Decision of the Scottish Land Court

George Rodenhurst (Applicant) v Thrumster Estate Limited (Respondents)

Case reference SLC 26/11
before
Lord Minginish, Chairman, and Mr Angus Macdonald
8 January 2015

[1] This is the second Land Court case involving the croft of Brickigoe on the Thrumster Estate, Caithness. In RN SLC/156/05, by our order of 18 August 2006, we authorised acquisition of the croft by the then tenant, Miss Eva Waugh. Miss Waugh never completed the purchase. Instead, she assigned her tenancy to the present applicant. He then applied to be sisted in place of Miss Waugh in the 2005 case and for an extension of the two year period specified in sec 17(1) of the Crofters (Scotland) Act 1993 (“the 1993 Act” or “the Act”) during which an order for acquisition has effect. By our order of 28 July 2009 we allowed him to be sisted in place of Miss Waugh but refused the second part of his motion, holding that an order under sec 13(1) of the Act is personal to the crofter in whose favour it is made and cannot be assigned with the croft tenancy (Waugh v Thrumster Estate Limited 2009 SLCR 170). Mr Rodenhurst has now brought the present application seeking an order for acquisition of the croft in his own right.

[2] The application is opposed by the respondents who rely on the grounds set out in sec 13(2) of the Act, being:

“(a) that, in all the circumstances pertaining to the landlord and having regard to the extent of land owned by him to which this Act applies, the making of such an order would cause a substantial degree of hardship to the landlord;

(b) that the making of such an order would be substantially detrimental to the interests of sound management of the estate of the landlord of which the croft land to which the application relates forms part.”

[3] The matters on which the respondents intend to rely for the purpose of substantiating these grounds include allegations as to the applicant’s behaviour in the following terms:-

Applicant’s conduct

The Applicant became tenant with effect from May 2008 by virtue of an assignation in his favour. Prior to the assignation in his favour the Respondent had not experienced any real difficulties in the ongoing running and administration of the estate, or the operation of the sporting rights over tenanted croft ground.

The Applicant has threatened the Respondent’s officers, employees, sporting tenants and guests. The Applicant has, without any right to do so, under threat of physical force, removed the Respondent’s sporting tenants and guests from the croft. The Applicant has behaved in a threatening manner towards the Respondent’s officers, employees, sporting tenants and guests. The Respondent has verbally and physically assaulted officers and employees of the Respondent. The Applicant has made false and defamatory allegations against the officers and employees of the Respondent. The Applicant’s conduct since becoming tenant has been such that the Respondent has required to put provisions in place for the protection of the Respondent’s officers, employees, sporting tenants and guests. Reference is made to the Schedule of Incidents annexed hereto, which schedule is deemed to be incorporated herein by reference brevitatis causa. The Respondent has previously destroyed buildings of historical importance on the croft. The Applicant has removed fencing, resulting in animals straying onto the access track (which in turn has necessitated the installation of a gate across the track making access over the track a more involved exercise). Within the last three years, the Applicant has been convicted on criminal charges at Wick Sheriff Court on five occasions for offences of the type outlined in the said Schedule. Since the Applicant obtained the tenancy of the croft, the Respondent has suffered regular and unexplained losses of sheep stock. In the past year 40 ewes have gone missing. The Applicant has, during periods in which he has had no stock on the croft, been seen herding sheep near the Respondent’s in-hand ground. Believed and averred that the Applicant has been responsible for rustling the Respondent’s stock.

The Applicant has previously been convicted of charges relating to unlawful killing of birds of prey. In particular these convictions related to setting illegal traps and snares and poisoning birds of prey. … The offences were committed while the Applicant was in the employ of the Marquess of Aberdeen at Haddo Estate. Copy letter and enclosures from Lord Aberdeen is produced herewith, referred to for its terms and deemed to be incorporated herein brevitatis causa.

