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
20 August 2015

[1] The applicant is Mr Samuel Thorburn of 1 Borrodale, Glendale, Isle of Skye.

[2] In this application he seeks, first, declarator that a certain piece of ground delineated in red and marked ‘14’ on a plan annexed to the application is croft land tenanted by him and known as and forming croft 14 Ferriniquarrie (the spelling used in the application; it is rendered in a number of other ways in other documentation), Glendale, Isle of Skye. He also seeks authorisation to acquire the land in terms of sec 12(1) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) and has a number of ancillary craves in that regard.

[3] The respondents are Mr Gordon Gibson and Mrs Janette Elizabeth MacLeod Ferguson Gibson, who live at 6 Elmwood Court, Bothwell, Lanarkshire. It is not in dispute that they own the land referred to in the preceding paragraph, having purchased it, as part of larger subjects believed by them to form 5 Ferriniquarrie, from Olaus MacLeod Halkett Martin of Husabost by disposition by him in their favour dated 22 March 2000. Mr Martin died on 5 August 2013.The application was intimated to his executors. They have not entered the process but one of them, Mr Derek Flyn, gave evidence.

[4] After a lengthy procedural history the case came before us for proof at Portree Sheriff Court on 24 March 2015. Mr & Mrs Gibson are elderly and were unable to travel to Skye for this hearing. Instead arrangements were made to hear their evidence at Bothwell on a subsequent date, although, as matters transpired and for the reasons given below, that never happened. By permission of the Court, in terms of Rule 100(3)(a) of the Rules of the Scottish Land Court 2014, they were represented at the Portree hearing by their son, Mr Colin Gibson. The applicants were represented by Miss Katie MacDonald of Messrs Ferguson MacSween & Stewart, solicitors, Portree.

Witnesses

[5] In addition to the applicant himself, Mrs Lorna Mitchison, Mr Donald MacKinnon, Mrs Fay Thompson, Mr Ross MacKenzie and Mr Derek Flyn gave evidence for the applicant. For the respondents Mr David MacVicar and Mr Sorley Henderson gave evidence. We found all of the witnesses to be credible and reliable.

The evidence

[6] Before narrating the evidence we would record that much of Mr Colin Gibson’s questioning was irrelevant to the matters which we have to decide and that we required repeatedly to bring him back to what was relevant. The following therefore is not an exhaustive account of the evidence given: only an account of what was relevant.

Samuel Thorburn (56)

[7] Mr Thorburn spoke to production 2, a plan of Ferriniquarrie township. It shows crofts numbered 1 to 20. He had become tenant of croft number 14 by virtue of an assignation of the tenancy of that croft in his favour by Mrs Margaret Campbell, the previous tenant, in 1989. Production 3 is the relative application for consent submitted to the Crofters Commission. He identified croft 14 on production 2. It lies directly south of croft 5, on the other side of a township access road, of which more later.

[8] Since becoming tenant he had used the croft basically for grazing. He already tenanted crofts 13, 16 and 17 Ferriniquarrie and he had about 50 head of cattle and around a thousand ewes. He had made crofting his full-time occupation.

[9] The croft comprised good fertile soil although it was boggy at the bottom. He had carried out minor drainage work. It was entered on his IACS forms and he claimed Single Farm Payment for it.

[10] Production 12 was a photograph of a gate across the access road leading to the croft. The road was known locally as “the Lonaig”. Its purpose was to provide access to the lower crofts of the township; those shown below it on production 2. He rarely used it because cattle could make a mess of the road and cars went along it. He could get his cattle on and off the croft from the river side (the southern end). The Lonaig also provided access to a holiday home at the end of it. Although he did not often use it, Mr Thorburn said that he was entitled to use the Lonaig. The gate shown in the photograph had never been locked.

[11] Production 13 was a view of croft 14 showing the red roof of a corrugated iron shed. It had been occupied by Mrs Campbell and her family in the summer months.

[12] Immediately west of croft 14 was part of croft 9. There was no fence between them but the boundary was visible on the ground. Mr Thorburn had use of this part of croft 9 for seasonal grazing.

[13] Throughout his tenancy of number 14 his landlord had been Olaus Martin. However there had come a time when he received a telephone call from Mrs Gibson, leaving a message telling him that he had livestock on her croft. He could not understand what she meant. This had been followed by a visit from Sheriff Officers with a letter telling him to remove his stock from the land. (Miss MacDonald moved to have a copy of this letter lodged at the bar and we allowed it to be received as production 69 after giving Mr Gibson the opportunity of reading it and commenting.) He had been amazed to receive it. He had instructed his solicitor, Mr Sorley Henderson, then a partner in Messrs Ferguson MacSween & Stewart, to make enquiries. Mr Henderson had reported back that Mr Martin had sold the land to Mr & Mrs Gibson, supposedly as part of croft 5. The part of croft 9 adjacent to his croft had also been included in the sale.

[14] The letter served by the Sheriff Officers had alleged that he had used Mr & Mrs Gibson’s grazing without consent, used and damaged a bothy on the land (a reference to the corrugated iron shed already mentioned) and made threatening phone calls to Mrs Gibson. He had never had stock on croft 5, he had used the ‘bothy’ but it was not on croft 5 and, as for having made threatening phone calls, he “did not know the Gibsons from Adam”.

[15] Mr Henderson had pointed out to Mr & Mrs Gibson’s then solicitors “as clearly and reasonably as possible” that a mistake had been made but that it was easily rectifiable, by return to Mr Martin of the erroneously included land. These letters had been ignored.

[16] Asked about Mr & Mrs Gibson having carried out improvements on number 14, they had planted trees on what was undoubtedly croft 5 but had done nothing on 14 or 9.

[17] Production 60 was a photocopy of a cheque from Mr Thorburn to Mr Martin together with a note saying that the sum of £27.75 included payment for 14 Ferriniquarrie “which belongs to Gibson (by default).” That part of the note had been added by, he thought, Phoebe, Olaus Martin’s sister. The cheque is dated 15 April 2006. The amount of the cheque included the rent of crofts 13, 14, 16 and 17. Asked whether he had ever approached the Gibsons with an offer to pay rent, Mr Thorburn said he had not, because the Gibsons regarded him as an imposter and you couldn’t pay rent to someone who did not accept that you were his tenant.

[18] This cheque is drawn on the account of “S Thorburn Ltd”. Mr Thorburn confirmed that he operated his crofting business through the vehicle of a limited company. That was on his accountant’s advice. He, as an individual, was the tenant of the crofts but the crofting operation was run through the company.

[19] Should the court find him to be the tenant of the land in question he would want to buy it from Mr & Mrs Gibson. However, this would be difficult as there had been an irretrievable breakdown in the relationship between the Gibsons and himself. There was no prospect of them working together as landlord and tenant. How could you, he asked, work with someone who had applied for planning permission on your croft?

[20] Possibly around six months after the visit of the Sheriff Officers a friend of Mr Gibson’s had been staying in the old ruin on croft 14 and he had shown Mr Thorburn Mr & Mrs Gibson’s title to the property: production 6. He had discussed the matter with Sorley Henderson again. They thought a genuine mistake had been made but despite numerous letters no progress had been made towards resolving the issue. He had also told Phoebe Martin about it and Donny MacKinnon, the tenant of croft 9. Everyone had been bamboozled by this turn of events. But the Gibsons had refused to co-operate in rectifying matters and he had had no alternative other than to come to the Land Court.

