Decision of the Scottish Land Court

Samuel Thorburn (Applicant) v Gordon Gibson and Others (Respondents)

Case reference SLC 162/12
before
Lord Minginish, Chairman, and Mr Angus Macdonald
26 October 2015

[1] By our order of 20 August 2015 we granted the craves of this application. We did not deal with the question of expenses but ordained parties to lodge motions and submissions thereanent within 21 days. At paragraph [137] of the note attached to our order we explained that the only hesitation we had about simply granting the applicant his expenses, on the normal principle that expenses follow success, was that we were considering whether it would be appropriate to award expenses against the first respondents on an agent and client, client paying, basis. That was because of the way in which the case had been conducted by them or on their behalf and it was in relation to that question that we invited further submissions.

[2] We received submissions on behalf of the applicant by way of his agent’s letter of 9 September 2015 in which they did indeed move us to grant an award of expenses on the foregoing basis. They set out reasons in support of that.

[3] On 11 September the court received an email from Mr Colin Gibson requesting time to allow his parents to take legal advice. He explained that his parents’ health had deteriorated considerably but that Mrs Gibson and a social worker were trying to access a lawyer to assist.

[4] On 16 September a further email was received from Mr Colin Gibson saying that his mother had suffered a heart attack the previous Monday night and that they were awaiting the chairman of the court’s decision as to whether further time was to be allowed for his parents to consult a lawyer. Meantime, on 15 September, the court had written both to Mr and Mrs Gibson and to their son, Colin, saying that no decision on expenses would be issued before 28 September and that any written responses received before that date would be taken into account but that it would not be issuing a formal order to extend the time limit for submissions. That information was reiterated in an email from the court to Colin Gibson on 16 September.

[5] As it happens pressure of other business has meant that we have not been able to deal with this question until now. The respondents have, therefore, had an extended period within which to obtain legal advice and, if so advised, make further submissions. On 26 September Colin Gibson emailed the court requesting a further “4 to 6 weeks” for his parents, severely incapacitated as they were by ill-health, to respond to the issue of expenses through a solicitor. He reiterated the recent history of his parents’ declining health. He said that the process of engaging a solicitor had been halted thereby. On 28 September the court received a hard copy letter dated 25 September to the same effect. On the same date the court emailed Colin Gibson saying that, although not minded to formally extend the period of time allowed for responses, equally it had not finalised its decision on the matter and anything received in the interim would be taken into account. Again on the same date Colin Gibson emailed the court, asking for confirmation that his parents’ application for further time was being formally refused. The court responded on the same date to the effect that the application had not been refused and that the court’s position continued to be that anything received before its decision had been issued would be taken into account. In that regard it is worth quoting the second paragraph of the Depute Clerk’s email:-

“In this case the Court considers that there have been a great many delays already, which have adversely affected Mr Thorburn as well as your parents, and in normal circumstances a decision would have been made by now. Instead, the Court has taken the ill health of your parents into account and is prepared to accept a late response from them if this is made as soon as possible. The final paragraphs of the Note attached to the Order of 20 August explained the information the Court requires. We appreciate the difficulties you and your parents have suffered but this matter does need to be given priority.”

[6] Mr Colin Gibson’s response to that was an email to the court on 29 September in which he asked the court to confirm the length of time it had taken Mr Martin’s executors to advise the court that Mr Martin had died, a matter of complete irrelevance to the question of expenses as between Mr and Mrs Gibson and the applicant, and saying that his brother and he would “seek to have solicitor meet with (their) parents and reply on their behalf”. We have heard nothing further.

[7] The situation is, therefore, that we have a motion on behalf of the applicant for an award of expenses on an agent and client, client paying, basis and no contrary submission from or on behalf of Mr and Mrs Gibson. We have no hesitation in granting that motion for the following reasons.

[8] At paragraph [138] of the note attached to our order of 20 August we explained, for the benefit of Mr and Mrs Gibson, the significance of an award of expenses on this basis and the reasons for which such awards are made. We refer in particular to what was said by Lord Hodge in McKie v The Scottish Ministers 2006 SC 528 at 530 to the effect that expenses on this basis are awarded “where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense” and his Lordship’s statement of the factors which could be taken into account in the making of such an award, including “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 and the way in which a party has used court procedure to delay the resolution of the dispute”. All of these factors feature in Mr and Mrs Gibson’s conduct of this case but it is convenient to divide the history of matters into two chapters, what took place before the application was lodged and what has taken place since.