The conduct of the Applicant was such that the Respondent has referred his conduct to the (then) Crofters Commission for action to be taken in respect of the Applicant’s behaviour. … While the Commission did not take any formal action, the fact of the referral itself had the effect of temporarily improving the situation. The likelihood of incidents had reduced due to the fact that the Applicant was trying to sell his tenancy from the late part of 2009. It can be seen that the level of incidents decreased dramatically during the period from October 2009 until May 2011.

The Respondent now possesses the power to take proceedings directly without the required reference to the Commission, and that under section 26 of the Crofters (Scotland) Act 1993 as amended. That power gives the Respondent a measure of effective control over the actions of the Applicant, but only whilst he remains as tenant. If the croft is purchased by the Applicant, the Respondent will lose that measure of control.”

[4] The Schedule of Incidents referred to in the foregoing passage narrates some 35 incidents spread over a period from August 2008 to March 2014 with a period of what is described as “relative peace” from around October 2009 to May 2011.

[5] The applicant has challenged the relevancy of these averments. That plea was debated before us at Edinburgh on 4 November 2014 when the applicant was represented by Mr Brian Inkster and the respondents by Mr Andrew Murchison, both solicitors.

Legislation

Crofters (Scotland) Act 1993, secs 5, 5A, 5AA, 5B, 5C, 13(1), 13(2), 26; Schedule 2

Cases

Bowman v Guthrie 1998 SLT (Land Ct) 2
Davie v Sutherland Estates 2005 SLCR 137
Fraser v MacKintosh 1995 SLT (Land Ct) 45
Jamieson v Jamieson 1952 SLC 257
Urras Oighreachd Ghabhsainn v Crofters of South Dell SLC/163/13, order of 7 April 2014

Texts

Stair Memorial Encyclopaedia Vol 12, paras 1102, 1119 and 1131

Submissions

For the applicant

[6] Mr Inkster explained that the applicant’s position was that questions of conduct were irrelevant and should not be before the court. He referred to the terms of sec 13(2), emphasising the requirements for a substantial degree of hardship in paragraph (a) and substantial detriment to the interests of sound estate management in paragraph (b). Neither paragraph dealt with matters which would include the conduct of the crofter. Paragraph (a) dealt with the circumstances of the landlord and it was not apparent how questions as to the conduct of the crofter could be taken into account. Paragraph (b) dealt with the management of the estate and the same applied. The respondents had produced a long list of alleged incidents but the applicant could have done the same, narrating incidents of behaviour such as the shining of lights into caravans occupied by the applicant, the discharging of firearms, the release of sheep stock and the sabotage of an electrical generator, but he had not done so because these matters were not relevant and the court should not be spending its time looking into them. The two alleged sets of conduct were linked and if we were going to explore the matter of the crofter’s conduct we would also have to explore that of the landlords.

[7] Whether the crofter was a tenant or an owner-occupier the behaviour complained of comprised matters, whether civil or criminal, properly to be dealt with in the Sheriff Court.

[8] Mr Inkster had not been able to find any cases which dealt with the relevance of conduct on the part of the crofter to the making of an order under sec 13(1) which, he suggested, was probably because such conduct had never been seen as something which could be raised as part of a defence under sec 13(2). That was the correct approach and we should refuse to admit the averments about the applicant’s conduct to probation.

For the respondent

[9] Mr Murchison invited us to refuse the applicant’s motion and to find him liable in the expenses of the debate and preparation therefore.

[10] The matters before the court were fairly confined. They centred on sec 13(2). In short the contention for the respondents was that the material pled was relevant to both the defence of substantial hardship under paragraph (a) and detriment to the interests of sound management under paragraph (b). Mr Murchison set out the structure of his argument.