[21] The fact that the Gibsons had applied for planning permission, despite having been refused decrofting, for two house sites on his croft had decided the matter. It was possible that these sites would be sold to some unsuspecting purchaser, poorly advised, who could do nothing with them because they had not been decrofted.

[22] Production 35 was a copy of a letter from the Crofters Commission to Mr & Mrs Gibson’s architects explaining that the Commission had received a number of representations about their application for decrofting, all making the point that the land in question was part of 9 and 14 Ferriniquarrie, not 5. He had been one of the objectors. He had objected to the planning department as well but they were a law unto themselves.

[23] Asked by the court about production 2, it was a copy of a map from the Department of Agriculture and all the boundary markings and croft numbering had been put on it by the Department except that the red line depicting croft 14 and the shading of the Lonaig had been done by him or his agents. The map had come either from the Department or the Scottish Agricultural College, but he thought the Department.

[24] Cross-examined by Mr Gibson, it was put to him that the names Ferguson, MacLeod and MacAskill, which were all names within Mrs Gibson’s family, had crofted in Ferriniquarrie and Glendale since it had first become a parish. Mr Thorburn denied ever having heard of Fergusons at Ferriniquarrie but there were lots of MacLeods and Fergusons in Glendale. He was not, however, disputing that the Gibson family had become tenants of number 5.

[25] He confirmed having met someone in the bothy who had shown him a title deed and map. He denied telling this person, whom Mr Gibson identified as “Sgt John Wilson of 3rd Para”, that he didn’t pay rent anyway. Asked about contacting Mrs Gibson by phone, that had been before the encounter at the shed. Asked by the court as to how he had come by Mrs Gibson’s telephone number, he explained that he had done a “1571” following a telephone call from Mrs Gibson to him.

[26] Asked whether he had followed up that telephone conversation by sending documentation to prove his tenancy, Mr Thorburn said that there had been some letters backwards and forwards but they had come from his solicitors, not from him. It had not been a happy telephone conversation, Mr & Mrs Gibson had been aggressive to him and the following day the police had come. Why, therefore, would he have wanted to negotiate except through his lawyer?

[27] Mr Thorburn confirmed that he had been a police officer for 10 years. We disallowed, as irrelevant, questioning as to why he had left the police force. Asked whether Mr & Mrs Gibson had threatened him, he said that they had. Asked whether they had disturbed him in any way, he said they had caused him a great deal of discomfort.

[28] It was put to him that whilst he had instructed correspondence demanding the re-conveyance of the land to the Husabost Estate he had never asked if he could be a tenant of 14 and pay rent to Mr & Mrs Gibson. Miss MacDonald intervened to point out that the first crave of the application was to have Mr Thorburn declared tenant of 14.

[29] It was then put to him that he had not been the owner of the stock the Gibsons had asked him to remove. It was put to him that the stock was owned by S Thorburn Ltd, a company having its own separate legal identity. Mr Thorburn confirmed that the stock had been owned by the business, but the business was owned by him. Again the court curtailed questioning on this as irrelevant.

[30] There was then questioning as to the payment of rent. Only one rent cheque had been produced whereas the court (by its order of 4 March 2015) had ordered the production of all rent records for the past five years. Mr Thorburn said that he did not have the receipts but Olaus Martin’s sister was going to be giving evidence and she would confirm that rent payments were up-to-date.

[31] Asked whether he was producing IACS forms in respect of the croft, Mr Thorburn replied that he was calling as a witness the person from the Scottish Agricultural College who dealt with all his IACS affairs.

[32] Returning to the matter of rent, Mr Gibson queried whether the rent had been paid by Mr Thorburn personally, not the company. Mr Thorburn replied that rent had been paid by him personally, as an individual, until 2004 and since then by the company. To a suggestion that the rent had been paid to a person who was not the landlord, he explained that he had been waiting for someone on behalf of his new landlords to contact him. How, he asked, could he have possibly paid Mr & Mrs Gibson rent when the whole point of today’s proceedings was that they did not accept him as tenant?

[33] Mr Thorburn confirmed that the company secretary of S Thorburn Ltd was Mr Sorley Henderson.

[34] Questioned as to where the northern boundary of the croft was, whether the Lonaig was included or not, Mr Thorburn thought the boundary was south of the track and that the Lonaig itself belonged to no one. He accepted that he had never been impeded in his use of the track by the Gibsons. He rarely used it.

[35] At this point the court interjected to seek clarity of Mr Gibson’s position; of the basis upon which he was questioning the witness. Were Mr & Mrs Gibson accepting that the land in question was croft 14, were they asserting that it was part of croft 5 or was the position that they did not know? Mr Gibson said they did not know.

[36] Mr Gibson then pursued the matter of the whereabouts of the boundary between numbers 5 and 14. Mr Thorburn illustrated his understanding by reference to production 2, indicating that number 5 stopped at the north edge of the Lonaig and number 14 started at the south edge. It had always been his understanding that the Lonaig itself belonged to the Estate and was not part of anyone’s croft.

[37] He had the use of croft 9 on the basis of a seasonal grazing let from Mr MacKinnon. As to why croft number 9, on his evidence, was beside number 14 and not number 10, he said that one got those anomalies in crofting townships. It would not have been an error: it would have been done by the relevant parties at the time through the Estate.

[38] He confirmed that he had done no work on the croft other than raising cattle, apart from some open drainage done in or around 2002. His only use of it had been for cows and sheep. Reference was made to production 9, the Crofters Commission Register of Crofts entry for 14 Ferriniquarrie, showing an extent of 1.28 ha, the landlord as Mr Olaus Macleod H Martin and the tenant as Mr Thorburn. The reference to Mr Martin as landlord was now wrong.

[39] Mr Gibson suggested that the matter could be resolved if all parties acted in a spirit of resolution. If Husabost Estate had made a mistake he offered to do what he could to put it right. Miss MacDonald intervened to refer to the exchange of correspondence between lawyers, which had come to an end in 2007. Mr Gibson pointed out that this application had not been lodged with the court until six years later.

[40] Mr Thorburn confirmed that he was also the tenant of crofts 16 and 17. He had nothing to do with 15. He confirmed that his Single Farm Payment was paid to his company.

[41] In re-examination Miss MacDonald sought to clarify the boundaries of croft 14. She did so under reference to production 48, a letter from Messrs James Stewart & Co, solicitors, Inverness, on behalf of Mr & Mrs Gibson, to Messrs MacLeod & MacCallum, on behalf of Husabost Estate, dated 5 April 2005. This letter follows completion of the purchase of 5 Ferriniquarrie by Mr & Mrs Gibson, for whom Messrs James Stewart & Co acted in that transaction, and is the result of a claim by Messrs Ferguson MacSween & Stewart, on behalf of Mr Thorburn, that part of the subjects disponed forms 14 Ferriniquarrie, tenanted by their client. It enclosed the plan attached to the Feu Disposition in favour of Mr & Mrs Gibson and a township map. Mr Thorburn confirmed that the road shown on the title plan was the public, tarmacadamed, road to Borreraig. The Lonaig was not shown on that plan. That could have led to some confusion in the preparation of the plan and disposition. It appeared from the first two sentences of the letter that the Feu Disposition had been based on a plan provided by Mrs Gibson, which suggested that the mistake was Mr & Mrs Gibson’s. He would give them the benefit of the doubt and accept that it was a genuine mistake.

