Decision of the Scottish Land Court

J & S Wight Limited (Applicant) v Joan McGowan and Others (Respondents)

Case reference SLC 16/16
before
Iain F Maclean, Deputy Chairman, and Tom Campbell
14 July 2017

Introduction

[1] On 15 June 2017 in Edinburgh we heard the submissions of Senior Counsel for the Applicants, Sir Crispin Agnew of Lochnaw, Bt, QC, instructed by Stodarts, Solicitors, Hamilton and the Solicitor for the Respondents, Hamish Lean, formerly of Stronachs, and more recently of Shepherd + Wedderburn, Solicitors, Aberdeen, at a hearing fixed to allow parties to address us on the further consequences in law of the findings in fact made by us in the Note which accompanied our Order dated 27 January 2017, and “whether any order should be granted in terms of crave 2A, and if so, what the terms of any such order should be”, in conformity with part (FOUR) of that Order. We had, in part (FIVE) of the Order dated 27 January 2017, reserved all questions of expenses meantime, but had commented, in the final paragraph [84] of the accompanying Note, that we would be happy to entertain parties’ submissions on expenses at the same hearing. We reminded parties, at the outset of the hearing on 15 June 2017, that Application RN/SLC/2/16 at the instance of Mrs Joan McGowan and Lee McGowan (two of the three Respondents in Application RN SLC/16/16) against the Applicants, had been, of consent of the parties, by Order of the Court dated 14 March 2016, sisted to await the outcome of this application, and that we would wish to be addressed also on its disposal.

[2] Our Order dated 27 January 2017 and accompanying Note were issued after proof in an application in which the Applicants, J & S Wight Limited asked the Land Court to find and declare that they had (1) a tenancy governed by the Agricultural Holdings (Scotland) Act 1991 (“the 1991 Act”) of specified parts of the holding known as Duntilland Farm, Salsburgh, Shotts (“Duntilland Farm”); or alternatively (2) a limited duration tenancy (“LDT”) governed by the Agricultural Holdings (Scotland) Act 2003 (“the 2003 Act”) of Duntilland Farm, which commenced in about January 2009 and which, on the Applicants’ averments, would not be terminable at the hand of the Respondents until January 2024; or (2A) which failing declarator in terms of either the first or the second crave, that the Applicants had “a tenancy of Duntilland Farm and to determine the terms of that tenancy”. The Applicants sought orders also in terms of a number of ancillary craves. The position of the Respondents, as set out in their Answers, was to deny that, on the facts averred, a secure agricultural lease had been established in the Applicants’ favour, their position being that the Applicants had “enjoyed a series of seasonal grazing lets over Duntilland which commenced in January of 2004, any prior occupation by them being by permission only”. Their fall-back position was that esto a secure agricultural lease had been established in the Applicants’ favour, which was denied, then it would have been, just as the Applicants had argued, an SLDT commencing in January 2004 and having effect for 5 years, which by operation of law in January 2009 defaulted into a LDT of a further 15 years enduring to January 2024. However, the Respondents offered to prove, a variation of the terms of that LDT occurred in the summer of 2009 (the removal of field 13 from the subjects of let) which was sufficiently material as to be constitutive of a new lease commencing in that year. That new lease would become a SLDT, having effect for 5 years from its date of commencement, which in 2014 defaulted into a 10 year LDT from 2009, and which would be terminable at the instance of the Respondents in the summer of 2019.

[3] Before any evidence was led, we raised with parties as a preliminary issue our reservations as to whether it was either competent or appropriate for us to entertain a crave in the terms of crave 2A, which we characterised as a “catch-all” crave. Sir Crispin explained that the reason for its inclusion was to permit us, were we to be persuaded on the basis of the evidence we heard, that a secure tenancy in favour of the Applicants had come into being, albeit not of the form or from the same starting date or with the same consequences as craved in craves 1 and 2, we could so declare. Mr Lean indicated that he was content to go along with this approach, perhaps, we speculated, because, although the Respondents had not themselves counterclaimed for any declarator, they had, within their pleadings, set out an esto case that if a lease from year to year had been established in the Applicants’ favour (which was denied), then it would be one having a different starting date and legal consequences from those described in craves 1 and 2, and the “catch-all” crave would have provided a means of giving effect to that outcome in the absence of any counterclaim for declarator.