[11] He began by reference to the rules of statutory interpretation contained in paragraph 1102 of volume 12 of the Stair Memorial Encyclopaedia. The fundamental principle was that the court must deduce the intention of Parliament from the words used in a statute. That had been emphasised by this court in the case of Urras Oighreachd Ghabhsainn v Crofters of South Dell at paragraph 4 where the court had said:

“The primary concern of a court is with the language actually used by Parliament. The starting point for the purposes of statutory construction must be to try to find the intention of Parliament within the four corners of the Act. This may mean that words which might appear to have a clear meaning in the context of a single section require to be given some other construction to fit the context of the Act as a whole. There may even be occasions when a court will be able to take a view as to the clear meaning of the Act as a whole which makes it possible to ignore the actual words used: see for example Harvey v McTaggart & Meikle 2000 SC 137. Put shortly, where a court is in no doubt as to the actual intention of Parliament, a somewhat strained construction of the language used may often be justified.”

[12] Mr Murchison first applied that approach to paragraph (b) of sec 13(2). The matter was plain: the court was directed to one question which was whether the granting of the order would be detrimental to sound estate management. There was nothing in that provision which would exclude from consideration the conduct of the crofting tenant who was seeking to purchase the croft. Nothing in the wording excluded personal conduct and the issue we had to look at was the impact of granting an order for acquisition on activities on adjacent parts of the estate, as in Bowman v Guthrie where the landlords had been concerned about the effects of use of the land by the applicant for landfill on the remainder of the estate in the form of pollution of the common grazings and adjacent crofts.

[13] Turning to paragraph (a), the wording of that paragraph, like paragraph (b), allowed conduct to be taken into account. The paragraph directed us to take account of “all the circumstances pertaining to the landlord”. That included more than the extent of land owned by the landlord. Mr Inkster’s argument sought to circumscribe what the court could take into account whereas, in Mr Murchison’s submission, the court was given a very wide ambit. That was consistent with what the defence contained in paragraph (a) was concerned with. It was concerned with hardship to the landlord. Matters which did not impact on the landlord, as matters of hardship, would not be relevant in any event. By contrast, however, any matter involving hardship to the landlord was relevant and must be taken into account.

[14] So, far from being a limiting provision, paragraph (a) was directing the court to look at all the circumstances which might cause hardship to the landlord. The conduct complained of here plainly fell into the ambit of the phrase “all the circumstances pertaining to the landlord”. They pertained to the landlords in the sense of being closely related to the landlords’ operation of the estate. The landlords were not averring conduct as an extraneous matter, being brought into the litigation on a vexatious basis. Instead the averments amounted to a litany of serious and disruptive conduct which had resulted in severe consequences so far as the landlords were concerned.

[15] We should not, therefore, read paragraph (a) as excluding circumstances pertaining to the tenant. Even if the matters complained of were to be characterised as circumstances pertaining to the tenant, they nevertheless had an effect on the landlord.

[16] Mr Murchison then considered what the effect of the applicant acquiring title to the croft land would be on the landlord. At the present time the landlord had a right to seek termination of the tenancy in the event that there was a breach of the statutory conditions contained in schedule 2 of the Act, such as interfering with rights of access for the respondents’ sporting tenants in the execution of hunting and shooting over the croft land. So the position presently was that the respondents had a remedy for misconduct on the part of the applicant. It was what Mr Murchison described as a “fairly nuclear remedy” and it was one which the respondents would not have if the applicant became an owner-occupier. The respondents were offering to prove that loss of this remedy would cause substantial hardship. The other remedies which might be available to them, such as proceedings in the Sheriff Court, had not proved to be a significant deterrent in the past. There was a second aspect to this also in that at the present time, under sec 26 of the Act, the respondents had the right to raise issues in relation to misuse of the croft. That was a matter he would return to later in his submissions.

[17] Staying with sec 13(2)(a) and (b), the material covered by the averments as to the applicant’s behaviour should be allowed to proceed to proof so that it could be shown what effect the loss of these remedies would produce.