[42] Finally, he confirmed that he had gone on paying rent to Mr Martin. He could not pay rent to Mr & Mrs Gibson because they refused to accept him as tenant; indeed they refused to accept that the land in question was croft 14.

Mrs Lorna Margaret Martin or Mitchison (82)

[43] Mrs Mitchison gave evidence that she was the sister of the present owner of Husabost Estate, Mr John Martin. He had acquired the interest of their late brother, Olaus.

[44] She had known Samuel Thorburn ever since she could remember. She had assisted Olaus in the running of the Estate, in doing things like writing out to tenants. She was aware that Mr Thorburn had the tenancy of various crofts in Ferriniquarrie; 13 and 14 as well as others. He had inherited the tenancy (of 14 as we understood it, but that would not accord with Mr Thorburn’s own evidence) from his father who had had it before him.

[45] She did not know Mr & Mrs Gibson personally and was not related to them. She was quite certain of that.

[46] Mr Thorburn pursued animal husbandry on the crofts but she did not know the detail. She was aware that the Gibsons had acquired ownership of the land now in dispute. She had not been in Skye when the papers had been signed but she knew that Mr Derek Flyn had been involved. She had only heard about things later, when it had been realised that a mistake had been made. The land had been sold by the Estate on the basis of a plan which had been produced. The plan was incorrect in that it covered number 14 as well as number 5; it included two crofts when only one was being sold. She identified croft 5 on production 2 as excluding the area marked in red, which she identified as Mr Thorburn’s croft, croft 14.

[47] Referred to production 60, a copy of a cheque from S Thorburn Ltd and a covering slip, the writing which was not Mr Thorburn’s was her sister’s. They had both assisted in the administration of the Estate. Mr Thorburn’s family had always paid their rent absolutely on time. Asked whether rent was still being paid for number 14, she said the position was complicated because payments used to cover 13 as well as 14.

[48] There had been “huge correspondence” attempting to resolve the mistake. The Estate had asked lawyers to see if it would be possible to convey the land back but the Gibsons had refused any kind of change. The Estate had even obtained Counsel’s Opinion on the matter. Without the Gibsons’ consent there was no way to have the land re-conveyed. The Gibsons had been unwilling to agree that the land conveyed included any part of croft 14.

[49] In cross-examination Mrs Mitchison denied that she had witnessed matters third-hand. She had been there. She confirmed it was the case that the previous landlord was still taking the rent for 14. The Estate was billing Mr Thorburn for the rent for 13 anyway and he offered the rent for 14 as well. Meantime Mr & Mrs Gibson’s position had been that the land was all part of number 5, not 14. The rent received for 14 was kept in Husabost House. Asked whether it was kept in cash, she did not know the details. All she knew was that the rent paid for 13 was accepted and that for 14 either returned to Mr Thorburn or kept until Mr & Mrs Gibson asked for it. There had been no refusal to give them the rent for 14. Mr Gibson having put to her that Mr Thorburn had given evidence that the Estate had gone on accepting rent for 14, she said that she did not know exactly what the situation was. We would be better to ask Mr Thorburn himself about these matters. All she knew was that the Estate would not have accepted rent for 14 when they realised they no longer owned it. Mr Gibson having suggested to her that production 60 was clear evidence of the Estate having taken the money for number 14, she said it had not gone into the Estate’s account. She confirmed that no payment for lands no longer owned had ever been received (probably meaning accepted).

[50] There was no re-examination.

Donald MacKinnon (54)

[51] Mr MacKinnon had been born and brought up in Ferriniquarrie but now lived in Dunvegan. He had 9 Ferriniquarrie. Under reference to production 2 he identified both the main part of number 9 (the most easterly of the crofts above the Lonaig) and another part of it immediately to the west of number 14, as shown on that map. He had worked the croft with his father as Mr Thorburn had done with his. Mr Thorburn had croft 14, beside part of number 9. He had cattle and sheep on it. He also used the part of 9 which was beside 14. It had been sub-let to Mr Thorburn and to his father before him.

[52] He did not know Mr & Mrs Gibson. He did not know who had the tenancy of number 5. Nor could he tell what crofting activity was carried out on it. Asked where the boundary was between 14 and the part of 9 which was next to it, it was what they called the “green hut”. Shown production 18, he identified it as a photograph showing the top of numbers 9 and 14. As for the rest of the crofts in Ferriniquarrie, he did not know who owned what.

[53] Asked about the means of access to the lower crofts, when he had been growing up the access had come not by its present route but from between crofts 1 and 2/3. He thought the access track (which we take to be a reference to the Lonaig) belonged to the lower crofts.

[54] He had first become aware that the croft of which he was tenant may no longer belong to Husabost Estate when Sam (Mr Thorburn) had mentioned a mistake having been made in the purchase of number 5. Then Lorna (we assume Mrs Mitchison) had come to see him to explain what had happened.

[55] He had acquired his tenancy in 1983. He continued to pay rent to Husabost Estate, even although he knew they no longer owned it.

[56] He confirmed the layout of the Ferriniquarrie crofts as shown on production 2. Number 9 was the only one with land both above and below the access road. He did not know how that had happened.

[57] In cross-examination, Mr Gibson thanked the witness for attending, noting that Mr MacKinnon was currently off work due to ill-health.

[58] Mr MacKinnon confirmed that it was two or three years ago that he had become aware that the ownership of croft 9 had changed, not 10 or 15 years ago. Husabost Estate had always sent him rent invoices, right up until last year. Asked whether they had ever contacted him to tell him they no longer owned the land, he said they had told him there had been a mistake. That had been done in conversation, rather than in a letter. He and they had decided that he would go on paying rent to them and they would pass a percentage on to the Gibsons.

[59] Whilst he did not expect the witness to know the name Gibson, Mr Gibson felt sure he would know his uncle, Norman MacAskill and the Fergusons. The witness agreed that he did. The names Matheson and MacLeod were also mentioned as family names and Mr MacKinnon seemed to recognise who was being referred to. He confirmed that he would be quite happy to pay Mr & Mrs Gibson a percentage of his croft rent, proportional to the part of the croft they now owned. He had never had correspondence with them. He did not fill in IACS forms or claim grant assistance. The grazing on this part of number 9 was sub-let to Mr Thorburn for a nominal rent. He explained that his current ill-health had been caused by the crofting he had done when young. Mr Gibson expressed his sympathy and his regret that the witness had been inconvenienced.

[60] In re-examination Mr MacKinnon confirmed that his landlords for the land above the road continued to be the Martins (i.e. Husabost Estate) and for the land below the road the Gibsons.

