Decision of the Scottish Land Court

Helen Thom (Appellant)
v
Scottish Ministers (Respondents)

Case reference SLC/65/17
before
Iain F Maclean, Deputy Chairman, and John Smith
20 March 2019

NOTE

Background

[1] The Scottish Government Rural Payments and Inspections Division (“SGRPID”) on 4 December 2015 informed the Appellant by telephone that she had been selected for a cattle traceability inspection. Production 16 bears to be a telephone attendance note by Andrew Johnston, the SGRPID official who made the call. On 5 December 2015, the Appellant notified to the British Cattle Movement Service (“BCMS”) the off-movement of four cattle from a holding referred to as 4 Slodahill Cottages, Lockerbie (CPN 75/319/7012) on 2 December 2015. The inspection commenced on 10 December 2015. Production 17 is an email from Gordon McMiken of SGRPID to the Appellant dated 9 December 2015 making the arrangements for the following day. In the course of the inspection, the Appellant made available to SGRPID officials the CATTLE RECORDS section of her holding register [Production 14]. It recorded that on 3 December 2015 she had sold four cattle, identified therein by reference to their sex, eartag numbers, dates of birth/purchase, and breed. In the column headed SALES VENUE was entered “Woodward.” The final column in the CATTLE RECORDS section of the Appellant’s holding register was headed PRICE. In that column, the words “Contra to Hay” were entered against the four cattle. There being no subsequent notification to BCMS of a corresponding on-movement of any of the four cattle to either a slaughter-house or another registered holding, SGRPID sought further information from the Appellant with the object of verifying the off-movements the Appellant had recorded in her holding register as having taken place on 2 December 2015 and notified to BCMS on 5 December 2015, but no new information was forthcoming from her at that stage.

The decision letter

[2] On 13 December 2016, the Respondents issued a decision letter [Production 1] informing the Appellant that they were applying a 75% reduction to all 2015 Common Agricultural Policy (CAP) support scheme payments (Basic Payment Scheme (BPS) 2015 and Less Favoured Area Support Scheme (LFASS) 2015) to which she otherwise would have been entitled, due to what they characterised as intentional non-compliance with Statutory Management Requirement 7 (“SMR 7”) relating to identification and registration of bovine animals, compliance with which is a requirement of the cross-compliance regime established by Regulation (EU) No. 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the CAP. The decision letter concluded that:

“After careful consideration of the evidence gathered, SGRPID are of the opinion that movement notifications for the four cattle, on the date detailed above, were submitted to BCMS by you, in your full knowledge that these animals were not alive or present on your holding on that date and by notifying BCMS of the movements you would circumvent the application of SMR 7 Cross Compliance penalties against your 2015 subsidy payments.”

The application for review

[3] The Appellant on 10 February 2017 applied for a review of the Respondents’ decision. Her application was timeously made within the 60 days following the date of the decision letter in conformity with the procedure set out in regulation 5(1) of The Rural Payments (Appeals)(Scotland) Regulations 2015 (S.S.I. 2015/194)(“the 2015 Regulations”). Along with her application [Production 2], she submitted a copy letter addressed to the SGRPID Southern Area Office in Dumfries bearing the date 5 September 2016 [Production 24] explaining that the four cattle had been sold to a Mr M Hay, Slodahill Farm, Lockerbie, rather than contra-traded for hay, as the decision letter had wrongly suggested, and that she had been advised that the cattle were to be slaughtered at Woodhead Abattoir (incorrectly recorded in the final column in the CATTLE RECORDS section of her holding register as Woodward). The Respondents maintain that they saw this letter for the first time when it was submitted to them with the application. In a paper apart [Production 25] also submitted as part of her application, the Appellant elaborated on the transaction with Mr Hay that informed the off-movement she had recorded as having taken place on 2 December 2015 and notified to BCMS on 5 December 2015. Michael Hay had been working on Slodahill Farm (operated by the Appellant and her husband, Ashley Thom), but with movement restrictions having been placed on that holding (CPN 73/319/0042) on 3 December 2015, “the farm’s bank account was at its limit and Mr Hay was told that he could not be paid because of the cross compliance restriction.” No movement restriction had been placed on the Appellant’s four cattle, however, and Mr Hay had agreed to accept them in lieu of pay he was due, telling her that they would be taken to Woodhead Abattoir at Colne. The Appellant went on to relate her understanding that Woodhead could not take the animals and they were instead slaughtered nearby by Riley Bros of Burnley.