[18] Mr Murchison then considered whether there was any ambiguity in the terms of paragraph (a) such as would exclude evidence as to the conduct of a tenant. In terms of resolving any ambiguity we should read the statute as a whole; Stair Encyclopaedia paragraph 1119 and the reference to finding the intention of Parliament “within the four corners of the Act” in Urras Oighreachd Ghabhsainn v Crofters of South Dell.

[19] In Mr Murchison’s submission the correct interpretation of sec 13(2)(a) was that the court should have regard to every circumstance impacting upon the landlord. If something impacted on the landlord it had to be taken into account. The provision was not a limiting clause but a permissive one. Mr Murchison referred to Davie v Sutherland. That case had looked at the question of whether, when determining a fair rent for the purposes of arriving at a price to be paid when a crofter bought his croft, regard had to be had to article 1 protocol 1 of the European Convention on Human Rights (“ECHR A1P1”) and to sec 3 of the Human Rights Act 1998, which required public authorities to interpret statutes in an ECHR compatible way. The landlord in that case had argued that the croft rent required to be increased in order to produce a fair purchase price and that 15 times the existing rent (the formula provided for in sec 14(2) of the Act) was a breach of A1P1. Reference was made to a passage at page 147 of the case report in which the court had said:

“It was not disputed that the tenant’s right to buy involved a deprivation of the landlords’ possessions or that these possessions could properly be described as comprising the total bundle of rights the landlord had in relation to the holding”.

An argument could be developed as to whether the landlord was being adequately compensated for consequences which went beyond the holding. In the present case the respondents might get compensated for the loss of Brickigoe itself (in accordance with the statutory formula) but not for the consequences incurred by such loss to the rest of the estate. In terms of the foregoing passage from Davie v Sutherland the landlords were not being compensated for that kind of loss. Mr Murchison made clear that he was not making an ECHR argument specifically but taking it more broadly than that. The court required to treat sec 13(2) as providing a “big umbrella” which provided shelter for all the adverse consequences to the landlord. Mr Inkster’s interpretation by contrast, offered a smaller umbrella and less protection. In Mr Murchison’s submission there was a harmony between his interpretation of sec 13(2)(a) and the right to buy regime generally whereas a restrictive interpretation of the matters which could be taken into account under the section struck a discordant note.

[20] Taking that broader approach, the consequences to the landlords in the present case would include the loss of two means by which they could terminate the tenancy. One was by way of proceedings for a breach of the statutory conditions contained in schedule 2 and the other was for a breach of the duties imposed by secs 5AA, 5B and 5C, which included the duty not to misuse the croft. “Misuse” was defined at sec 5B(2) as anything other than putting the croft to such purposeful use as described there. A crofter was obliged to cultivate his croft and was permitted to do such other things as were consented to by the Crofting Commission but beyond that any use of the croft could found an application for removal on the basis of misuse.

[21] Developing that argument in the context of the present case, Mr Murchison submitted that acts done outwith the boundaries of the croft could nevertheless constitute misuse of the croft. By way of analogy he submitted that if terrorist activities elsewhere in the world were being conducted from a base in Syria one would have no difficulty in saying that the base was being used for terrorist activities. In the present case incidents such as the putting of sugar into the petrol tank of vehicles could be taken into account notwithstanding that they happened off the croft, because it could be said that the activity was being conducted from the croft. What one had to do was to look at the totality of what was averred and conclude, from that, whether it amounted to misuse of the croft. If that kind of conduct could not be taken into account in terms of sec 5B(2) that was dreadfully disappointing. In Mr Murchison’s submission, however, there was a sufficient nexus between the activities complained of and use of the croft such as to enable those matters to be taken into account for the purposes of that statutory provision.