Euphemia Christina Campbell or Thompson (58)

[61] Mrs Thompson gave evidence that she had been born in Ferriniquarrie and had been familiar with it all her life. She was the tenant of crofts 12 and 15, as shown on production 2. She had knowledge of the approximate croft boundaries. She knew Mr Thorburn. He was the tenant of crofts 13, 14, 16 and 17. He carried out general crofting activities involving sheep and cattle on these crofts.

[62] She had met Mr Gibson once or twice. One time had been in court. She had become aware that they had previously had a tenancy of a croft in Ferriniquarrie and now owned a croft there. She had become aware of that when she was upgrading the access to the crofts and Mr Gibson had taken out an injunction (sic) against her. This was the access road shown blue on production 2. Asked whether it formed part of any of the crofts or was just owned by Husabost Estate, she said it was owned by the Estate but gave access to the lower crofts. She then qualified this by saying she was not sure whether it formed part of the crofts. Mr Gibson had bought part of the access road (as part of the transaction already referred to) and objected to the upgrading of it. She could not remember him having any valid basis for objecting; it was just that he believed himself to be the landlord because he owned part of the access road. His court action had been unsuccessful and she had been allowed to upgrade the road. That would have been in 2008 or 2009.

[63] She recognised the photographs at productions 12-18. They showed the access road which she had upgraded. She had croft 12. The house was let as a self-catering unit. This was the road which led to it.

[64] She identified croft 14 on production 2 and confirmed that it was tenanted by Mr Thorburn.

[65] In cross-examination Mrs Thompson said she had bought her croft from a Mr and Mrs Nicholson. She confirmed that her former husband was the Head of Environmental Health for the local authority at that time.

[66] It was put to her that the Gibsons had gone to court because they wanted the access maintained as an agricultural access, not as an access for a holiday home. She said that would make no sense because at that time she had had no intention of making the house a holiday home.

[67] She gave evidence that the bounds of croft 14 were as shown by the red lines on production 2. She confirmed that Mr Thorburn was tenant of this croft. Asked when she had been advised that Mr & Mrs Gibson were the landlords (presumably of the part of the road running through their property), she did not think she had ever been advised of it but she had become aware of it in 2008. She had become aware that a mistake had been made.

[68] Asked whether she had ever written a letter to Archie Hillen (Mr & Mrs Gibson’s architect), she thought she had written a letter about the access track but not about any property. So far as she had been aware, in 2008, there had been some confusion on someone’s part and Mr & Mrs Gibson had got the land below the track in error. Husabost Estate had never written to her to explain that the land next door now belonged to Mr & Mrs Gibson but they had explained the situation whereby the Gibsons had got the land in error when they bought their own croft. She was not sure when that was.

[69] In re-examination Miss MacDonald sought clarity the source of Mrs Thompson’s understanding of the boundaries. The witness said she had been born in Ferriniquarrie, been brought up there and returned there having been away. She had always known the whereabouts of croft 14 from her own knowledge, not as a result of having been shown production 2.

Ross Ferguson MacKenzie (43)

[70] Mr MacKenzie identified himself as the Scottish Agricultural College’s Agricultural Adviser in Portree.

[71] He knew Mr Thorburn and croft 14 Ferriniquarrie. He had filled out Mr Thorburn’s SFP data sheets. The croft was not sub-let to anyone, it was in Mr Thorburn’s name and an SFP application was made in respect of it before 15 May in each year. The SAC’s Portree office had prepared Mr Thorburn’s SFP application forms and data sheets since 2003. The application forms incorporated all Mr Thorburn’s land together with any ground held for seasonal use. He had been doing Mr Thorburn’s IACS returns since 2003. None of that documentation had been lodged in court but he had brought the 2010 form with him. Miss MacDonald did not move to have this document lodged but we put production 2 to the witness. He identified the area delineated in red as being a croft tenanted by Mr Thorburn. Mr Thorburn had a number of crofts, so they always had to go through things very carefully but what was shown on production 2 accorded with his understanding of the boundaries of croft 14.

[72] In cross-examination Mr MacKenzie confirmed that the IACS forms he had been talking about were filled in in the name of Mr Thorburn’s company, not in his own name. He confirmed that it was the company, not Mr Thorburn as an individual, who got the financial benefit of having this land.

[73] There then followed questioning of this witness directed at the content of the IACS forms, Mr Thorburn’s entitlement to “grant” (as Mr Gibson called it) and the legitimacy of making such a claim without the landlord’s consent, but never at any time asserting that the disputed land was not croft 14 nor suggesting that Mr Thorburn was not tenant of that croft, although it was suggested that, since rent was being paid to someone else, there was no relationship of landlord and tenant with Mr & Mrs Gibson. It was also suggested that since the company was the recipient of SFP but was not the tenant of the croft the claim for SFP was illegitimate. Mr MacKenzie agreed that the SAC would not advise claiming a grant if the applicant did not have a tenancy with the current landlord. He confirmed that he had never been told about a change of landlord. That was something normally done by the tenant.

[74] In addition to livestock and farming the company of S Thorburn Ltd was involved in haulage but that sort of arrangement was quite common.

[75] In re-examination the need to intimate a change of landlord for IACS purposes was revisited. Mr MacKenzie said that as long as the applicant was still the tenant it was not necessary to intimate a change of landlord. In answer to a question from the court he confirmed that the critical thing was that a claimant for SFP had to show he was entitled to use the ground in respect of which he was claiming. Crofting tenants had that entitlement until their status as crofting tenants came to an end.

[76] The court having asked these questions, we gave Mr Gibson the opportunity of further questioning on this subject. He asked whether Mr MacKenzie would be happy for a tenant to claim for grant where there had been a change of landlord and the original landlord continued to act as if there was a continuing relationship of landlord and tenant with the tenant. He said he would be but when an analogy involving the sale of a car and continued exercise of ownership rights by the seller was put to him he said he would probably not be comfortable with that.

[77] At this point, Miss MacDonald having no further witnesses she could call today, it was agreed to interpose the evidence of the respondents’ witnesses, Mr David MacVicar and Mr Sorley Henderson.

Mr David Shanks MacVicar (55)

[78] Mr MacVicar gave evidence that he was the Scottish Government Rural Payments and Inspections Directorate’s Senior Agricultural Officer in Portree.

[79] Shown the title plan which is part of production 48, he was asked whether it showed croft 14 Ferriniquarrie. He said it was not marked on the plan but it was somewhere below the number 69, down from there to the Hamara River. There was a track which split the township more or less from end to end and crofts 14 and part of 9 were below that. It would be useful to be able to compare this map with ones in his office where they had GPS records, accurate to within 0.5 metres or thereby, for all land on which subsidy was claimed.

[80] It was not necessary that one paid rent under a tenancy in order to claim subsidy. In crofting situations there were often informal arrangements which allowed people to claim on other people’s land. The Scottish Government had a system of cross-checking to ensure that there was no duplication. Someone might pay rent to one person and occupy land at a separate location on which subsidy was claimed but, provided no one else was claiming on the same land, that should pass the cross-checking. However the Scottish Government was likely to ask claimants for evidence to back up their occupancy of the land. Further questioning along this line, directed as it was to the validity of Mr Thorburn’s SFP claims, was disallowed as irrelevant.