[4] Our concerns about the form of crave 2A were two-fold. At a procedural level, it seemed to us that if, having asked the Land Court to grant declarator of lease in particular terms, an applicant took the view that the evidence adduced did not support any of his existing craves, but might support the existence of a lease in some other form or from some other starting date, the proper course procedurally would be for the applicant to formulate the crave he wished the Court to grant, and then move to amend his craves so that the declarator he was inviting us to pronounce reflected the evidence led. More fundamentally, however, we were concerned that were we, having heard evidence and the parties’ closing submissions, to come back with a decision for which neither party had contended, both parties could object that they had not been afforded the opportunity to be heard on the case ultimately sustained by us. With a view to alleviating our concerns in this regard, parties were in agreement, before we made avizandum, that should it transpire that, having considered the evidence, we were minded to decide the case on a basis other than one of those expressly canvassed by the parties themselves, we should put the matter out by order, after issuing our decision on craves 1 & 2 and in light of our findings in fact, to allow argument as to whether or not decree should be granted in terms of crave 2A and in what terms.

[5] It duly occurred that we found ourselves unable to accept the analyses of the legal effect of the evidence we heard put forward on behalf of either the Applicants or the Respondents. We did not consider that, on the balance of probabilities, the Applicants had made out a case for the grant of declarator in terms of either of its first two craves and accordingly, they fell to be refused. We rejected both the Respondents’ primary argument that the Applicants’ occupation of Duntilland Farm since 2003 could, as a matter of law, be attributed to a series of seasonal grazing lets, and their fallback position that the removal of Field 13 from the subjects of lease in 2009 was, by itself, a change in terms sufficiently material to be constitutive of a new lease. However, in the event, the view we did take of how the relevant law fell to be applied to the facts as found by us produced an outcome that was practically identical to that which the Respondent’s esto case would have brought out: in other words, we arrived at the same place as the Respondents in their esto case, albeit by a somewhat different route, namely that the Applicants had the benefit of a LDT, continuing in effect on a “first short continuation” of three years to August 2019 in terms of section 8(6) of the 2003 Act, and terminable by the Respondents at the expiry of that continuation.

The first Minute of Amendment

[6] At the hearing on 15 June 2017, we were advised that parties were in agreement that crave 2A should be amended to reflect that position, and in part (One) of the Order we granted on that date, the Applicants, of consent of the Respondents, were allowed to amend crave 2A, and that by deleting the words “and to determine the terms of the tenancy” from where they appeared and by substituting therefor the words “which is a limited duration tenancy governed by the Agricultural Holdings (Scotland) Act 2003 (“the 2003 Act”) and currently continuing from 31 August 2016 on its first short continuation in terms of section 8(6) of the 2003 Act”. We reserved our decision on expenses meantime, to afford ourselves the opportunity to reflect on the contents of the submissions we had heard.

The competing expenses motions

[7] Sir Crispin submitted that the Applicants should be awarded the expenses of Application RN SLC/16/16, subject to what he acknowledged would have to be a substantial modification of up to 50% to reflect parties’ mixed success. The Applicants had succeeded in establishing a secure tenancy against the Respondents, albeit not one of the duration contemplated by their first two craves. The Respondents’ primary position, as set out in their Answers, was that the Applicants had enjoyed merely a series of seasonal grazing lets, and that the Respondents were entitled to insist upon immediate recovery of possession of Duntilland Farm. That primary position, which was also the basis upon which the earlier Application RN SLC/2/16 had proceeded, had been rejected by the Court. Furthermore, Application RN SLC/16/16 had achieved an important extra-judicial result for the Applicants. The submission by the Respondents to SGRPID of a claim under the new Basic Payment Scheme (“BPS”) in respect of the land at Duntilland Farm had caused the Applicants severe practical difficulties, in that for so long as the Respondents were maintaining to SGRPID that the Applicants had enjoyed only a series of seasonal grazing lets, and that they, rather than the Applicants, were entitled to natural possession of Duntilland Farm, SGRPID refused to make an allocation of entitlements in favour of the Applicants under the BPS in respect not only of Duntilland Farm but also of the other agricultural holdings farmed by them. This was why the Applicants had included in Application RN SLC/16/16 a crave in the terms:

“7. For (one) interdict of the landlord maintaining or continuing to maintain to the Scottish Government that they are entitled to any allocation of basic payment entitlements or any other entitlements under the single payment scheme introduced in 2015 under the common agricultural policy in respect of Duntilland farm and (two) an order on the landlords to withdraw their current application to the Scottish Government for basic payment entitlements in respect of Duntilland farm; and for interdict ad interim.”

