant increase in the burden imposed by any rights of access and we have no doubt that there are circumstances in which some restrictions are appropriate. However, we consider that the dominant factor must be the potential impact on the landlords’ reserved land. In this case we see no reason for any express restriction. Mr Kermack suggested that the crofter should be found entitled to access “as presently enjoyed”. That would probably be more than adequate to meet the landlords’ apparent concerns. However, we aim to impose heritable conditions which are reasonably explanatory on the face of them. Although there may be room for doubt as to whether reservation “for crofting purposes” can be said to be entirely self-explanatory having regard to the wide scope of that expression under modern legislation, we think it must suffice in the present context. Access will also be required for the existing house. It should be added that we see no reason to seek to limit the extent of residential use. The impact on the landlords’ subjects will be limited to use of the track and this is covered by the agreed repairing obligation. We see no need to control residential use in the present case. It will be covered by planning legislation. The crofter should have access, pedestrian, stock and vehicular, for residential and crofting purposes over the track from Bracorina and from the pier and slipway as well as over the N-S track.

Summary of findings

[60] For convenience we summarise our various findings. We deal first with the detail of the areas which we would be prepared to authorise to be resumed.

Resumption

a) We are prepared to authorise resumption of what the crave refers to as the 11.1 ha area under exception of the area shown shaded blue to the north and west of the blue line as shown on the plan, production 132, a copy of which is appended hereto.

b) We shall authorise the landlords to establish the fence on a line as near as may be to that shown by the red line on the photographs “woodland corridor” attached to their letter of 15 March 2011 (production 123).

c) We shall allow the landlords to resume land within a radius of 10 metres of each corner of the existing pier and reserve a right of access for construction and maintenance of a breakwater to the south of the pier.

d) We shall allow resumption of a 3.5 metre strip centred on the centre of the existing track.

Landlords’ rights in relation to tracks

e) The landlords should have a right to enter the remaining land to carry out any work reasonably required for drainage, support, maintenance and upgrading of the N-S track.

f) The landlords should have rights of pedestrian and vehicular access over the E-W track together with rights to maintain and carry out reasonable works of upgrading. The rights should include right to carry out work on adjacent land as reasonably required for drainage, support, maintenance and reasonable upgrading of the track.

g) Both parties should have right to carry out reasonable work to improve the tracks at their own expense.

h) The shared maintenance obligation should apply to any upgraded parts as well as to the track in its present state.

Terms of resumption

i) The landlords should fence the resumed area to the east. Future maintenance of the stock fence should be shared equally but the landlords should be wholly responsible for elements of cost attributable to the deer fence. The onus should rest on the landlord to demonstrate the element of repair properly attributable to repair and maintenance of the stock fence. Liability for maintenance of gates should rest with the landlords.

Terms of purchase

j) The purchase will be conditional on the tenant fencing the boundary to north and west with provision of suitable gates or grids where the boundary meets the track at the west and at the north. This will be subject to agreement by the landlord to reimburse the crofter in one half of the net cost. The landlords will require to share equally in costs of maintenance.

k) The purchase will be subject to the condition that the crofter grant a standard security to secure any sum which may be payable under the provisions of sec 14.

l) There should be reserved an express right of pedestrian access to the landlords and those authorised by them over the path running from the N-S track past the Cairn and to the 11.1 ha area.

m) There should be reserved to the landlords and those authorised by them unrestricted vehicular, pedestrian and stock access between the N-S track and the resumption area.

n) Any minerals should be reserved to the landlords with right to work the minerals, subject to payment of compensation for any damage caused.

o) The landlords should have right to use rock and stone from the croft for maintenance of the tracks, including reasonable upgrading and for creation and maintenance of a breakwater to south of the pier.

p) The landlords should have right to lay underground services through the croft with provision for compensation to the crofter for any loss or damage caused by the landlords’ operations.

q) The crofter should have pedestrian, stock and vehicular access, for residential and crofting purposes, over the track from Bracorina, the N-S track and from the pier and slipway.

Further procedure

[61] Many issues were covered at the recent hearing and in the correspondence produced and referred to as part of the submissions at that hearing. We have attempted to dealt with all matters which we understood to be in dispute. There will require to be some form of procedure relating to issues of compensation and to entitlement under section 21. We have incorporated our main findings into our Order in order to avoid any confusion in relation to the availability of special case procedure at this stage. But, if we have not covered any issue in sufficient detail to allow the parties to agree the appropriate conveyancing, we would hope to be able to deal with any outstanding points on the basis either of short written submissions or, if necessary, a further hearing.