[81] Production 48 was similar to a 1951 map held at his office which had been revised for Department of Agriculture and Fisheries purposes. He could not say for certain where that map had come from. Various boundary exercises had been carried out by Department inspectors throughout Skye over the years. He disagreed with a proposition from Mr Gibson that a lay person would have great difficulty in understanding where the boundaries were from such a map as the township map included in production 48. If one thought back to the time before crofts were fenced or dyked delineation of boundaries depended on natural features. If one was dealing with estates with poor records, there was always the possibility of error when land was sold.

[82] The witness was asked whether Mr & Mrs Gibson had ever made a claim for crofting grants for croft 5. Although crofting grants were not something he himself had to do with, he understood that they had not. That was not unusual; for example the Crofting Commission had a huge database of absentee crofters who never claimed for their land. Asked whether forestry was a reasonable use of a croft, Mr MacVicar replied, no doubt adopting to the language of the 1993 Act, that it was a purposive use.

[83] Mr Gibson asked if it was correct that the Scottish Government’s relationship was with Mr Thorburn’s company, not with Mr Thorburn himself. He explained that any legal or natural person could be a claimant for SFP but a limited company could not be the tenant of a croft. He confirmed that his Department was dealing with S Thorburn Ltd.

[84] In cross-examination the witness confirmed that he did not know Samuel Thorburn personally. But any IACS returns made by Mr Thorburn or on his behalf would be checked by his office. There had been such checks, but not in the recent past.

[85] Production 2 looked familiar. The grey delineations showing boundaries also appeared, he felt confident, on the version of the plan in his office. Croft 5, as he understood it, was that which was shown outlined in blue and croft 14 outlined in red, running down to the Hamara River. Asked whether it was within his knowledge that Samuel Thorburn was tenant of 14, from information on file at his office Mr Thorburn had become tenant on 28 May 1990. He could not say whether they had a copy of the Register of Crofts entry for the croft in his office but it would be something they would look at if in doubt as to any change of occupancy of the croft.

[86] It was not uncommon for crofting tenants to have no written tenancy. He had been in Skye for 13 years, working primarily as factor of government estates on which there were 600 tenants and he could recall only two written agreements. The vast majority were held on the basis of the statutory conditions of the 1993 Act and passed on from one tenant to the next by assignation.

[87] Asked in re-examination whether a crofting tenancy was akin to an island surrounded by a sea of litigation, Mr MacVicar said that there had been a number of changes to the 1993 Act in recent years but tenancies, basically, had not changed. As to whether it was the company or Mr Thorburn as an individual he worked with, it depended on the circumstances. The business would be the SFP claimant but the tenancies would be held by Mr Thorburn. They would check that, not with the landlord, but with the Crofting Commission if dealing with a registered township, which Ferriniquarrie was.

Sorley Thorburn Henderson (52)

[88] As has already been noted, Mr Henderson is a solicitor who had at one time been a partner in Ferguson MacSween & Stewart. He gave evidence that as such he had prepared this application to the Land Court in 2011. But his acquaintance with the matter went back to 2005 when Mr Thorburn had instructed him to respond to a letter from Messrs Harper MacLeod, solicitors, which had been served on Mr Thorburn by Sheriff Officers. From recollection that letter had said that Mr Thorburn had no right to occupy the land and his instructions had been to respond by saying that Mr Thorburn had a tenancy. He thought production 69 was the letter to which he had responded. He identified production 20 as his response. Mr Thorburn had told him that he was the tenant of croft 14 and had right to the improvements thereon.

[89] He was aware that Mr Thorburn had a limited company through which he ran at least some of his business but he himself had never acted for the company or received instructions from them. He had not had any reason to question Mr Thorburn about how he ran his business: he had only been interested in whether Mr Thorburn had the tenancy of 14 Ferriniquarrie.

[90] Mr Thorburn had told him, in 2005, that his landlord was Olaus Martin. That had been the witness’s understanding when he had written production 20 but he had subsequently learned that the land had been conveyed to Mr & Mrs Gibson. Neither he nor Mr Thorburn had known that at the time of this letter. Mr Thorburn had received no intimation of change of landlord, so Mr Henderson had not seen any necessity to question him about to whom he paid the rent. He was not sure what the arrangement for rent was now but he thought Mr Thorburn may be paying it into an account. It was now known that Mr Martin (or his successor) was not Mr Thorburn’s landlord but Mr Thorburn had never been told who his new landlord was.

[91] There then followed questioning as to whether Mr Henderson should have advised Mr Thorburn as to whom he should pay rent but since it is irrelevant to what we have to decide we do not repeat it.

[92] Asked whether he had any other relationship with Mr Thorburn apart from being his solicitor, Mr Henderson said he was his cousin.

[93] He admitted that he had not written to Mr & Mrs Gibson to say that the matter had come to a head and that he was looking for a resolution. He explained that in 2005 several letters had been written about Mr & Mrs Gibson’s application for decrofting. Mr Thorburn had learned of an application having been made to the Crofters Commission for a decrofting direction in respect of land on his croft so Mr Henderson had written to the Commission explaining that it was incompetent to decroft land from a tenanted croft. Since Mr & Mrs Gibson had not accepted Mr Thorburn as their tenant he had advised Mr Thorburn to come to the Land Court. As to why that had happened only five years later, he explained that what had prompted the application then had been the advertising of plots of land, partly on Mr Thorburn’s croft, for sale. In any event, the history of matters up until then suggested that a letter from him to Mr & Mrs Gibson would not have been well received.

[94] Mr Gibson asked the witness if he was sure the land for which planning consent had been granted was part of croft 14; might it not be part of 9? From memory, Mr Thorburn thought it straddled the two crofts. He would have checked the matter when preparing the application to this court. He denied that, having seen the house sites advertised, the Land Court application had been brought as an opportunity to make money.

[95] If Mr Thorburn had a tenancy it would not be affected by a change of ownership of the land. Asked whether it would not have been affected by not paying rent he replied that there were remedies for that. He did not think Mr Thorburn had ever been asked for rent by Mr & Mrs Gibson.

[96] Mr Gibson put it to the witness that, with hindsight, he may have been able to resolve matters by writing to his parents. Mr Henderson explained that he had written to their solicitors on a number of occasions without satisfactory response.

[97] In cross-examination Miss MacDonald took the witness through the relevant correspondence. He identified productions 20 and 21 as two letters to Messrs Harper MacLeod. He had received a holding response, production 22, then another one, production 25. He had never received a substantive reply. Production 27 was a letter from him to Messrs MacLeod & MacCallum, dated 1 February 2005, proposing a solution to the problem. The view he had taken at that time was that when the Gibsons had acquired title the title plan had included, in error, land forming Mr Thorburn’s croft and part of Mr MacKinnon’s. This appeared to have been as a result of a misunderstanding on the part of Mr & Mrs Gibson. Mr Thorburn had wanted him to assert his (Mr Thorburn’s) rights as tenant and have Mr Martin restored as his landlord. In croft purchase conveyancing in 2005 matters often proceeded on the basis of a plan prepared by the tenant, as the person usually best placed to know where the boundaries were. Some, but not all, landlords insisted on the neighbouring crofters approving the plan. In writing to Mr & Mrs Gibson’s solicitors as he had, he had been careful not to suggest that they had been acting in anything other than good faith. (Production 27 explicitly says “We have no doubt that Mr & Mrs Gibson are acting in good faith and really do believe that they have the right to occupy no 14 (and part of 9) by virtue of their title”.)