[8] That crave had been supported by averments, set out in paragraph 11 of the Statement of Facts in the Application, that if the Applicants’ application were not processed, the entitlements would be lost and the Applicants would suffer financial loss. The Court had, by Order dated 5 February 2016, appointed parties to be heard on the Applicants’ sundry craves for interim interdict at 10 a.m. on Monday 22 February 2016 within George House, Edinburgh, but that hearing did not take place and was subsequently discharged, the Respondents having provided the Applicants with an undertaking, enshrined in a letter from their then agents, Stronachs, dated 18 March 2016, in terms evidently reckoned by the Applicants to be suitable and sufficient for their purposes. The ensuing withdrawal of the Respondents’ claim under the BPS enabled SGRPID to process that of the Applicants and unlocked the payments that were due to the Applicants under the BPS in respect of Duntilland Farm and their other agricultural holdings. The Respondents’ agents’ letter dated 18 March 2016 was not before the Court, and Mr Lean objected to its contents being disclosed on the basis that they were protected by privilege, having been sent on a “without prejudice” basis.

[9] Sir Crispin floated a number of other possible approaches to expenses if we were not with him on his principal submission, including that we find no expenses due to or by either party, or that the Applicants be held entitled to their expenses up to the end of March 2016, with the Applicants found liable to the Respondents for the expenses subsequent to that date, subject to modification to reflect mixed success. He further moved that, to the extent that the Applicants were successful in obtaining an award of expenses in their favour, the Court, for the purposes of taxation, should sanction the employment by them of senior counsel in terms of Rule 89 of the Rules of the Scottish Land Court 2014 (SSI 2014/229)(“the 2014 Rules”). The employment of senior counsel was justified, given the difficulty and complexity of the case and its particular importance to the Applicants, which are the circumstances mentioned in paragraphs (a) and (b) of Rule 89(1).

[10] Mr Lean opposed Sir Crispin’s motion that any award of expenses should be in favour of the Applicants, and advanced a counter-motion that the Respondents should be held entitled to the whole expenses of Application RN SLC/16/16. The Applicants had failed in all of their principal craves and the Court’s findings as to the basis upon which the Applicants possessed Duntilland Farm produced an outcome practically the same as that put forward by the Respondents in their esto case, albeit arrived at by a different route. Fundamentally, the test of success here was not whether the Applicants established the existence of some form of secure tenancy as opposed to no tenancy at all, but whether they established an entitlement to a fully secure 1991 Act tenancy as opposed to a tenancy which might be terminable by the Respondents as at the end of August 2019. The Applicants were a limited company, and a limited company was potentially immortal. If the Applicants had succeeded in establishing the existence of a 1991 Act tenancy in their favour over Duntilland Farm, the Respondents would have had no prospect of recovering natural possession for the foreseeable future, if indeed ever. The Respondents, in these circumstances, had been left with no option but to contest these proceedings as vigorously as they could, and they had been successful in resisting the Applicants’ claim on a 1991 Act tenancy. If we were with him on his motion that expenses be awarded in favour of the Respondents, Mr Lean sought a 50% uplift in the fees authorised under the relevant table of fees to cover the responsibility undertaken by him in the conduct of the cause, under reference to factors (i), (ii) and (v) in Regulation 5(b) in Schedule 1 to the Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993 (SI 1993/3080)(as amended)(“the 1993 Act of Sederunt”).

Decision on expenses

[11] Rule 88 of the 2014 Rules provides, without apparent qualification in respect of the scope of the discretion conferred, that the Court “may award such expenses in a case, or in any part of a case, as it thinks fit.” Rule 90 provides that in a case where it finds a party entitled to expenses, it may fix a specific sum to be paid or may make a finding subject to such modification, if any, as it sees fit. The main principle to be applied in the exercise of that wide discretion in relation to expenses is that expenses should follow success: Gourlay v Doble & Wallace 2011 SCLR 55. That was, opined the then Chairman, Lord McGhie, a convenient shorthand for matters more fully expressed in Shepherd v Elliot (1896) 23 R 695 by the Lord President (Robertson) in an often cited passage to be found at page 696:

“The principle upon which the Court proceeds in awarding expenses is that the cost of litigation should fall on him who has caused it. The general rule for applying this principle is that costs follow the event, the ratio being that the rights of parties are to be taken to have been all along such as the ultimate decree declares them to be, and that whosoever has resisted the vindication of those rights whether by action or defence, is prima facie to blame. In some cases, however, the application of the general rule would not carry out the principle, and the Court has always, on cause shewn, considered whether the conduct of the successful party, either during the litigation, or in the matters giving rise to the litigation, has not either caused or contributed to bringing about the law suit.”