The 2015 Regulations

[4] The 2015 Regulations, which came into force on 12 June 2015, provide for review of decisions of the Respondents in relation to payment of certain agricultural subsidies and other rural payments. An application for review of a “relevant decision”, meaning (for this and subsequent defined terms, see regulation 2 (Interpretation) of the 2015 Regulations) a decision specified in any of the paragraphs of the Schedule to the 2015 Regulations, is by regulation 5(1) to be made no later than 60 days following the date of the “decision letter”, which is the letter from the Respondents notifying the “beneficiary”, meaning the person to whom a relevant decision is directed, of the relevant decision. Regulation 6(1) provides that where an application is made in accordance with regulation 5, the Respondents must review the relevant decision, and regulation 6(2) stipulates that they must provide the beneficiary with an opportunity of being heard at a review meeting to be held within 60 days of receipt of the application on any matter relevant to the application.Regulation 6(3) requires the Respondents to intimate the date of the review meeting to the beneficiary in writing, while regulation 6(5) stipulates that for the purposes of this regulation, a review meeting may be conducted in person or, with the agreement of the beneficiary, by use of telephone or video conferencing facilities or such other arrangements by which the beneficiary is able to participate in the meeting.

[5] Following the review of a relevant decision in accordance with regulation 6, the Respondents may in respect of that decision - (a) confirm it; (b) amend it; or (c) revoke it in its entirety and substitute a new decision: regulation 7(1). The Respondents are required by regulation 7(2) to issue their decision under regulation 7(1) in a written report. Regulation 7(3) specifies that the written report must set out the following: (a) the decision of the Respondents following the review; (b) the requirements of the scheme in respect of which the claim was made; (c) where appropriate, the facts relied upon by the Respondents as showing that the requirements were not met; and (d) where appropriate, the matters (in fact or in law) which are understood to remain in dispute. A written report must, in terms of regulation 7(4), be sent by recorded delivery post to the beneficiary before the expiry of the period of 60 days beginning on the date intimated to the beneficiary under regulation 6(3), being the date of the review meeting.

[6] Regulation 8(1) of the 2015 Regulations allows for an appeal by a beneficiary against a decision under regulation 7(1) on any issue of fact or law to the Land Court. An appeal under regulation 8(1) must be made within 60 days of receipt of the written report (regulation 8(2)) and where the Respondents have not sent a written report within the period of 60 days referred to in regulation 7(4), the beneficiary may instead appeal against the relevant decision on any issue of fact or law to the Land Court (regulation 8(3)) within the period of 60 days beginning on the date on which the period referred to in regulation 7(4) expires: regulation 8(4). In conformity with regulation 8(6), an appeal must, so far as possible, specify – (a) the grounds of appeal; (b) what finding of the Respondents is challenged; (c) any facts the beneficiary seeks to rely on; (d) the arguments to be advanced in support of the appeal; and (e) brief details of the legislative provisions or judicial authorities to be referred to in relation to the appeal. In determining an appeal, the Land Court may - (a) confirm the Respondents’ decision; (b) amend or alter that decision in any respect which it considers appropriate; (c) substitute for that decision any decision which it considers appropriate; or (d) refer the matter back to the Respondents to decide the matter of new, and any such determination of the Land Court is binding upon the Respondents and the appellant: regulation 9(2). It is provided by regulation 9(3) that where an appeal is made under regulation 8(3), regulation 9(2) shall apply in relation to the relevant decision as it applies in relation to a decision under regulation 7(1). In the interests of completeness, it may be added that by virtue of regulation 9(4), any party to a matter determined by the Land Court by virtue of the 2015 Regulations may appeal to the Court of Session against the determination on a question of law.

The review

[7] The Appellant, in applying for a review of the Respondents’ decision, ticked the boxes on the relevant application form to confirm that she did not wish to attend the review meeting, but instead would wish to have the review conducted by telephone. A review meeting was scheduled to take place on Monday 3 April 2017 at 10:30 am, these details being intimated to the Appellant in writing in a letter to her from Quintin Donald, Principal Agricultural Officer at the SGRPID Southern Area Office in Dumfries, dated 22 March 2017 [Production 27], in conformity with regulation 6(3) of the 2015 Regulations. That letter confirmed that Mr Donald would contact the Appellant by telephone on the number she had supplied on that date and at that time.

