Decision of the Scottish Land Court

Mrs Irene Margaret Bray (Applicant)

Case reference SLC 64/15
before
Lord Minginish, Chairman
24 November 2015

[1] Intimation of this application by way of advertisement in The Shetland Times produced a response from Mr Stuart Hill of Ocraquoy, Cunningsburgh, Shetland, on behalf of six respondents living in New Zealand and Australia. Two of these respondents have now dropped out but Mr Hill seeks to be allowed to represent the remaining four. His application is opposed by the applicant.

[2] We have refused the application for the following reasons:-

(i) Mr Hill’s authority to act for those whom he seeks to represent has not been properly vouched. He has produced what purport to be Powers of Attorney from them but they are neither notarised nor registered with the Office of the Public Guardian in Scotland nor with any equivalent authority in New Zealand or Australia.

(ii) He is reported as denying the jurisdiction of the Scottish courts over Shetland. He has produced a letter bearing to be from him and addressed to the Prime Minister. It is on the headed notepaper of “The Sovereign Nation of Shetland”. It purports to give notice of Shetland’s sovereignty and claims “allodial title of all land within two hundred miles of any point on any of the Shetland Isles”. More seriously, the applicant’s agents have lodged copy from the online version of The Guardian of 15 December 2011 and, more recently, The Shetland Times of 23 October 2015 in which Mr Hill is reported as refusing to recognise the jurisdiction and authority of Lerwick Sheriff Court. Mr Hill has had the opportunity of commenting on these reports in his answers but has simply denied that they are relevant (para 3.3 of his answers dated 6 November 2015). He does not deny their accuracy. In our view they are relevant. Although Mr Hill has not taken any issue with the jurisdiction of the Land Court to deal with this case it is a Scottish court and Shetland is within its jurisdiction. Mr Hill can hardly expect to be allowed to represent others, as opposed to himself, in courts whose right to exercise such jurisdiction he has so recently impugned.

(iii) We are not satisfied that he is a person likely to be able to present the respondents’ cases efficiently in accordance with the requirements of Rule 100(3) of our Rules. That rule says:

“A party may, with the permission of the court, be represented by –

(a) a member of the party’s family …;

(b) any other person where the court is satisfied that the person is likely to be able to present the party’s case efficiently and to assist the court in reaching a just result in accordance with rule 1”.

Rule 1(1) says:

“The purpose of these rules is to enable the court, with the assistance of the parties, to reach a just result fairly in any case with due regard to economy, proportionality and efficient use of the resources of parties and the court and any provision in the rules falls to be read in light of that purpose.”

Mr Hill is not a member of the family of any of those he seeks to represent. The efficient presentation of a party’s case (Rule 100(3)) and “due regard to economy, proportionality and efficient use of the resources of parties and the court” (Rule 1(1)) require an appropriate sense of relevancy, that is to say an ability to focus on what the case is about. It also requires an understanding of what this court, with its statutorily circumscribed jurisdiction, can and cannot competently do. This case is about whether the single merk with which it is concerned is a croft and, if so, whether the applicant is the tenant of it. The answers lodged extend beyond that to the ownership and occupation of two other merks with which this case is not concerned, at least directly. We appreciate that it may be necessary to narrate some of this by way of context but the answers lodged go beyond that and seek, in effect, to have this court’s decision of 25 November 1935 declared void as having been procured by fraud (although that case concerned, again at least directly, only the other two merks). That is something this court cannot do. Reduction of that decision, if competent at all, is a matter within the jurisdiction of the Court of Session. So there is a risk of time and other resources being spent to no achievable purpose.

[3] The effect of our decision is that those whom Mr Hill sought to represent, or who sought to have Mr Hill represent them, must now either conduct their own cases or arrange representation which is acceptable to the court. The most obvious way of ensuring that is to instruct a solicitor with experience of crofting law and any specialities of landholding in Shetland. There are a number of those in Lerwick.

[4] It should be noted, however, that Mr Hill’s involvement on behalf of these respondents, although now terminated so far as the court is concerned, will not have been entirely in vain. He appears to have carried out a great deal of research into the history of matters. A competent solicitor will be able to identify what use to make of that material. Everything to date will not, therefore, have been loss and delay.

[5] Mr Hill remains in the case as representing himself. The applicant’s agents argue that he has no title and interest to oppose the application. We will leave that issue to one side for the moment. The main players here are the parties in New Zealand. When it becomes clear what further they wish to do in relation to the application we will consider what further procedure is appropriate.

[6] In order to forestall any motion for expenses to date the applicant’s agents may be thinking of making, we would say that it is too early to consider that issue at this stage. Only when the case has been concluded will it be possible to take a view as to the value of the considerable work undertaken by Mr Hill on behalf of the respondents.