[12] Here, we are in no doubt that the Respondents are properly to be regarded as having been substantially successful in these proceedings and that they are entitled to an award of the expenses of Application RN SLC/16/16 in their favour. We agree with Mr Lean that substantial success in these proceedings was represented by the Respondents resisting the Applicants’ crave for declarator that a fully secure 1991 Act tenancy had been, in the circumstances averred, established in favour of a tenant which was a limited company, with the consequences for the Respondents’ prospects of ever recovering natural possession that he pointed out. Whilst Sir Crispin was correct to point out that the Respondents’ first line of defence had been to argue that no secure tenancy of any nature had come into existence in the Applicants’ favour, the Respondents also set out in their pleadings, on an esto basis, a fall-back position which, if the Applicants had accepted it, would have produced an outcome for them in practice almost identical to that ultimately declared by the Court after a lengthy and costly proof.

[13] In the foregoing circumstances, we consider that it is fair to say that this litigation was caused by the Applicants, and that the Respondents are entitled to an award of expenses in their favour without any modification operating in favour of the Applicants. We reject Sir Crispin’s submission that by extracting from the Respondents an undertaking that they would withdraw their outstanding claim to SGRPID under the BPS, the existence of which had held up the processing of the Applicants’ own claim in respect not only of Duntilland Farm but also other agricultural holdings farmed by them, the Applicants achieved a measure of success in the litigation that should be reflected in our decision on expenses. Sir Crispin was not in a position to state to the Court that the Applicants had made the Respondents aware, when the issue of the existence of the competing BPS entitlement claims in respect of Duntilland Farm first emerged, that the processing of the Applicants’ claim in respect of other agricultural holdings could not proceed until the Duntilland Farm situation had been resolved. More importantly, however, it seems to us that the Applicants are not well placed to complain of the Respondents having maintained to SGRPID that the Applicants had enjoyed no more than a series of seasonal grazing lets over Duntilland Farm because, as we found in fact (see, e.g., paragraphs [37] and [43] of the Note appended to our Order dated 27 January 2017), this was what the Applicants themselves had – over an extended period of time – represented to the Respondents the basis of their occupation of Duntilland Farm to be.

The Respondents’ additional fee motion

[14] Paragraph (1) of Rule 99 (Fees allowed at taxation) of the 2014 Rules provides that:

“The fees allowed to solicitors at taxation are to accord with those for the time being payable in ordinary actions in the sheriff court except in so far as the court may, as regards a particular case, order otherwise.”

As was noted by Lord McGhie, sitting as a Divisional Court, in Stott v Willox 1997 SLCR 165 at page 165, “It has been the usual practice for the Land Court to attempt to follow closely Sheriff Court practice in relation to taxation of expenses”, and in conformity with that usual practice, although the 2014 Rules do not provide expressly for the making of such applications, we have, in the past, entertained motions at the instance of successful parties for an uplift in the fees allowable under reference to the factors listed in Regulation 5(b) in Schedule 1 to the 1993 Act of Sederunt. Regulation 5(b) provides:

“The court may, on a motion made on or after the date of any interlocutor disposing of expenses, pronounce a further interlocutor regarding those expenses allowing a percentage increase in the fees authorised by the Table of Fees to cover the responsibility undertaken by the solicitor in the conduct of the cause. In fixing the amount of the percentage increase the following factors shall be taken into account:-

(i) the complexity of the cause and the number, difficulty or novelty of the questions raised;

(ii) the skill, time and labour, and specialised knowledge required, of the solicitor;

(iii) the number and importance of any documents prepared or perused;

(iv) the place and circumstances of the cause or in which the work of the solicitor in preparation for, and conduct of, the cause has been carried out;

(v) the importance of the cause or the subject-matter of it to the client;

(vi) the amount or value of money or property involved in the cause;

(vii) the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.”