[8] Mr Donald telephoned the Appellant at 10:30 am on Monday 3 April 2017. The Appellant did not pick up, but Mr Donald was able to leave a message on her answerphone asking her to get back to him as soon as possible. He indicated that “we will continue to do the appeal [sic] if we can’t make contact.” Mr Donald did not effectually terminate his call, with the consequence that the Appellant’s answerphone proceeded to record his ensuing conversation with an unidentified office colleague. A transcript of that conversation has been lodged by the Appellant as Production 3. Parties have agreed by way of joint minute for the purpose of this appeal that Production 3 is a true and accurate transcript of the message left by Mr Donald on the answerphone.

[9] In his conversation with his unidentified colleague, referred to in the transcript as A N Other (“ANO”), whose replies are not always decipherable from the answerphone recording, Mr Donald (“QD”) begins by speculating on the Appellant’s motives in not picking up his call, before venturing into even more incendiary territory:

QD She’ll say she ‘did not get your letter’ or some shit will come out – umm, we’ll see.

ANO ?????? (CAN NOT HEAR HIM)

QD … they probably playing games but I, you know, will maybe sit here ready to go with them in front of me and then she maybe phone back in an hour to try catch me a wee bit unawares or something. Some strategy going on (laughs long)

ANO … of course.

QD Aye (laughs)

ANO CAN NOT HEAR HIM (but laughs)

QD … will not be caught out by them (laughs) but I will (he hesitates) but if they phone me back I will not be taking their call immediately – I will say I will phone them back in ten minutes so that it is back on my terms again.

ANO Mmmmm

QD Bastards so they are.

ANO and QD Both heard laughing.

ANO You know that (QD laughs) … I think this is the only way to hurt them is big penalties.

QD Yup. I would love to put them out of business but there is no chance…”

[10] Unsurprisingly,the Appellant did not revert back to Mr Donald to participate in the review meeting that morning, but as a result of a complaint made by the Appellant, and following the intervention of Annabel Turpie, SGRPID Chief Operating Officer (Agricultural Delivery), at Saughton House, Edinburgh, it was arranged that the Appellant’s review (inaccurately referred to as an appeal also in Ms Turpie’s letter to the Appellant dated 6 April 2017 [Production 4]) would be undertaken by Gregor Caldwell, Principal Agricultural Officer for South East Scotland, and that Mr Donald would not be involved in any future discussion [of her case].

[11] The Appellant on her original application form had requested that the review meeting take place by telephone on a Monday morning. On Friday 7 April 2017, Mr Caldwell telephoned the Appellant but received no reply. He left a message, and thereafter sent an email [Production 28] to the Appellant, offering her an appointment for a telephone review at 10 am or 11:00 am on Monday 10 April 2017. The Appellant’s husband, Ashley Thom, contacted Mr Caldwell on the afternoon of 7 April 2017 and advised that he would bring Mr Caldwell’s telephone message and email to his wife’s attention. The Appellant did not make contact with Mr Caldwell.

[12] Mr Caldwell sent a further email to the Appellant at 09:41 am on [Easter] Monday 10 April 2017 asking that she confirm that she was able to carry out the review at 10:00 am or 11:00 am that morning [Production 29]. The Appellant did not respond. He attempted to contact the Appellant again at about 11:29 am that morning, but was unable to leave a message. He sent a further email to the Appellant at the same time asking her to contact him to carry out the review [Production 30], to which she did not respond. 60 days from 10 February 2017 was 11 April 2017. Mr Caldwell emailed her again on Wednesday 12 April, asking her to contact him to carry out the review [Production 31], but she did not respond. He attempted to telephone her on Thursday 13 April 2017, but was unable to leave a message. He sent a further email that day asking her to contact him to arrange to carry out the review [Production 32], but she did not respond.

[13] The Appellant responded to Mr Caldwell’s email of Thursday 13 April 2017 five days later, on Tuesday 18 April 2017, by way of a letter sent as an attachment to an email [Production 33]. The review meeting eventually took place on Monday 24 April 2017. The report of the review was issued on Monday 19 June 2017 [Production 5]. The outcome of the review was that the Respondents confirmed their original decision.