[22] In terms of Jamieson v Jamieson the test for irrelevancy was whether an action must necessarily fail even if the pursuers’ averments were proved in full. There was no onus on the pursuer to show that if he proved his averments he was bound to succeed; per Lord Normand at page 257. Mr Murchison also relied on a passage from the opinion of Lord Normand at page 258 which emphasised the need to go beyond looking at each individual incident in isolation and to look at the totality of the picture. In the present case what had been happening on the estate had been devastating and the respondents were extremely concerned at the prospect of having the applicant as a neighbour without any of the restraints on his behaviour presently available to them.

[23] Asked by the court as to why the respondents had not already taken action for the termination of the applicant’s tenancy, Mr Murchison explained that it was a question of lack of funds. Moreover there had recently been an improvement in the applicant’s behaviour, possibly related to the fact that this application was pending.

[24] It could be said with certainty that matters would be worse in the future if acquisition of title by the applicant took place. The threat of complaining to the Crofting Commission was not an effective control, as demonstrated by their failure to intervene hitherto. After purchase by the applicant what was left to the respondents by way of remedy was not enough: the “nuclear option” was needed.

[25] If the “nuclear option” remained in place there were three possible outcomes. The first one was that the applicant might moderate his behaviour under threat of losing his tenancy. Secondly, the applicant might not moderate his behaviour and the tenancy could be terminated. Thirdly, the applicant might moderate his behaviour and come back with a fresh application in ten or fifteen years’ time as a changed man. These potential outcomes would be lost if the present application was granted.

[26] Mr Murchison then referred to paragraph 1131 of the Stair Encyclopaedia Volume 12 regarding the presumption against the taking away of rights or imposing of burdens. What was said there was consistent with his submission as to the proper interpretation of sec 13(2)(a). In the present case the consequence of granting this application would be to remove a right from the respondents and that should not be done unless the legislation required it unequivocally.

[27] Mr Murchison then took us to particular passages in his pleadings giving illustrations of the points he had made. In answer three, under the heading “Background Information” it was averred that Brickigoe was at the heart of the estate, in a central location, and the significance of that was that there would be inevitable interaction between the estate, perhaps particularly the estate’s sporting tenants, and the applicant notwithstanding that the applicant had become an owner-occupier. There was also reference in that section to the significance of archaeological interests, it being averred that the croft formed part of an area intended by the estate for future archaeological exploration. It was averred that all such potential, both in terms of exploitation of the sporting rights and development of the archaeological interest, would not be capable of being realised should the applicant become owner of the croft. Reference was again made to the consequences of the respondents losing their right to take proceedings directly against the applicant under sec 26 of the Act. The respondents’ averments were a matter for proof. Under reference to Jamieson v Jamieson it would be difficult for the court to conclude at this stage that the respondents’ case must fail even if they were to prove their averments. The basic position was that there would be a change in the applicant’s legal relationship with the respondents and the respondents were offering to prove that that would be to the detriment of sound estate management and would also cause a substantial degree of hardship to them.

[28] With reference to what Mr Inkster had said about the landlords’ conduct, Mr Murchison submitted that it would be legitimate to look at the landlords’ behaviour but only to the extent of asking whether they had been the author of their own misfortune and whether the remedy to the situation rested with themselves.

[29] Finally, like Mr Inkster, Mr Murchison had not been able to find a case which was in point. That, however, was unsurprising because this case dealt with an exceptional situation and the question was “is there a remedy for the landlord in such an exceptional case as this?”. In Mr Murchison’s submission there was such a remedy: to refuse the application on the basis of sec 13(2).

Mr Inkster in response

[30] Mr Murchison had submitted that there was nothing in sec 13(2)(b) to exclude averments as to the conduct of the crofter but, equally, there was nothing in the wording to include such averments. What sec 13(2) related to was the croft and the estate and the questions which arose were questions as to the physical effect of separating the two, not questions as to the actings of the parties nor what consequences granting an application would have on the relationship between parties. Crofting tenants came and went; crofting landlords came and went. What the section was looking at was the impact on the estate of removal of the croft from it, not what advantages there were to the landlord in being able to control the behaviour of the tenant. None of the reported cases had anything to do with the actings of the parties. Bowman v Guthrie was looking at the impact of certain activities which were being carried out on the croft on the surrounding land. The case had not been concerned with the behaviour of the tenant. In general terms it was the impact of the ground passing out of the estate which mattered and that had nothing to do with individual actions of a crofter.