[15] Rule 1(4) of the 2014 Rules provides that we are to have regard to (a) the terms of its own practice notes; and (b) practice in the sheriff court [our emphasis], in making any order in relation to a matter not expressly provided for in the 2014 Rules. Rule 1(4)(b) thus reflects a change from the corresponding rule in the body of rules which previously governed procedure in the Land Court, being the Rules of the Scottish Land Court 1992 (SI 1992/2656), Rule 107 of which had provided, somewhat less specifically, that:

“In matters of procedure or evidence which are not provided for by statute or by these Rules the Court shall have regard to the general practice of courts of law [our emphasis] so far as applicable and appropriate to the conduct of its business.”

[16] In granting a motion for an additional fee, our practice in the past generally has been both to determine whether the case for an uplift has been made out under reference to each of the factors relied upon and then to proceed to fix the percentage of the uplift we considered, in the exercise of our discretion, to be appropriate in all of the relevant circumstances. In the Court of Session, paragraph (2)(b) of Rule 42.14 (Additional fee) of the Rules of the Court of Session 1994 (SI 1994/1443) allows of the possibility of the court, on an application for the allowance of an additional fee, remitting the application to the Auditor [of the Court of Session] for him to determine whether an additional fee should be allowed, with paragraph (4) thereof stipulating that in fixing an additional fee, the Auditor shall take into account any of the factors mentioned in sub-paragraphs (a)-(g) of paragraph (3), the contents of which correspond substantially with the factors mentioned in Regulation 5(b) of the 2003 Act of Sederunt applicable in the sheriff court. It was suggested, somewhat tentatively, by Sir Crispin in the course of his submissions that we might here wish to leave it to our own auditor of court (being the Principal Clerk or any other person to whom she has delegated that role, for which see Rule 2 (Interpretation) of the 2014 Rules)) to both determine whether an uplift should be allowed, and what percentage that uplift should be, but we take the view that, having had the advantage of sitting through all of the evidence and the submissions over six days, primary responsibility for making these decisions properly lies with us.

[17] Sir Crispin very fairly conceded that, if we were to be minded to make an award of expenses in favour of the Respondents, then all three of the factors founded upon by Mr Lean in support of this element of his motion were in principle relevant in the particular circumstances of this case. His making of that concession may have been prompted by the realisation that Mr Lean’s submissions in support of the allowance of a percentage uplift in fees covered much the same ground as his own submissions in support of his motion that, in the event of our being persuaded to make an award of expenses in favour of the Applicants, we should, in terms of Rule 89(2) of the 2014 Rules, sanction the employment of senior counsel, on the basis of the difficulty or complexity of the case (paragraph (a) of Rule 89(1)) and its particular importance or value to the party represented (paragraph (b) of Rule 89(1)). He suggested, however, that a percentage uplift of 25% would be more appropriate.

Decision on the Respondents’ additional fee motion

[18] We are quite satisfied that the case for an uplift was made out by Mr Lean under each of the three heads founded upon by him. This was a highly complex cause which raised a number of difficult and novel questions. Whilst the circumstances that gave rise to the case were, as we noted in paragraph [2] of the Note which accompanied our Order dated 27 January 2017, “those which have provoked so much litigation before this Court in recent years, of a party having been permitted to keep livestock on agricultural land belonging to another with nothing ever being committed to writing to record the agreed basis of his occupation, leading to conflict when the landowner calls into question his entitlement to remain”, the difficult and novel element here was that the relevant facts and circumstances straddled not only the coming into force of the 2003 Act, which introduced significant changes to the applicable law, but also the date on which the amendments to the 2003 Act introduced by the Public Services Reform (Agricultural Holdings) (Scotland) Order 2011 (SSI 2011/232)(“the 2011 Order”) came into force. The task of applying the statutory provisions in force from time to time to the relevant facts, concerning events occurring over a period of some 14 years, required of parties’ legal representatives a high level of skill and specialised knowledge, and the surefooted manner in which both Sir Crispin and Mr Lean were able to pick their way through this legislative morass testifies to the amount of time and labour they must each have devoted to preparation in advance of the hearing. We accept that the cause was of especial importance to the Respondents, in that if the Applicants had been successful in obtaining declarator that they, a limited company, held Duntilland Farm on a 1991 Act tenancy, the Respondents’ prospects of recovering natural possession of the Farm in the foreseeable future would have been negligible.