Before the application was lodged

[9] The events which led to this application began almost 11 years ago when, on 17 December 2004, Mr Thorburn was served by sheriff officers with a letter from Messrs Harper Macleod, solicitors, on behalf of Mr and Mrs Gibson saying that he had been using their grazing without consent, had used and damaged the bothy on their land and had made threatening telephone calls to Mrs Gibson.

[10] Having been so served, Mr Thorburn consulted his then solicitor Mr Sorley Henderson, of Messrs Ferguson MacSween & Stewart, solicitors, Portree who replied on his behalf by letter dated 13 January 2005 pointing out that Mr Thorburn was the crofting tenant of numbers 13 and 14 Ferrinquarrie, explaining whereabouts these crofts were situated, and saying that Messrs Harper Macleod’s clients had misunderstood the extent of 5 Ferrinquarrie.

[11] That letter was followed up, on 18 January 2005, by a further letter from Mr Henderson, this time enclosing a plan of the crofts in Ferrinquarrie, including numbers 5, 13 and 14. The two final paragraphs of that letter read as follows:-

“It is therefore beyond any doubt that your clients have no interest in the ground to the south of the access track on which the bothy is situated.

Please confirm that they accept that this is indeed the case and that no further action is required by our client to assert his right of occupancy in terms of the Crofting Acts.”

[12] Had Mr and Mrs Gibson responded to that letter by properly investigating the position this dispute need not have gone one step further.

[13] Mr Henderson, for his part, did research matters properly. On 27 January 2005 (production 24), he wrote to Messrs Macleod & MacCallum, solicitors, Inverness, acting on behalf of the Husabost Estate (the landlords of Ferrinquarrie), explaining the position and saying that he suspected that the conveyance of croft 5 to Mr and Mrs Gibson in 2000 had inadvertently included Mr Thorburn’s holding. This is, as it quickly turned out, precisely what had happened.

[14] On 27 January 2005 Messrs Harper Macleod sent Messrs Ferguson MacSween & Stewart a copy of Mr and Mrs Gibson’s title (production 25). It confirmed that they owned the land which Mr Thorburn claimed to be in his tenancy. On 2 February 2005 Mr Henderson responded to Messrs Harper Macleod explaining the error that had taken place when croft 5 had been conveyed by the Estate to Mr and Mrs Gibson. The first paragraph of his letter (production 28) sets out very clearly what had happened. The second paragraph begins by stating that his firm had no doubt that Mr and Mrs Gibson had been acting in good faith when they had taken title to the land tenanted by Mr Thorburn but they must now understand that Mr Thorburn had a secure tenancy of part of the subjects conveyed.

[15] On 14 February 2005 Mr Henderson again wrote to Messrs Harper Macleod saying that it seemed to him that “the straightforward way of resolving the situation (would) be for your clients to grant a conveyance to Mr Martin of number 14, otherwise Macleod & MacCallum have suggested that Mr Thorburn can protect his position by applying to the Land Court for an order declaring the boundaries of his croft” (production 30). Mr Henderson goes on to point out that such a course would involve further expense and should be “avoided unless, of course, your clients insist that the ground which Mr Thorburn contends is tenanted by him and which comprises No. 14 Ferrinquarrie was previously part of the croft tenancy of Number 5”.

[16] At some point at or around this time, Mrs Gibson appears to have contacted Messrs James Stewart & Co, solicitors, Inverness who had acted for her and her husband in their purchase of 5 Ferrinquarrie. On 5 April 2005 these agents wrote to Messrs Macleod & MacCallum (production 48) saying that, from the file dealing with their purchase in March 2000, it appeared that the feu disposition had been drafted on the basis of a plan supplied by Mrs Gibson. They asked Messrs Macleod & MacCallum on behalf of the Estate, to clarify matters. On 5 May 2005 (production 53) Messrs Macleod & MacCallum replied to the effect that their understanding was that the Estate proprietor, Mr Martin, “now accepts that the croft lies wholly to the north of the track”. That is a reference to croft 5, tenanted by Mrs Gibson, prior to her purchase of it.