[98] In response to this correspondence, Messrs MacLeod & MacCallum, at production 29, a letter dated 9 February 2005, had suggested that Mr Thorburn have his position protected by going to the Land Court. But Mr Henderson had still been hopeful that Mr & Mrs Gibson would accept that Mr Thorburn had a tenancy and would transfer the land back to Mr Martin. That would have meant that Mr Thorburn would not have had to do anything. None of this had been his doing, so why should he have to do anything to resolve it?

[99] In re-examination it was put to Mr Henderson that at no point had he written to Mr & Mrs Gibson asking them to accept Mr Thorburn as tenant. Mr Henderson pointed out that he had written the letters to which reference had just been made. It was the import of these letters that Mr Thorburn wanted to be accepted as tenant: that he was asserting himself to be the tenant. Mr Henderson made particular reference to his letter of 13 January 2005 to Messrs Harper MacLeod (production 20) in which he had said that he had no doubt that Mr Thorburn was tenant of this land. That letter clearly asserted Mr Thorburn’s tenancy. It was a clear invitation to accept Mr Thorburn as tenant.

Derek Flyn

[100] Mr Flyn’s evidence was heard on the morning of 25 March. He was shown productions 40 to 68. He identified them as items of correspondence and other papers produced by Messrs MacLeod & MacCallum, solicitors, his own former firm acting for Husabost Estate

[101] He had taken over acting for Mr Olaus Martin in or around 2002 or 2003 when his partner, Iain Morrison had retired. Prior to that he had become aware of difficulties when the Estate had approved maps produced by tenants and used them in conveyances of crofts to tenants. He had visited Mr Martin and told him of his concerns.

[102] He had become aware of difficulties with Mr Thorburn’s croft as long ago as 2006. By that time Mr Martin was elderly, his wife was no longer living and business was less “clear-cut” than it had been. One had to go to Skye to get instructions from Mr Martin by then and he had found out about the difficulties involving Mr Thorburn on one such visit.

[103] Production 60 was a copy of a rent cheque from Mr Thorburn which he had been instructed to return because Mr Martin no longer owned the relevant land. Production 67 was an extract from a Catalogue of Properties and Crofts on the Husabost Estate which had been prepared by a Mr Jamie Fairbairn. It showed Mr Thorburn as tenant of 13, 14, 16 and 17 Ferriniquarrie.

[104] Production 40 was a letter from the Crofters Commission to Mr Martin dated 26 October 1989 intimating their consent to a proposed assignation of the tenancy of croft 14 Ferriniquarrie by a Mrs Margaret Campbell to Mr Thorburn. That confirmed the information contained in Mr Fairbairn’s catalogue so far as 14 Ferriniquarrie was concerned.

[105] Production 42 was a letter from Messrs Ferguson MacSween & Stewart on behalf of Mr Thorburn to Messrs MacLeod & MacCallum dated 27 January 2005 explaining that the conveyance of croft 5 had included, probably inadvertently, land comprising number 14 and asking Messrs MacLeod & MacCallum to investigate and, if appropriate, seek a re-conveyance of the relevant land from Mr & Mrs Gibson. The position was not made easier by the fact that Mr & Mrs Gibson had consulted a number of different solicitors. Their son had also become involved and had threatened to sue Mr Martin for selling too much land. So it was clear that the Gibsons accepted that too much land had been sold. Despite that, however, they refused to agree to a re-conveyance. Counsel’s Opinion had been obtained and the advice received was that the crofter’s rights might be more effectively protected by going to the Land Court rather than by pursuing an action of reduction of the disposition in the Court of Session.

[106] Productions 54 and 56, dated 14 December 2005 and 5 January 2006, were letters from Messrs MacPhee & Partners, on behalf of Mrs Gibson, to Messrs MacLeod & MacCallum acknowledging that a proportion of the land disponed to her (in fact the disposition was to Mr & Mrs Gibson jointly) was subject to two crofting tenancies, one in favour of Mr Thorburn and one in favour of Mr Donald MacKinnon. The letters threatened a claim for breach of warrandice against Mr Martin. There had never been any intention to confer on Mrs Gibson any beneficial rights in 9 or 14 Ferriniquarrie. The position was made clear by production 48, a letter from Messrs James Stewart & Co, solicitors, who had acted for Mrs Gibson (again the reference is solely to Mrs Gibson) in the purchase of what was intended to be only 5 Ferriniquarrie. That letter, dated 5 April 2005, made clear that the conveyance had proceeded on a plan supplied to her solicitors by Mrs Gibson. So it appeared that she had produced the erroneous plan, from which all the subsequent difficulty had stemmed.

[107] Production 61 was a copy of a letter from Mr Flyn to Messrs South Forrest, yet another firm of solicitors acting for Mr & Mrs Gibson, explaining the position to them and saying that with goodwill the matter could easily be resolved. However there had been no willingness on the part of Mr & Mrs Gibson to agree any remedy.

[108] Under reference to productions 48 and 53, an exchange of letters between himself and Messrs James Stewart & Co, dated 5 April and 5 May 2005, Mr Flyn explained that at one time Mr Martin had told him that croft 5 extended all the way down to the sea but had subsequently accepted that it went only as far as the track giving access to the lower crofts.

[109] Before coming to what was said in cross-examination, we should record that Mr Flyn was anxious to say, lest it be thought that many such errors had occurred on the Husabost Estate, that there had been only three, of which this was the third. The first two had been resolved by agreement but not this one. Nevertheless, having had the importance of using correct maps explained to him by Mr Flyn, Mr Martin had been anxious to remedy matters and had called a meeting of all crofters on the Estate at Glendale Community Hall on 14 July 2011 at which Mr Flyn had made a presentation as to the possible preparation of a crofting community map for the purposes of the Crofting Register.

[110] In cross-examination, Mr Flyn explained that Mr Martin had been upset about the situation because he had previously had good dealings with all of his tenants and he wanted the situation rectified. He had instructed Mr Flyn to rectify it. The conveyance had proceeded on a plan provided by Mrs Gibson, a matter contested by Mr Gibson who said that Mr Martin and a surveyor had accompanied his mother on a site visit and the plan had been drawn up as a result. Mr Flyn explained that, however it had happened, the effect of the conveyance was to transfer the landlord’s interest in the land to Mr & Mrs Gibson but the tenant’s interest remained untouched.