The appeal to the Land Court

[14] An appeal under regulation 8(1) of the 2015 Regulations is a full appeal, and not merely a review of the review, and may entail the Land Court hearing the evidence and submissions of the parties of new as a preliminary to determining the appeal: cf. Blythe v Scottish Ministers, (RN SLC/10/12) Order and Note of 15 August 2012, at paragraph [13]. When the hearing was first fixed, it was upon that basis that we were given to understand this appeal would be proceeding. The appeal as lodged by the Appellant both challenged the findings in fact made by the Respondents, upon the basis of which they had rejected the Appellant’s explanation of the transaction that generated the off-movement, concluded that the four cattle were not alive or present on the holding on that date, and assessed this as a case of intentional non-compliance with SMR 7, and advanced legal arguments that the Respondents had failed to comply their obligations in respect of the procedural time limits for review of a relevant decision provided for in regulations 6(2) and 7(4) of the 2015 Regulations.

[15] The appeal was appointed to be heard during the week commencing Monday 25 June 2018, following the conclusion of the hearing in Application RN SLC/90/17, an appeal at the instance of the Appellant’s husband, Ashley Thom, against another decision of Scottish Minsters, in Dumfries Sheriff Court. It having become clear early in that week that the hearing in Application RN SLC/90/17 would overrun parties’ original estimates of how many court days it would require, the hearing of this appeal was discharged, and by agreement of parties, it was appointed to be heard instead within George House, Edinburgh, on a date to be fixed. Our Order dated 8 August 2018 allocated the hearing for Tuesday 11 and Wednesday 12 December 2018. Although this was not formally recorded in our Order dated 8 August 2018, it had been agreed after discussion with parties when the original hearing was discharged that any new diet fixed should allow for the possibility of overrun, with a view to ensuring that the appeal could be completed without the necessity of a split hearing and a continuation into 2019, and so the following two days, Thursday 13 and Friday 14 December 2018 were kept free by the court for that purpose.

The restriction of the scope of the hearing

[16] On Friday 7 December 2018, the court received from the Appellant a letter dated 6 December 2018 in which she explained that her appeal had been brought as a matter of principle rather than for monetary reasons, the sum at stake being relatively small – in the hundreds rather than the thousands of pounds. The experience of the hearing in Application RN SLC/90/17, at which the Respondents had been represented by both Counsel and solicitors, with time and money evidently no obstacle to them, made the cost/benefit risk to self-representing farmers prohibitive. Further, and in any event, the Appellant’s crucial witness, Mr Hay, was currently working as a contractor in New Zealand and would not be available to give evidence at the hearing. Accordingly, with a view to limiting the amount of court time that would be required for the hearing, the Appellant proposed to focus her appeal on her legal argument that the review decision “was time barred and that the appeal should be granted on the basis that [the Respondents] failed to complete the initial appeal in the timescales laid down in [regulation] 5 of the [2015 Regulations].” A finding in her favour on that point would negate the need for the Respondents to call the witnesses on the list they had intimated, who numbered four.

[17] The proposal set out in the Appellant’s letter to the court dated 6 December 2018 was treated as a motion, and opposition thereto having been intimated on behalf of the Respondents, at the commencement of the hearing on 11 December 2018 we heard argument thereon from Ashley Thom, who, being a member of her family as defined in section 71 of the Agricultural Holdings (Scotland) Act 2003, had been permitted in our Order dated 13 June 2018 to represent the Appellant in these proceedings, in conformity with rule 100(3)(a) of the Rules of the Scottish Land Court Order 2014 (S.S.I. 2014/229)(“the 2014 Rules”), and from Ms Laura Thomson, Advocate, one of the Scottish Government’s Standing Juniors, appearing for the Respondents, attended by her instructing solicitor, Mrs Aileen Nimmo of the Scottish Government Legal Directorate.

[18] Mr Thom having clarified at the request of Ms Thomson, and formally confirmed to the Court, that the Appellant was no longer maintaining her other previously advised grounds of appeal relating to the merits of the Respondents’ decision, but was periling her position instead on her legal arguments on the consequences of alleged breach by the Respondents of their obligations in respect of the procedural time limits for review of a relevant decision provided for in regulations 6(2) and 7(4) of the 2015 Regulations, thus obviating the need for the Appellant herself to give evidence, the Respondents in turn were content to stand down their intended witnesses. The court granted the Appellant’s motion that the scope of the appeal be so confined, and by this means we were in a position to proceed directly to hearing parties’ respective legal submissions, parties having meantime entered into and tendered to the court an extensive joint minute agreeing the chronology of events and the documents relevant thereto. The contents of that joint minute inform the narrative of events set out in paragraphs [7] – [13] of this Note. These are the agreed facts against which the legal issues focused by the Appellant require to be determined: cf., procedurally, Grant v International Insurance Company of Hanover Ltd [2019] CSIH 9 per Lord Brodie at paragraph [30].