[62] We understand that, in light of our main finding in relation to resumption of the woodland area, the landlords are prepared to abandon their challenge to the status of the land in the other applications. They do not wish to do so until satisfied that our decision has become final and unchallengeable but recognise that we would not expect to authorise resumption while the status of the subjects as a croft remains uncertain. They accordingly propose that we should conclude this application by pronouncing a formal Order conditional on their abandoning the other actions once the time for special case procedure had expired. We did not understand Mr Kermack to advance any substantive opposition to the procedure proposed by Sir Crispin but he renewed his contentions to the effect that the whole procedure adopted was illogical. He contended that the landlords should be forced to abandon the other applications without more ado. We think that, essentially, Mr Kermack’s position is based on the proposition that the other actions manifestly have no substance. However, we cannot deal with that contention in the present process. We dealt with the wider procedural issues in our Note of 17 May 2010. We do not think it will be necessary to pronounce any conditional order until financial matters arising under sec 20 and 21 are resolved but we would be prepared to consider further submissions if the landlords wish.

Expenses

[63] The landlords sought expenses of both actions on the basis that expenses should follow success. They also contended that it would be reasonable to be awarded expenses because of the tenant’s attitude to negotiation. For the tenant it was argued that the landlords should be found liable as it was the tenant who had enjoyed the substantive success. It was also submitted that expenses should, in any event, follow the established practice that, even where unsuccessful, a tenant who had acted reasonably in resisting resumption should be entitled to expenses against the landlord.

[64] We consider that the principle of expenses following success is the appropriate starting point although it is well established that various factors can properly lead to a departure from this principle. It is worth keeping in mind that, although reference to expenses “following success” is a convenient shorthand, a more reliable way of approaching the matter is to consider who caused the litigation. Where a person has been put to expense by the need to litigate to establish or defend a right it is normally appropriate that he be entitled to the expense incurred.

[65] One factor which may require some departure from this dominant approach is the special position of resumption. In Kennedy v Stewart & Others 2008 SLCR 271 we reconsidered the established practice that a successful landlord in a resumption should be found liable in the tenant’s expenses unless there were special circumstances. We said, in effect, that the practice could be taken to continue to apply but we pointed out that there would be many circumstances which might justify variation; that the question of expenses in resumption required a discriminating approach; and that it would be misleading to assume that the practice was of much weight where disputed issues went beyond run of the mill matters.

[66] On reflection it can be said that the reference to a “run of the mill” case might not have been entirely helpful. In modern times there have not been a sufficient number of opposed resumption cases to allow a clear picture of a run of the mill case to be readily understood. An example of what we had in mind might be of assistance. In a straightforward case the crofter might make no attempt to dispute that the landlord’s purpose was, in itself, reasonable but might argue that it was unreasonable having regard to the needs of the croft. He would have to put before the Court material relating to the croft but would not require to challenge the detail of the landlord’s purpose. The Court would be left to make an assessment of the weight to be given to the conflicting interests in determining overall reasonableness. In such a situation the practice of requiring the landlord to pay for the crofter’s expense may be thought to be reasonable. However, in a case where the crofter’s approach involves a full and unsuccessful attack on the reasonableness of the landlords’ purposes, it is less easy to see why the landlord should have to pay for everything. There may be various intermediate positions such as finding that the unsuccessful tenant should not have to pay for the landlords’ expenses or by limiting his liability in that respect.

[67] Other relevant factors justifying departure from a finding that expenses should follow success would be any unreasonableness in the conduct of the litigation as such or inefficiency in the way in which it has been presented. In the present case, apart from a dispute as to where success can properly be said to lie, the main factor founded on by the landlords related to the question of steps taken to negotiate. In this respect, the landlords relied on dicta from McKie v Scottish Ministers. Before looking at the detail of the present case it is appropriate to look at that case. It related to the scale to be allowed on taxation. We think that this can be distinguished from the issue of primary liability. A decision to apply a special scale against a losing party is in effect a sanction or penalty. The question of modification of a successful party’s entitlement should not be regarded as a penalty but as a question of whether it is reasonable for the losing party to pay for particular aspects of the winning party’s expenditure.