[111] Asked whether his former client had retained any financial interest or relationship with the land in any shape of form after the conveyance Mr Flyn said that the only financial interest he could identify was rent and when rent had been tendered by Mr Thorburn it had been returned. He assumed rent would have been received and accepted up until the point at which the Estate had become aware of the dispute but he doubted whether further rent had been paid for this land. Asked whether he advised any of the other agents (a reference, we think, to any of the agents acting for Mr & Mrs Gibson) that money had been received for this land and explaining how he was going to dispose of it, Mr Flyn said that croft rents were generally so low that the matter was not of great concern. Mr Gibson put it to him that it did not matter whether we were talking about £1 or £1m; he had still chosen not to disclose receipt of the money to the agents involved. Mr Flyn pointed out that the matter would be plain to all crofting lawyers. It was obvious that rent was payable but the sum involved was not of such magnitude as to cause concern to anyone. An apportionment of the rent could certainly have been carried out but the problem was that Mr & Mrs Gibson denied that this was tenanted land. Mr Gibson having pointed out that there had been some evidence to the effect that the Estate had gone on accepting rent, Mr Flyn thought that must be on the basis that the Estate believed that the problem was going to be resolved (by the reconveyance of the land to the Estate, as we understood his evidence). In any event any money found not to be due to the Estate would be refunded. But he thought the crofters here (Mr Thorburn and Mr MacKinnon) would have believed Mr Martin to be their landlord. Asked whether that was because Husabost Estate had never told them differently, Mr Flyn said that we were talking about an elderly gentleman (Mr Martin) who could no longer walk out to inspect boundaries by the time Mr Flyn had met him and who was assisted by his elderly sister.

[112] Under reference to production 6, the disposition in favour of Mr & Mrs Gibson, the witness confirmed his understanding that croft 14 and part of 9 were in the area towards the river. It was then put to him that it would have been better for the Estate to approach Mr & Mrs Gibson to explain to them that, unfortunately, they had a tenant but one whom the Estate had always found fair and reasonable and ask whether they would, therefore, accept him as their tenant, rather than demanding the reconveyance of the land. The court, however, stopped this line of questioning as improper given that Mr & Mrs Gibson had known about the existence of Mr Thorburn’s claim for this tenancy since at least 2005 and that their position had been to deny that claim.

[113] Reference was made to production 63, a note of a telephone conversation between Mr Colin Gibson and Mr Flyn dated 5 July 2011. Mr Flyn explained that he had had several telephone conversations with Mr Colin Gibson, none of them happy, but he had noted this one because it had gone “a bit deeper”. Mr Gibson had demanded to know who was paying Mr Flyn because Olaus Martin, according to Mr Gibson, had no money. The meeting referred to in the note was the meeting of crofters about the Crofting Register mentioned above.

[114] Asked whether, further to that meeting, the Crofting Commission’s records had shown the landlord of the crofts (we assume 14 and part of 9) to be Mr Martin, Mr Flyn was unsure whether Mr Martin’s executors, following his death, had intimated a change of ownership to the Commission.

[115] Concluding cross-examination, Mr Gibson told the witness that he hoped the Gibson family would contribute a lot to the Glendale community. He made mention of a niece who was a speech therapist (we may have noted this wrongly since a letter from Mr & Mrs Gibson dated 7 July 2014 refers to their grand-daughter studying to become a Mental Health Nurse) for whom one of the house sites for which planning permission had been obtained had been intended and all that she could contribute to the community. Mr Flyn responded by saying that in 30 years as a crofting lawyer he had been involved in many disputes, some of which had been resolved amicably and some by the court. It had become clear to him before his retirement that this was a case which was not going to resolve amicably and that had made him interested in trying to protect Mr Martin. He had subsequently, in retirement, devoted a lot of time to resolving the matter but without success and he was now pleased to see it before the court.

[116] In re-examination Mr Flyn agreed that if Mr & Mrs Gibson were asking for the rent it suggested that they accepted the existence of a tenancy. He confirmed that a change of landlord did not affect a crofter’s right to occupy the land; it did not affect the security of tenure given to a tenant crofter.

[117] That concluded the evidence and we proceeded to Ferriniquarrie to conduct an inspection.

Inspection

[118] Mr Thorburn identified the croft for us on the ground. There are no boundary fences but he indicated to us where, roughly, the boundary between what he claims is croft 14 and croft 9 is on the ground. We accessed it from the Lonaig. The croft slopes down southward from the Lonaig to the River Hamara. It has clearly been used only for grazing in recent years. There was no evidence of cultivation but significant evidence of weed infestation. The terrain was quite rough and the ground wet, getting wetter the further south one went. This could be improved with better drainage. The land is exposed with no shelter to speak of. Indeed the tin shed or bothy, spoken of in evidence, is in the course of being comprehensively destroyed by the elements and is of no value. There are no other permanent improvements. The provision of water for grazing animals is not a problem; there is access to the river at the south and to a stream at the north. In summary this is a croft whose only practical use in its present condition is for grazing during the growing season.

Subsequent procedure

[119] As we have said, when we finished evidence in Skye the intention was to hear the evidence of Mr and Mrs Gibson at Bothwell on a subsequent date. Before adjourning, however, we invited Mr Gibson to take his parents’ instructions as to what their continuing position was to be in this litigation. That was in light of the fact that not only had the evidence we had heard been unequivocally to the effect that the land in dispute was croft 14 and was tenanted by Mr Thorburn but that at times in the course of that evidence Mr Gibson himself had seemed to accept both of these propositions. We asked Mr Gibson to make this enquiry because we were mindful of the expense which would be entailed by the hearing of further evidence at Bothwell. He said he would do so.

[120] It subsequently became clear that Mr & Mrs Gibson’s position had not changed. A date was therefore fixed for the hearing of their evidence. It was 27 May but parties subsequently agreed to the discharge of that hearing to suit the convenience of the Chairman. It was not then envisaged that there would be any difficulty in fixing another date in the near future. That turned out not to be the case. Despite the best efforts of Mr Nugent, the clerk dealing with the case, agreement on a date suitable to Mr & Mrs Gibson proved impossible. So by our order of 16 June we fixed a hearing for 7 July. The note attached to that order explains the difficulties and why that date was being fixed. We followed that up with a letter to Mr Colin Gibson dated 25 June seeking to assuage certain concerns we thought his parents may have as to what the giving of evidence would involve. That did not, however, have the desired effect and by letter dated 2 July Mr & Mrs Gibson informed the court that they were unable to give evidence on the scheduled date. By order dated 6 July we therefore discharged the hearing set for the following day.

[121] Shortly afterwards a hearing over which the Chairman had been due to preside in the Lands Tribunal settled with the result that the court was able to offer to hear the evidence of Mr & Mrs Gibson on either of 16 or 23 July, two dates which Mr Colin Gibson had earlier indicated as being suitable. On 13 July he emailed to the court to say that his parents required to “fully brief a solicitor”. He requested another date to be fixed in late September. Given that his parents had had since 12 December 2012 to instruct a solicitor and had persistently declined to do so despite suggestions from the court that they should, we took the view that enough was enough and by our order of 14 July ordained parties to lodge written submissions on the evidence heard and the order we should pronounce.

Submissions

[122] We have received submissions from both parties, those for Mr & Mrs Gibson taking the form of a letter dated 5 August 2015 signed by them and by Mr Colin Gibson.

[123] We need not set out Miss MacDonald’s submissions in full. They summarise the evidence led and invite us to grant the craves of the application.