[31] Reference had been made to schedule 2 and to rights of access. However, were the application to be granted, the respondents would still have their existing rights of access and would have remedies to enforce them. In that regard, it would be a great deal easier to deal with any problem by way of an interdict in the Sheriff Court rather than by way of an application under the provisions of the 1993 Act. So it was hard to see how purchase of the croft could give rise to substantial hardship.

[32] Much had been made of sec 26 and Mr Murchison had explained that it had not been utilised for want of funds although, clearly, the respondents had the funds to defend the present application. The true reason why sec 26 had not been utilised, in Mr Inkster’s submission, was that the respondents would not have been able to rely on it because none of the behaviour complained of amounted to misuse of the croft. There had never been any real intention on the part of the respondents to use sec 26 because they knew full well that there was no prospect of succeeding.

[33] With reference to Mr Murchison’s submission that actings taking place outwith the croft could be construed as misuse of the croft, because they were being orchestrated from there, there was no truth in that suggestion in the present case. The applicant did not live at Brickigoe and the analogy with a Syrian terrorist base would be with the applicant’s home, not the croft.

[34] Far from misusing the croft, the applicant intended to improve it. But his plans were on hold and his hope was that when he became owner of the croft peace would reign as had happened between other tenants of the estate who had acquired their crofts and the respondents.

[35] The case of Jamieson v Jamieson was not relevant. It was concerned with the dismissal of a whole case. What was under consideration here was the relevancy of particular averments. But, if Jamieson was relevant, it was because ultimately the evidence which would come out of a proof of those averments would not make any difference to the court’s decision when applying itself to sec 13. These averments were, therefore, irrelevant.

[36] The relevance of Davie v The Trustees of the Countess of Sutherland was not obvious either. It had not been about questions of conduct. The loss of control of a croft could always be seen as constituting a degree of hardship. That was what happened with every croft purchased from an estate; the estate lost control over it. But sec 13(2) dealt with that by providing that where a substantial degree of hardship to the landlord or substantial detriment to the interests of sound management of the estate was proved the court could refuse authority to acquire the land. But that had nothing to do with the actions of the parties as between themselves.

Response by Mr Murchison

[37] Mr Murchison doubted whether an application for an interim interdict would be a more effective remedy for the landlords than coming to the Land Court for an order for removal. It was the threat of removal which constrained the behaviour of the tenant. That was far more effective than the threat of interdict. In any event the threat of interdict did not have the same effect on this particular applicant as it might have on others.

[38] With reference to sec 5B, it was recognised that there was an issue as to what constituted “misuse”. The court might take advantage of this case to illuminate the matter. But in Mr Murchison’s submission it was broader than the question whether the croft was cultivated or not. The respondents had pled a coherent argument that the croft was being misused by allowing criminal activities to take place on it or from it and it would be very disappointing if these facts and circumstances were not to engage the provisions of sec 5B.

[39] Jamieson v Jamieson was relevant on the basis that the greater included the lesser. On that basis it remained relevant although only certain averments were under attack in this debate.

Decision

[40] The question in this case is whether the averments we have quoted are, in the context of the respondents’ pleadings as a whole, capable of supporting the statutory grounds of refusal of an order under sec 13(1)(a) contained in sec 13(2).