[19] Had we made an overall award of expenses in favour of the Applicants in Application RN SLC/16/16, we would have been prepared to sanction the employment of senior counsel, and that award having gone the other way, we are equally satisfied that we should allow Mr Lean a percentage uplift to cover the responsibility undertaken by him in the conduct of the cause. We consider that an increase of 50%, as moved for by him, is amply justified. Of the factors founded upon, we consider that the most important of the three, in the particular circumstances of this case, was (v), and we would, in allowing a 50% uplift, attribute 10% to each of factors (i) and (ii) and 30% to factor (v), to reflect the relative significance we attach thereto.

The second Minute of Amendment

[20] On 12 June 2017, the Court received from the Applicants’ agents a Minute of Amendment in which the Applicants sought to introduce into Application RN SLC/16/16 a new crave and new averments. The averments narrated that the Respondents “recently” had locked a previously unlocked gate situated in the march fence between Duntilland Farm and the adjacent Mountcow Farm, thereby preventing the Applicants from taking the sheep on Duntilland Farm to the handling facilities on Mountcow Farm for routine purposes. Mountcow Farm is farmed by the Wight family through the medium of a partnership which is, of course, legally an entity quite distinct and separate from the Applicants. The Applicants averred that as part of the fixed equipment on Duntilland Farm, they were entitled to use the gate for that purpose, and their new crave was for an order ad factum praestandum on the Respondents to remove the lock, and for an interim order to that effect. The Respondents’ position, as set out in Answers lodged by them to the Minute of Amendment and as elaborated on by Mr Lean in his oral submissions, was that the Applicants had no legal entitlement to take access from Duntilland Farm through that gate to Mountcow Farm, which was owned by a quite distinct and separate legal entity, and that the Respondents had no legal obligation to provide, as part of the fixed equipment on the holding, a gate in the march fence to permit the taking of access to Mountcow Farm. The Respondents, Mr Lean submitted, had legitimate concerns that the gate, if unlocked, would be used for moving sheep belonging to the Wight family partnership from Mountcow Farm onto Duntilland Farm instead of (or as well as) moving sheep belonging to the Applicants from Duntilland Arm to the handling facilities on Mountcow Farm. We were given to understand that in discussions between parties’ agents, the Respondents had offered to unlock the gate for the Applicants on request on a number of occasions through the course of the year, the thinking behind this proposed compromise presumably being that the Respondents thereby would be enabled to monitor and police the traffic going through the gate. It was argued by Sir Crispin on his motion for an interim order, that the Applicants had set out a prima facie case for the remedy sought, and that the balance of convenience favoured the Applicants. The unlocking of the gate would restore the status quo ante, and there was no practical benefit to the Respondents in the gate remaining locked.

[21] Before hearing parties’ submissions on the merits of the Applicants’ motion for an interim order, we raised with them the issue of whether it was either appropriate or indeed competent for us to entertain a Minute of Amendment containing new matter, in the form of a crave and supporting averments, at this very advanced stage in an application in which all of the substantive issues had by now been decided. The gate in the march fence between Duntilland Farm and Mountcow Farm had not previously featured either in the pleadings or in the evidence heard, and our initial view was that it would be preferable if this new case were to be brought before the Court as a fresh application, and not as an adjunct to what were essentially concluded proceedings. Parties were, however, in agreement that they wished us, for convenience, to dispose of the Applicants’ motion in this process, and so, with some misgivings, we acceded to their request. Having heard parties on 15 June 2017, we rose briefly and then returned to the bench to deliver an ex tempore judgment, in which we ordained the Respondents to remove, ad interim, the lock from the gate in the march fence between Duntilland Farm and Mountcow Farm, but subject to modification of the wording of the Applicants’ original crave to make clear that the gate was to be used for the purpose of moving sheep owned by the Applicants (being for the avoidance of doubt the limited company J & S Wight Limited) from Duntilland Farm to the handling facilities at Mountcow Farm and return, and for no other purpose.