[17] It appears that at that time Mrs Gibson accepted the position as explained by Messrs Macleod & MacCallum because the next item of correspondence (production 54) is a letter from Messrs MacPhee & Partners, solicitors, Fort William, the third firm of solicitors to have been consulted by her or on her behalf in the space of a year, to Messrs Macleod & MacCallum dated 14 December 2005 in which they say that it has come to their client’s attention that a portion of the land purchased by her appeared to be subject to two crofting tenancies, one in favour of Mr Samuel Thorburn and another in favour of Mr Donald MacKinnon. That position is confirmed in a subsequent letter from Messrs MacPhee & Partners to Messrs Macleod & MacCallum, dated 5 January 2006 (production 56), which says that, on further enquiry, it appears to be the case that the land disponed by Mr Martin in favour of Mr and Mrs Gibson included not only Mrs Gibson’s croft land but other land. Accordingly the documentation discloses that since as long ago as January 2006 there has been, in effect, an admission of the correctness of what has been Mr Thorburn’s position throughout.

[18] Notwithstanding that admission, however, any subsequent attempts to have the matter resolved were unsuccessful. Indeed the matter seems to have been in abeyance for a period of years until the lodging of the present application in November 2012.

Relevant matters since the lodging of the application

[19] What we do in this section is to set out the guidance given by the court, in an attempt to assist Mr and Mrs Gibson as party litigants, at various stages and the warnings they were given as to consequences in expenses should they lose the case.

[20] On 25 June 2013 Mr and Mrs Gibson moved the court to allow a period of 16 weeks for them to return to health and be fit to meet with their family on Skye and “attend to this application”. On 9 August 2013 Lord McGhie, in effect, refused that motion and ordered the respondents to lodge adjusted answers by 6 September. In the note attached to his order sympathy was expressed for the problems of the respondents but it was pointed out that the applicant was entitled to make progress. It was also said that if the respondents were not able to carry out the necessary enquiries themselves, they must get someone else to do it. The note went on to give guidance as to how matters should be focused, in order to restrict the scope of the enquires Mr and Mrs Gibson had to make.

[21] On 28 November 2013 the court issued an order accepting into process a statement by the unconfirmed executors of the late Olaus Martin and ordering Mr and Mrs Gibson to lodge any further adjustments they wished to make by Friday 17 January 2014. The note attached to this order explained very fully that rights of ownership of land do not detract from the rights of a crofter holding a tenancy over that land and that if the respondents were to contend that the assignation of the tenancy in favour of Mr Thorburn in 1989 did not relate to the land in dispute the issue would have to be resolved by a hearing with the losing party usually having to pay the costs of both sides. It, in effect, advised Mr and Mrs Gibson to consult a solicitor with experience in this field.

[22] No response to that order having been received from Mr and Mrs Gibson, on 30 January 2014 the court made a further order to the following effect:-

“Order the first respondents to intimate to the Principal Clerk on or before Friday 14 February 2014 whether they intend to maintain their opposition to the application, UNDER WARNING that if they fail to do so in clear terms the Court may assume that they no longer wish to oppose the application and may make such orders, including orders for expenses, as may be appropriate to allow the application to proceed on that basis.”

[23] Again there is a note appended to that order, the second paragraph of which says:

“The first respondents have not responded in any way to the Order or to the Note (of 28 November 2013). The next step would normally be to fix a hearing. This would involve the Court in making arrangements to travel to Skye and to obtain suitable accommodation for those staying and for the hearing itself. The applicant would be likely to incur expense for his lawyer as well as the expense of witnesses travelling to the hearing. Such expense would be wasted if the first respondents were not to present any serious opposition. In that event they would be likely to be found liable to pay the bulk of it.”

[24] Having received a letter from the respondents dated 11 February 2014, on 19 February 2014 the court ordered a hearing to be fixed but not before the end of May 2014.

[25] The note appended to that order is as follows:-

“The respondents have made clear their continuing opposition. They should have regard to the suggestions made in our Note of 28 November 2013. … More generally, the respondents should not let their hostility towards the applicant blind them to the legal issues. Our impression at this stage is that they may be at serious risk of liability in expenses in relation to the present application but there are disputed issues of fact and if the respondents have proper evidence, matters may well look very different after proof. Accordingly, we think arrangements for [a] hearing must now go ahead but we allow some time for further preparation and consideration.”