[41] So far as the interpretation of paragraph (a) of sec 13(2) goes, we agree with Mr Murchison that there is no warrant for interpreting the words “all the circumstances pertaining to the landlord” narrowly. That is because (a) on its terms it is a wide provision – “all the circumstances pertaining to the landlord”, and (b) we accept that where rights are being taken away from a person a wide interpretation is required; Stair Encyclopaedia Vol 12,paragraph 1131. We do not accept that the words “and having regard to the extent of land owned by him” have the effect of restricting the ambit of the earlier wording in any way. On a natural reading, all these words are doing is specifying a matter which the court must consider in addition to all the other circumstances pertaining to the landlord. Had the intention been to confine the court’s consideration to the effect of severance of the croft from the rest of the estate it would have been easy for Parliament to say so. In any event that is covered by paragraph (b) so paragraph (a) must be casting the net wider. In broad terms, it seems to us, paragraph (a) is dealing with circumstances affecting the landlord and paragraph (b) with circumstances affecting the estate.

[42] That said, of course, there has to be a limit. Words in a statute have to be interpreted in context; Stair Encyclopaedia Vol 12,paragraph 1119. The context here is that the landlord is seeking to prove a substantial degree of hardship. So the averments must relate to hardship. They must set out a case whereby a substantial degree of hardship is likely to be caused to the landlord by the granting of an order under sec 13(1).

[43] At this stage it is pertinent to remind ourselves of the correct approach to assessing substantial hardship under paragraph (a) and substantial detriment under paragraph (b) of sec 13(2). It involves “a comparison of the position of the landlord in the absence of such an order with the position in which he would find himself following upon such an order” (Fraser v MacKintosh at 46). It is on the basis of this approach that the relevancy of the respondents’ averments has to be tested.

[44] Applying that approach to this case, the change in circumstances on which the respondents rely is the loss of the right to threaten the applicant with eviction. They say that such a threat is a valuable and much needed means of control over the applicant’s behaviour. The granting of an order under sec 13(1) will, of course, remove that right as it does in all cases of croft purchase. The respondents here offer to prove that the threat of eviction has been effective in the past (the period of “relative peace” from October 2009 to May 2011) and that its removal will make matters much worse.

[45] Carrying out the comparative exercise, it is clear from the respondents’ averments, taking them pro veritate as we must at this stage, that this is a case in which the landlords are already experiencing a considerable degree of hardship at the hands of the applicant. For example, it is said in the second paragraph of the section headed “Substantial degree of hardship” in Answer 3 that “One of the agencies which refers clients to the Respondent’s shooting tenants has stated that further clients will not be referred as a direct result of the Applicant’s behaviour, until the situation is put under control.” The averment that this sort of effect is already being experienced in the absence of a sec 13(1) order prompts us to ask “how much worse can matters get if the respondent is allowed to buy Brickigoe?”. At para [25] above we have recorded Mr Murchison’s submission that it could be said “with certainty” that matters would be worse if that happened. But that requires to be supported in the pleadings by averments as to what it is the respondents say would happen which would make matters so much worse than they already are that the order authorising acquisition of the croft could be said to have caused a substantial degree of hardship or substantial detriment to sound estate management.

[46] This, it seems to us, poses a real difficulty for them because, of course, they cannot see into the future. Thus, all they are able to aver is that they have:

“a reasonable and justified apprehension that were the Applicant to become owner, there will be deterioration in his conduct resulting in loss, damage and disruption to the Respondents, and the Respondent’s employees, guests, other tenants and invitees. Were such purchase to be authorised, the Respondent will then be left in a position where the Applicant will be an adjacent landowner with whom they will inevitably require to periodically interact or meet. Furthermore, the Respondent will require to use rights of access through or over the croft. Separately, the Respondent or their sporting tenant and paying guests will require access through or over the croft. In all of these circumstances the Respondent is reasonably apprehensive that the Applicant (freed from the apparent constraint of being a tenant) will act to the detriment, harm and loss of the Respondent. … While the situation is presently under a degree of control, it is anticipated that should the Applicant purchase the croft, the position will be exacerbated and the bookings of shooting parties will diminish. This would cause substantial hardship to the Respondent.” (Answer 3, section headed “Substantial Degree of Hardship”.)

