Decision of the Scottish Land Court

Calum Maclean & others (Appellants) v The Crofting Commission (Respondents)

Case reference SLC 54/16
Lord Minginish, Chairman, and John A Smith
2 November 2016

[1] By our order of 21 September 2016 we dismissed this appeal for want of jurisdiction and allowed parties 21 days for the lodging of motions and submissions on expenses. These have now been received.

[2] The respondents, despite having succeeded, have moved for a finding of no expenses due to or by either party, whereas the appellants, despite having failed, have moved for an award of expenses against the respondents.

[3] The explanation for that unusual state of affairs is, of course, to be found in the wider background to this case. The appellants are the former members of the Upper Coll, Isle of Lewis, Grazings Committee and were removed from office by the respondents in terms of sec 47(8) of the Crofters (Scotland) Act 1993 (“the Act”). In their place a grazings constable was appointed. This – and similar proceedings against members of two other grazings committees – caused a storm of protest in the crofting community and beyond, resulting in the intervention of the Scottish Government and, more relevantly for present purposes, a full retreat by the respondents (although not, it should be said, by their Convener) from their earlier position, in terms of a public apology issued by them on 28 September 2016, the first two sentences of which are as follows:-

“Three unprecedented cases have been considered by the Commission under section 47(8) of the Crofting Act and resulted in committees being put out of office. The decisions taken by the Commission have created a poor result for everyone involved.”

[4] That is tantamount to an acknowledgement that the decision to remove the present appellants – and others – from office was, if not actually wrong (and, of course, its merits have not been adjudicated on by any court), at least ill-advised. It is against that background that the motions before us have to be seen.

[5] The respondents resist the motion against them. They argue that they have not been guilty of any of the things which are normally required in order to justify a successful party being found liable in expenses to an unsuccessful party. Thus, they point out, they have not been guilty of any improper or unreasonable conduct of the litigation.

[6] Whilst that is true, it is, in our view, taking too narrow a view of matters. As was said by Lord President Robertson in Shepherd v Elliot (1896) 23 R 695 at page 696 “The principle upon which the Court proceeds in awarding expenses is that the cost of litigation should fall on him who has caused it.” The respondents argue that they can hardly be said to have caused the appellants to bring an incompetent (in the technical legal sense) appeal to the Court. Had the appellants challenged their removal from office in a competent process the respondents would no doubt now be meeting their expenses, as part of a process of calling off hostilities, but, they argue, they ought not to be expected to pay the expenses of an incompetent process. However, having been removed from office, it was only to be expected that the appellants would look for a legal remedy whereby to vindicate themselves and where else to look but to this Court? Judicial review in the Court of Session was certainly an option (and, as it turned out, was the avenue which ought to have been pursued) but the Land Court being the recognised forum for appeals from the respondents, it was not unreasonable for the appellants and their advisers to make it their first port of call. As it turned out, due to a lacuna in the Act, we had no jurisdiction to hear the appeal. But that was not something which was blindingly obvious from the start: there was a perfectly stateable argument to the effect that we did have jurisdiction. In those circumstances, we do not think the appellants can be faulted for raising these proceedings. But, even if they can, they would never have been under necessity of even contemplating such a step were it not for the respondents’ decision to remove them from office in the first place. That decision having now been repented of, we consider that justice requires that the appellants be found entitled to their expenses and we have so found. We recognise that this is a very unusual result but it is justified, in our view, in the exceptional circumstances of this case.

[7] The appellants have also moved for sanction for the employment of junior counsel. We have no difficulty with that; the question in issue was sufficiently complex to justify it.