[22] We took the view that, whilst much remained to be said on the merits of parties’ competing positions on their respective rights and obligations in respect of the use of the gate in the march fence between Duntilland Farm and Mountcow Farm, the Applicants had said enough to establish a prima facie case for the remedy they were seeking. We were not much impressed by the Applicants’ submissions in relation to the balance of convenience, being frankly sceptical both that the Applicants could not have rigged up mobile handling facilities upon Duntilland Farm of sufficient capacity to enable them to do what needed to be done to that flock from time to time upon the holding, or that it would be any more inconvenient for them to load the Duntilland sheep onto a float and transport them along the public road to the handling facilities at Mountcow Farm than to round them up, drive them through the gate in the march fence and run them through the middle of Mountcow Farm to handling facilities located at the far end thereof from Duntilland Farm. Against that, however, Mr Lean was unable to explain why the Respondents chose to lock the previously unlocked gate in the march fence when they did (the factual basis for their “legitimate” concern that the gate might be used for sheep coming in the opposite direction from Mountcow Farm to Duntilland Farm was never divulged) and we were left with the distinct impression that the locking of the gate was an unnecessary act of provocation on the part of the Respondents, reflecting the ongoing atmosphere of animosity which exists between the parties.

Expenses of part of hearing on the Applicants’ motion for an interim order

[23] In the foregoing circumstances, we consider that the Applicants are entitled to the expenses of that part of the hearing on 15 June 2017 which was spent addressing their motion for an interim order for the removal of the lock placed by the Respondents on the previously unlocked gate situated in the march fence between Duntilland Farm and Mountcow Farm. For the guidance of the auditor of court, we reckon that it would be equitable to apportion 50% of the Court’s time that day to the Applicants’ opposed motion for an interim order, and 50% to the other business before the Court by way of the motions on expenses and disposal of Application RN SLC/2/16. We shall make no order for further procedure in respect of this newly introduced part of Application RN SLC/16/16 unless and until invited by parties, or one or other of them, to do so. We are not persuaded that any of the circumstances in which, for the purposes of taxation, the Court may sanction the employment of counsel (junior or senior) in terms of paragraphs (a)-(c) of rule 89(1) of the 2014 Rules, as yet apply in relation to this distinct and separate part, which does not appear to us to be either difficult or complex (paragraph (a)), or of particular importance (paragraph (b)) to the Applicants, for the reasons already noted, and the solicitor for the Applicants having been in attendance at the hearing with Sir Crispin, paragraph (c) does not come into play.

Disposal of Application RN SLC/2/16

[24] Parties were agreed that Application RN SLC/2/16 need proceed no further in the wake of our disposal of Application RN SLC/16/16. Sir Crispin moved for J & S Wight Limited, as the respondents in Application RN SLC/2/16, to be assoilzied from the craves thereof and for Lee McGowan and Donna Touray, as the applicants, to be found liable to J & S Wight Limited in the expenses of the application. He confirmed that he would not be seeking sanction for the employment of counsel in relation to Application RN SLC/2/16. J & S Wight Limited, in their Answers, had tabled a preliminary plea to the competency of Application RN SLC/2/16, on the basis that Mrs Joan McGowan, as one of the three pro indiviso heritable proprietors of Duntilland Farm, required to join in the bringing of the application, but one consequence of her not having done so was that any decree for expenses against the applicants in Application RN SLC/2/16 would not be prestable against her personally. Sir Crispin indicated that he would not oppose a motion by Mr Lean to amend the instance of Application RN SLC/2/16 to add Mrs Joan McGowan as an applicant, but Mr Lean refrained from doing so.

[25] Mr Lean was content that J & S Wight Limited be assoilzied from the craves in Application RN SLC/2/16. He accepted that Application RN SLC/2/16 has been entirely superseded by Application RN SLC/16/16, but argued that had it gone ahead, it would have covered exactly the same issues. As such, it should be seen in the context of the overall dispute between the parties, and upon that basis he submitted that the expenses of Application RN SLC/2/16 should be dealt with on a “none due to or by” basis.

[26] Having raised proceedings against J & S Wight Limited in the form of Application RN SLC/2/16, Lee McGowan and Donna Touray subsequently opted not to insist upon it, instead allowing it to be overtaken by Application RN SLC/16/16, in which they participated in their capacities as two of the three pro indiviso heritable proprietors of Duntilland Farm who together made up the Respondents in the later application. On 15 June 2017 Mr Lean, on their behalf, indicated to the Court that he was content to allow J & S Wight Limited to be assoilzied from the craves in Application RN SLC/2/16. We can see no reason why, in these circumstances, we should not now proceed to assoilzie J & S Wight Limited from the craves of Application RN SLC/2/16, and to find Lee McGowan and Donna Touray liable to J & S Wight Limited in the expenses of that application, and accordingly we have issued an order to that effect of even date hereof in Application RN SLC/2/16.