[124] The submissions for Mr & Mrs Gibson concede that Mr Thorburn has crofting rights over croft 14 but purports to dispute the croft’s location and size. However, so far as location is concerned it seems clear that they now accept that croft 14 is more or less where the applicant says it is and that what is really disputed is its precise boundaries. That said, however, the Gibsons (by which term we include Colin Gibson) do not say what the correct boundaries are. Accordingly, the evidence led by the applicant as to the boundaries of the croft remains uncontradicted by any alternative. The point is made that Mr Thorburn has not lodged his IACS maps relating to croft 14, which would, we presume, show the boundaries more precisely than they are shown on production 2. Certainly, when it comes to the conveyancing of the croft a more precise plan will be required for registration purposes but all we have for present purposes is production 2. Accordingly our order has been pronounced with reference to it.

[125] Many of the other points contained in the letter of 5 August are irrelevant but some of them require comment.

[126] It is said at para (3) that the Gibsons offered settlement of the dispute on 18th March and that this offer was rejected by Mr Thorburn. The offer referred to is contained in a letter of that date. It is to accept Mr Thorburn as the tenant of a greater area than the area claimed but excluding (i) the two sites for which Mr & Mrs Gibson have obtained planning permission and (ii) the solum of the bothy plus 20 metres on each side. That offer was clearly made without a proper understanding of crofting law. Parties cannot agree matters relating to crofts in such an informal way. Mr & Mrs Gibson could not enlarge croft 14 unilaterally nor would the excluded areas cease to be subject to crofting law without a process of resumption. Mr Thorburn could have agreed to resumption but it would still have been subject to this court’s approval in terms of sec 20 of the 1993 Act. But Mr Thorburn clearly had no interest in such a proposal and he was perfectly entitled to reject it. He cannot be faulted for having done so.

[127] A number of points are made to the effect that Mr Thorburn’s motivation in bringing this application was commercial gain. In particular it is said that he wishes to acquire the benefit of the planning permissions obtained by Mr & Mrs Gibson. Whether that is true is not relevant to the matters we have to decide but we would point out that should Mr Thorburn dispose of any part of the croft land to anyone other than a member of his family within ten years of acquiring title to it Mr & Mrs Gibson will be entitled to half the difference between the market value of the land disponed and the sum paid for it by Mr Thorburn; sec 14(3) of the 1993 Act.

[128] It is said that the applicant confirmed to the court that he does not use the Lonaig to take livestock to and from the croft.

[129] A number of points are made critical of Mr Flyn. Although they are irrelevant to the matters we have to decide, it is right that we should say that we do not accept them. Far from disclosing any impropriety on Mr Flyn’s part, the evidence disclosed a commendable desire to have the situation resolved, even in retirement.

[130] These are the only matters contained in the respondents’ submissions which require comment. We close this section by noting that the submissions say nothing explicitly in support of a defence of substantial hardship under sec 13(2)(a) of the Act although their general tenor is that he will be enriched and the respondents impoverished if the croft land has to be conveyed to Mr Thorburn.

Decision

[131] The applicant’s first crave is for declarator that the area delineated in red and marked ‘14’ on the plan annexed to the application (production 2) is croft land tenanted by the applicant known as and forming croft 14 Ferriniquarrie, Glendale, Isle of Skye. There being ample evidence in support of that crave and none against it we have granted it.

[132] The applicant’s second crave is for declarator that as tenant of the foresaid croft he has, as a pertinent of his tenancy, a right of access for vehicles, pedestrians and livestock along the track shown coloured green and blue on said plan. That was spoken to by Mr Thorburn himself, by Mr MacKinnon and by Mrs Thomson. Although Mr Thorburn said that he tends to take livestock to the croft by crossing the Hamara River, he also gave evidence that he was entitled to use the Lonaig for that purpose. There was no contrary evidence. Accordingly we have granted crave (2).

[133] Crave (3) seeks authorisation for the acquisition of the croft land. Although nothing was said about this in their closing submissions, in adjustments to their answers received by the court on 6 September 2013 Mr & Mrs Gibson stated what we are prepared to accept as a defence of substantial hardship in terms of sec 13(2)(a) of the 1993 Act. At para 16 they say that loss of “this asset and income” would impose significant financial hardship. That seems to include reference to a housing plot which is referred to in the immediately preceding paragraph, said to be on the market at a guide price of £50,000. Any sale of that plot would be subject to Mr Thorburn’s rights as tenant. No one properly advised would, therefore, buy it and certainly not for anything approaching £50,000. The only other avenue available to Mr & Gibson for pursuing their plans for this site would be to apply to the court for an order for resumption. It would no doubt be vigorously opposed and would be unlikely to be granted. In any event no evidence has been led in support of this defence and there is no application for resumption before the court. Accordingly we have granted crave (3). As we have already said, a more precise plan than production 2 will be required for conveyancing and registration purposes when title to the land is being acquired.

[134] Crave (4) seeks an order requiring Mr & Mrs Gibson to grant a servitude right over the section of the Lonaig owned by them for vehicular, pedestrian and livestock access. That seems appropriate and we have granted it. Crave (5), however, seeks a similar servitude right over the stretch of the Lonaig from the access gate at its western end to the western boundary of the Gibsons’ property (coloured blue on production 2). We do not see how it can be in Mr & Mrs Gibson’s power to grant such a servitude. It is not part of their title, so far as we can see. Mr Thorburn’s use of the Lonaig is probably adequately secured by the fact that we have decided it to be a pertinent of his tenancy. He would thus be able to continue to enjoy it as an owner occupier crofter. Accordingly we have refused crave (5).

[135] Because we apprehend further difficulty in the way of the conveyancing to follow hereon, we have expressly reserved a right to the parties to apply to the court for any further order that may be required in terms of sec 12-14 and 16 of the Act.

Expenses

[136] Mr Thorburn has moved for expenses against Mr & Mrs Gibson. Mr & Mrs Gibson have moved for expenses against Mr Thorburn and the second respondents.

[137] Mr & Mrs Gibson’s motion is nothing if not bold. It seems to be based on Mr Thorburn’s refusal of their settlement offer. As we have already pointed out, Mr Thorburn was perfectly entitled to refuse that offer (indeed it was an offer which, for the foresaid reasons, Mr & Mrs Gibson were in no position to make) and the outcome of the case has vindicated his decision to do so. We have no hesitation in granting Mr Thorburn’s motion. It accords with the normal principle that expenses follow success. Instead the only question for us is whether we should award expenses on an agent and client, client paying basis. We have considered whether we should do that at our own hand. We have thought it more appropriate, however, to allow both parties 21 days to make submissions on the basis upon which expenses should be awarded.

[138] For the benefit of the Gibsons we would explain that an award of expenses on an agent and client basis is a more generous award than normal. A party against whom such an award is made will usually end up paying more in the way of expenses than would otherwise be the case. Expenses on this scale are awarded “where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense” (Lord Hodge in McKie v The Scottish Ministers 2006 SC 528 at 530) and the sort of things that can be taken into account are “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” (ibid). On the other hand, we would have to take account of Mr & Mrs Gibson’s financial position. We will have to be told about that. We know that they are elderly and in poor health but the way in which they have conducted matters since as far back as 2005 is perplexing to say the least and it is our duty to consider whether and, if so, how we can alleviate the effects of that conduct on Mr Thorburn.