[68] In McKie the Court said: “In its consideration of the reasonableness of a party’s conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party’s behaviour before the action commenced, the adequacy of a party’s preparation for the action, the strengths or otherwise of a party’s position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example, to progress or delay the resolution of the dispute”: para [3]. In other words the passage founded on simply narrates factors which might be taken into account in assessing unreasonable conduct.

[69] The Court in McKie did not expressly mention negotiation. Failure to negotiate can be described as conduct but we have some difficultly in seeing the relevance of general assertions of unwillingness to negotiate. If a person opposes another’s claim unsuccessfully he will be liable in expenses. It is not clear why he should be further penalised on the basis that if he had not been opposed to it things might have been resolved without litigation. We accept that there may be circumstances where particular aspects of a negotiation are relevant to expenses. For example, where a case can be broken into distinct parts, evidence of an offer to deal with one part which should have been accepted and could have been accepted without affecting his stance on another part may well be relevant. But a general assertion that negotiation could have resolved the problem might be properly understood to be no more than an admission that the person making this assertion has been claiming more than he needed to. We are, of course, aware of cases in England where the refusal of one side to enter an offered process of mediation or alternative dispute resolution, has been thought relevant to costs. But the traditional way of dealing with the unreasonableness of an opponent’s position is to make a tender or offer of some sort. In effect, the question then becomes an aspect of the fundamental rule. Whose actions caused the need for litigation? If a person’s position is that he does not accept the other side’s best offer, he is usually thought entitled to litigate rather than take time to find out whether such a “best offer” can in fact be improved. No question of mediation arises in the present case and it is sufficient to say that we are not yet persuaded that this should, in effect, be made compulsory by being treated as a factor relevant to expenses. It need hardly be added that we would hope that all legal advisors would give serious consideration to use of mediation and advise their clients of its possible advantages without need for such compulsitor.

[70] On the primary issue of success, it can be seen that in the resumption action the parties were in dispute over three distinct areas with three quite distinct purposes. It now appears that there was an overlap of purposes in relation to one of these areas, the 11.1 ha area. We think it proper to make our assessment of expenses on the basis of the tenant’s success in restricting that area as discussed above. But, in relation to expenses, that is not a major element. The woodland can still be treated as a separate claim and we think it reasonable to continue to discuss the matter in terms of three distinct areas and purposes. The landlords clearly enjoyed substantive success in relation to the 11.1 ha area and that was a major element of dispute. The tenant was successful in relation to the proposal to resume land for the purpose of creation of a smallholding. He conceded the track and pier and no significant time was spent on discussion of these matters at the hearing. He successfully resisted the proposal to resume the Rubha Dubh. He was also successful in the purchase application but little time was spent on that issues and although we can have regard to that as part of our over-all assessment it is not necessary to make any special allowance for it.

[71] We refer to the Note appended to our recent decision in the case of Oosterhof v Scottish Ministers where we discussed the concepts of divided and partial success. Where parties are in dispute over land and the Court finds for one party in relation to one part and another in relation to another, success is properly seen to be divided. It is obvious that in assessing liability for expenses different levels of importance will have to be attached to different parts having regard to their importance and the time and effort spent on them. The fact of success in relation to two out of three areas does not necessarily lead to apportionment of liability for expenses in the same ratio. However, the fact that success was divided in this way may at least be taken as a starting point.

[72] The landlords pointed out that a substantial amount of time was taken on a legal argument in which the tenant was unsuccessful. We do not think this relevant to the issue of expenses following success. The argument related to resumption for agricultural purposes and was an aspect of the tenants defence in relation to the resumption of the small-holding area. He was successful on that issue. However, it has a bearing on the issue of modification of expenses where time has been wasted on an unsuccessful argument, an aspect of inefficient litigation. In the present case, we do not regard it as a factor which merits any modification.

[73] It was not suggested that there was anything in Mr Cameron’s conduct of the case which was unreasonable in the sense of being vexatious or being conduct which required to be met with a sanction. We did have a concern about the efficiency of the process as a whole. The expense of this litigation is likely far to outweigh any commercial interests of the parties and it is hard to avoid the impression that the process has become wholly disproportionate to their real interests. But, the landlords did not make anything of this and we do not consider it a case where we require to raise the matter at our own hand.