[26] By order dated 12 June 2014 the court ordered the intimation of the application to Mr Donald MacKinnon, the apparent tenant of croft 13, whose interests were also engaged by this application. In the note attached to that order, as well as dealing with Mr MacKinnon’s position, Lord McGhie said this:-

“[7] Since the Note of 13 November 2013 the respondents have done no more than send a letter of 11 February 2014 in response to the warning of 30 January. We commented on that letter in our Note of 19 February. It did not deal with the matters raised in the earlier Note. Although our rules allow the lodging of ordinary productions at quite a late stage, the request for detailed plans and photographs was intended to help clarify the pleadings and focus the real issues. They have not attempted to state their position on any conditions to be added if Mr Thorburn is found entitled to a conveyance of the land. They have not explained why they might suffer financial hardship if they had to sell.”

[27] The note concludes:-

“[9] As matters stand, there is a real risk that the hearing in July will be a complete waste of time and expense. Accommodation for two members of Court and a clerk has already had to be booked for three nights. Unless the respondents give clear notice of a relevant basis for their opposition and can lead evidence in support of that, they are likely to lose and to be found liable for the expenses of the process.”

No warning could be clearer than that.

[28] A hearing was then fixed for Portree on 23 July 2014. It was discharged by order dated the previous day at the request of Mr and Mrs Gibson because more time was needed to prepare their case and because of inability to travel to a hearing in Skye. There was then a period of discussion as to how Mr and Mrs Gibson’s difficulties as to participating in a hearing in Skye might be resolved. On 25 August 2014 we issued an order for a further date to be fixed for a hearing in Skye. As the note attached to that order, explains, Skye was the obvious place to hold such a hearing but Mr and Mrs Gibson’s evidence could be taken somewhere else, convenient for them. It was explained that they could be represented by a solicitor, although the court could not compel the employment of a solicitor, or some other suitable person capable of presenting their case. In the event they chose, and the Court allowed them, to have their case presented by their son, Colin. The final paragraph of the note attached to that order is in the following terms:-

“[5] As this application has progressed the court has endeavoured to give Mr and Mrs Gibson every assistance by way of guidance as to what they have to do to present a relevant case and has tried to accommodate the difficulties arising from their poor health. But the court has to be fair to both parties and the applicant is entitled to have his case progressed. Hence the foregoing order.”

[29] On 19 January 2015 the Court ordered the case to be heard at Portree on Tuesday 24 and Wednesday 25 March 2015. That hearing went ahead, with Mr and Mrs Gibson represented by their said son. That was followed by a lengthy procedure in relation to the possible taking of the evidence of Mr and Mrs Gibson at the residential home in which they live in Lanarkshire.

[30] An order was made for that to take place on 27 May 2015 but that was discharged, because the Chairman of the court was unavailable. A further order was then made for a hearing to take place on 7 July. That hearing was discharged on the day before at the instance of Mr and Mrs Gibson for reasons to do with their health. Numerous attempts were then made to progress matters, all of them met with requests by or on behalf of Mr and Mrs Gibson for extensions of time and postponements. Those attempts are detailed in the notes attached to our orders of 16 June and 14 July 2015.

[31] By our order of 14 July 2015 we refused the first respondents’ motion for the hearing of evidence to be delayed until the end of September and ordained parties to lodge written submissions on the basis of the evidence heard at Portree. Said submissions having been received we issued our final order, disposing of the merits of the case entirely in favour of the applicant, on 20 August 2015.

[32] It should be said that, as appears from the note attached to our order of 20 August, absolutely no defence was stated to the application at the hearing in Portree. More than that, it seemed to be accepted that Mr Thorburn was indeed the tenant of the land in dispute and Mr Colin Gibson’s complaint seemed to be one of lack of sufficient efforts having been made to resolve the case at an earlier stage; an outrageous complaint in light of the history we have described.

Decision

[33] So far as the court is concerned, that history is one of making every possible allowance in favour of Mr and Mrs Gibson, of assisting them at every opportunity to focus their attention on what was truly in dispute, of warning them of the consequences in expenses if they failed to plead and lead a relevant defence and of repeated granting of extensions of time and postponements beyond anything any other court would contemplate. They are therefore found liable in expenses on an agent and client, client pay, basis due to (i) having conducted the litigation incompetently and unreasonably, (ii) having caused the other party unnecessary expense, (iii) the inadequacy of their preparation for the action, (iv) the weaknesses of their position on the substantive merits of the action and (v) the use of the court action to delay a remedy for Mr Thorburn (in terms, at least, of whether he was the tenant of the disputed land) to which he was incontrovertibly entitled as, in effect, acknowledged by Messrs MacPhee & Partners on their behalf as long ago as 5 January 2006.