[47] It is doubtful whether “a reasonable and justified apprehension” is a sound enough foundation for relevant averments of fact but, leaving that aside, the applicant’s behaviour would of course have to become a great deal worse, and would have to be attributable to the making of the order, before it could be said that the making of the sec 13(1) order had caused a substantial degree of hardship to the landlords or material detriment to management of their estate. In that connection it is relevant to note something that will not change if the order sought is made. That is the protection of the criminal and civil law. The respondents say that the protection offered by the criminal and civil law has not been effective hitherto but it cannot be disputed that the criminal and civil law restrain the applicant’s behaviour to some extent and, indeed, were his conduct to get much worse, as the respondents aver is likely if an order under sec 13(1) is made, it will probably attract more severe criminal penalties than hitherto, which may prove more effective deterrents.

[48] It seems to us therefore, that a combination of the fact that a substantial degree of both hardship to the landlords and detriment to sound estate management already exists (on the respondents’ averments) and the understandable inability of the respondents to aver to what extent the applicant’s behaviour is likely to deteriorate were a sec 13(1) order made, means that the averments under discussion are not capable of supporting a defence under 13(2). No adequate basis is pled on which the court could conclude that things are likely to deteriorate to such an extent as a result of the making of the order that the making of the order would cause a substantial degree of hardship. The respondents point to the period of relative calm revealed in the Schedule of Incidents, said to be a result of a threat of eviction. But that period ended as long ago as May 2011 and has been followed by extremely serious incidents since then, including a serious assault on an estate worker, threatening behaviour resulting in two convictions for breach of the peace in the Sheriff Court, the release of pheasant poults belonging to the estate from their pen and, as recently as March 2014, the removal of new signs from their supports at Thrumster House. It seems therefore that the availability of the threat of removal has not been operating as a restraint on the applicant’s conduct even during the currency of the present action, which has been in court since 2011.

[49] The fact of the matter seems to be that this is a case, rather like Fraser v MacKintosh,in which hardship is already being caused to the respondents and the pleadings do not show how the making of an order under sec 13(1) is going to produce substantial additional hardship or substantial additional detriment to the management of their estate. Accordingly we have concluded that the averments relating to the applicant’s conduct should be refused probation.

[50] This has a knock-on effect so far as other averments, based on those relating to conduct, are concerned. We consider that, in addition to the averments set out under the heading “Applicant’s conduct” and in the Schedule of Incidents, the first two paragraphs of the section headed “Substantial degree of hardship” and the whole of the respondents’ case on detriment to sound estate management fall to be deleted.

[51] In coming to this conclusion, we are not without sympathy for the respondents but they have not been without a remedy. They could have taken steps under sec 26 for termination of the applicant’s tenancy. We were told that the reason for that was lack of funds but they are now having to incur expenditure in opposing this application. It may be that there was also truth in Mr Inkster’s surmise that they could not be confident of success in such an application. As a matter of general observation, and not in any way bearing on the present facts, the termination of a croft tenancy is not something done lightly. But if a crofter’s conduct is not sufficient to found an application for the termination of his tenancy it is difficult to see why it should debar him from being authorised to purchase his croft. For the avoidance of doubt, however, that is not the basis on which we have decided the outcome of the debate. We have come to our decision for the reasons already given. These, essentially, involve the application of the principle enunciated in Jamieson v Jamieson to the effect that even if the respondents prove all they offer to prove they cannot succeed in a case based on the applicant’s conduct. Their problem is that they do not aver enough as to how matters would be worse, and how much worse, were an order under sec 13(1) to be granted.

Further procedure and expenses

[52] The case will now proceed to proof on the respondents’ remaining averments. Parties should liaise with the court with a view to agreeing dates and a venue.

[53] So far as expenses are concerned, we have allowed 28 days for the lodging of written motions and submissions anent expenses of the debate.