[74] The main element of conduct relied on related to the issue of negotiation. We have, for the reasons discussed above, concluded that it is not normally appropriate to have regard to this in determining how liability for expenses should be divided or modified, and, in any event, see no specific justification for this in the present case. The landlords’ submissions were made in the context of their basic proposition that they had been substantially successful. But, having found the tenant to be successful in relation to two areas, it is not easy to say that the tenant was at fault for failure to negotiate in relation to them. Unless he should have known that the landlords were always prepared to abandon these claims, negotiations would not have been likely to avoid litigation in respect of them. In relation to the woodland area where the tenant has been unsuccessful, that itself is the main factor and it can add little weight on the issue of expenses to say that if he had entered negotiation he might have given up his opposition at an earlier stage. In the present case it had become abundantly clear by the stage of the Sheriff Court proceedings that Mr Cameron was not likely to drop his opposition to loss of the woodland. Negotiation would simply have caused delay and expense. We think that, essentially, the landlords’ contention is based on the assumption that a more reasonable tenant would have settled the whole case. That is quite a different issue.

[75] As we have said, it is hard to avoid the impression that the time and effort devoted to this case was disproportionate to the matters in issue. It is also hard to resist the conclusion that most crofters would have had no difficulty in reaching agreement with the landlords had they found themselves in the shoes of Mr Cameron. However, that is not enough to justify a finding that his attitude to negotiation justifies special sanction in expenses. It appears that, in the earlier stages of the case, he was, at various times, on the point of reaching agreement and that the landlords spent a lot of time and effort in their attempts to effect agreement. That time and effort was wasted. However, we are not dealing with liability for time and effort spent trying to reach agreement about woodland grant schemes but with the expenses of the litigation in relation to resumption. Such expenses cannot be said to have been caused by the fact that they might have been avoided had the tenant capitulated earlier. Some of the landlords’ contentions appear to come close to that proposition.

[76] The landlords refer to the terms of their letter of 20 February 2009 in which they made an offer which they suggest “more or less reflects the present decision”. However, the letter was an attempt to persuade the tenant of the reasonableness of the landlords’ whole plans. It sought to persuade him to allow resumption of 50 acres and these plainly included the smallholding area. It is difficult to see any sense in which the proposals reflect the decision set out in our Note.

[77] When weighing the elements of success, we recognise that the landlords did have success in relation to the matters in respect of which the bulk of evidence was led. The issue of whether the importance of the wood was sufficient to outweigh the tenant’s interest in retaining the wood for shelter and nutrition of his stock was a difficult one arising directly out of the need to balance the factors set out in section 20(1). It took a great deal of time. It was complicated by the fact that the tenant did not suggest that the woodland was not important in the public interest. Indeed, he led evidence in support of its importance. The dispute was over the detail of how the woodland should be managed. It was complicated by the time spent in relation to the bunkhouse proposal. The crofter took every possible objection to the landlords’ proposals. He was unsuccessful in these matters. But, we have no doubt that the tenant’s desire to preserve the land for stock purposes was a reasonable one. No question of penalty arises. Although it transpired that Mr Cameron’s motivation may have been an objection to tourism rather than a simple concern for the interests of the running of the croft itself, there was a genuine concern about the impact of loss of the shelter area. It may be added that we think it abundantly clear that his opposition was not based on any attempt to hold the landlords to ransom in money terms.

[78] The fact that the crofter was successful on certain aspects of the claim and the existence of a special practice in relation to resumption applications appear to us to be the main factors for consideration. Put shortly, we do not consider that the practice in routine resumptions is of sufficient weight in the present case to provide a justification for a finding that the crofter be entitled to his whole expenses against the landlords in respect of matters where the landlords were clearly successful. On the other hand we accept that the fact that the tenant was reasonably resisting removal of land from his croft is an important relevant factor. We have come to the view that weight can properly be given to it by accepting that he should not be found liable in expenses despite his unsuccessful challenge. Beyond that, we consider that this factor can be kept in mind when making an assessment of relative success and failure. We should approach that on a broad assessment but seek to ensure that if we should err in making such assessment, any error tends in favour of the tenant.

[79] This case had a long and complex history caused largely by changes in the landlords’ proposals. Although they seek credit for reducing the land initially sought in order to try to meet the tenants requirements, another way of looking at the matter is simply that they asked for too much in the first place. In the circumstances of this case we consider it appropriate that the crofter be found entitled to his expenses in full, except insofar as already dealt with, in relation to both actions up to and including 15 October 2010 – the Friday before the start of the hearing in Fort William. In respect of the hearing and related procedure up to intimation of the Order of 1 February 2011 the crofter should be found entitled to recover expenses of 40%. For avoidance of doubt, it is our intention that expense directly related to the hearing such as travel and accommodation, payments to witnesses for their attendance or payments in respect of their accommodation should be treated as expenses of the hearing even if disbursement was made before 15 October. Parties were agreed that expenses of procedure leading to the recent hearing should be reserved for further consideration.

Uplift

[80] The tenant sought an uplift and justified this by reference to the various grounds for uplift set out in the Table of Fees except those relating to value and to steps taken with a view to settlement. The landlords accepted that if the tenant was found entitled to any expenses, a small uplift might be appropriate in respect of the skill and specialised knowledge of the solicitor. The other grounds for uplift were disputed. We consider that the material relating to the importance of the woodland was complex and out of the normal run of documentary evidence but the issues were not of any particular difficulty in themselves and the tenant was unsuccessful on these matters. We also accept that there was a degree of complexity about several other aspects of the case and some potentially difficult issues of law arose. Whether it was necessary to explore them all before us is open to question but we have no doubt that they all required to be considered as part of proper preparation. We do not consider that the locus of the hearing required an uplift nor that the case could properly be regarded as raising issues of substantial importance to Mr Cameron. We have no doubt that he himself regarded his dispute with the landlords as a matter of great importance but we consider an objective assessment is appropriate in the present context.

[81] In assessing the appropriate uplift we are aware that accounts in the Land Court almost inevitably fall to be prepared on a detailed basis. The block fees appropriate for work in the Sheriff Court are not, in practice, appropriate for the Land Court. While we recognise that substantial uplift may, occasionally, be appropriate in relation to block fees, we must have regard to the fact that in a detailed account solicitors will be able to charge for time spent dealing with voluminous productions and complicated evidence. Even in a difficult and complex case, many items of work charged are of a routine nature. The uplift is applied to them all. It will apply to the purchase application. In the circumstances of these cases we consider that an uplift of 20% is reasonable.

Witnesses

[82] We accept that Mr Kirkham and Mr Sidgwick should be certified as expert witnesses. The tenant also sought certification of Mr Macmillan. On the face of it, he qualified as an expert but the landlords challenged the leading of two experts as unnecessary and we are entitled to have regard to this when considering certification.

[83] We see no reason to apply a test of necessity but, even applying a wider test of reasonableness, we have not identified any specific reason for leading a second expert to cover ground which Mr Sidgwick had been led to speak to as an expert. We accept that Mr Macmillan spoke to certain matters of detail which Mr Sidgwick did not cover. However, it was not suggested that this was necessary because of any deficiencies in Mr Sidgwick’s level of expertise. We are not persuaded that it was reasonable to have two experts. Mr Sidgwick covered wider ground and it is appropriate to certify him and not Mr Macmillan.

Counsel

[84] Although we have not made a finding in favour of the landlords, it may be appropriate to add that we would certified the case as suitable for the employment of counsel. The case was characterised by the complex detail of expert evidence and the detail of evidence led in relation to the landlords’ complicated plans. However, we do not consider that it raised a level of difficulty which justified employment of senior counsel.

Certification of landlords’ witnesses

[85] For completeness we should, perhaps, also deal with the question of certification of Mr Baxter Cooper and Mr John McDiarmid. The certification of the latter was not opposed but it was contended that as Mr Baxter Cooper had carried out his survey as part of the estate’s development of their management plan rather than for the purposes of giving evidence he should not be certified as an expert witness. We accept that it is necessary to consider the role in which work was done. Mr Baxter Cooper is a highly regarded expert in the popular sense of that term but that, in itself, would not be sufficient to justify certification as an expert for the technical purposes of taxation of expenses. The primary question is whether the witness carried out special investigation for the purpose of giving evidence. In the present case Mr Baxter Cooper made a visit to the site on 5 August 2010 and then prepared a report. On the face of it these actions were solely for the purpose of giving evidence and he qualifies as an expert witness. We are satisfied that he would appropriately be certified as such.

For the landlords: Sir Crispin Agnew of Lochnaw QC; Messrs Macphee & Partners, Solicitors, Fort William

For the crofter: Messrs Turcan Connell, Solicitors, Edinburgh