The Appellant’s two legal arguments

The Respondents’ admitted failure to comply with regulation 7(4) and its consequences

[19] The second of the two arguments that Mr Thom proposed to advance on behalf of the Appellant, that the Respondents’ admitted failure to send her a written report by recorded delivery post before the expiry, on 2 June 2017, of the period of 60 days beginning on the date (3 April 2017) intimated to the beneficiary under regulation 6(3) of the 2015 Regulations, meant that they thereby forfeited the right to contest the appeal, was canvassed and rejected by a differently constituted court (The Chairman, sitting with John A. Smith) in Downie v Scottish Ministers (RN SLC/8/18, Order and Note of 2 November 2018) at paragraph [43] shortly before the hearing of this appeal. The grounds for the court’s decision were that regulation 8(3) of the 2015 Regulations had anticipated the possibility, and prescribed the consequence, of such a failure, expressly providing that where the Respondents have not sent a written report within the period of 60 days referred to in regulation 7(4), “the beneficiary may instead [our emphasis] appeal against the relevant decision on any issue of fact or law to the Land Court.” We agree. The inclusion of such a provision in the 2015 Regulations, it seems to us, leaves no room for the different consequence posited by Mr Thom on behalf of the Appellant. As it was put by the members of the court who sat in Downie, regulation 8(3) “simply provides the beneficiary with a direct route to this court in the event of the review report not being issued timeously.”

[20] Further support for the view that failure on the part of the Respondents to send a written report to the beneficiary within the period of 60 days referred to in regulation 7(4) does not have the effect of vitiating the relevant decision and obliging the court to uphold the appeal, regardless of its substantive merits, may be found in regulation 9(1)(a) of the 2015 Regulations, where it is provided that without prejudice to the power of the Land Court to determine its own procedure, the court may, where a written report has not been sent in accordance with regulation 7(4), require the Respondents to submit a written report, at a point in time that cannot but be subsequent to the 60 day period. It is striking that where a beneficiary does not ask to be provided with the opportunity afforded by regulation 6(2) to be heard at a review meeting, but opts instead to rest on the written application for review, there would appear to be no 60 day period, before the expiry of which a written report of the review must be sent to the beneficiary, because the trigger for the beginning of the 60 day period is, by regulation 7(4), stipulated to be the date intimated to the beneficiary under regulation 6(3); i.e. the date of the review meeting. In other words, if there is no review meeting, there is no 60 day period. It may be a moot point whether this aspect of the legislation is properly to be regarded as a further factor militating against a construction of the 2015 Regulations that renders any failure on the part of the Respondents to comply with regulation 7(4) fatal to their entitlement to contest the appeal or merely an unintended lacuna in the legislation.

[21] We conclude from this exercise in statutory construction that whilst regulation 7(4) doubtless was included in the 2015 Regulations to operate as a compulsitor on the Respondents to expedite the progress of the review (Ms Thomson suggested that the 60 day time period was there to “prevent dragging of heels” by the Respondents), a failure on the part of the Respondents to meet its requirements was not intended to have the consequence contended for by Mr Thom. It may, however, sound in expenses. We are strongly inclined to think that it is precisely to address such situations that regulation 10 (Expenses) of the 2015 Regulations provides that:

“Without prejudice to paragraph 15 of Schedule 1 to the Scottish Land Court Act 1993 or rules 88 to 95 (expenses) of [the 2014 Rules], the Land Court may in considering an award of expenses against any party to an appeal have regard to the conduct of that party during the review process as a whole [our emphasis].”

Where the Respondents have not sent a written report within the period of 60 days referred to in regulation 7(4), and the beneficiary as a result has to resort to appeal to the Land Court under regulation 8(3), the reasons for such failure may well be a relevant consideration in relation to the allocation of expenses, whatever the outcome of the ensuing appeal.

The Respondents’ alleged failure to comply with regulation 6(2) and its consequences

[22] The argument upon which Mr Thom principally relied, after the recent decision in Downie was brought to his attention, was that the Respondents had failed also to comply with the obligation imposed on them by regulation 6(2) of the 2015 Regulations to “provide the beneficiary with an opportunity to be heard at a review meeting to be held within 60 days of receipt of the application on any matter relevant to the application.” Whilst it is not in dispute that the hearing in the Applicant’s case actually took place on Monday 24 April 2017, well outwith the 60 day period referred to in regulation 6(2), Ms Thomson made clear at the outset of the hearing that the Respondents did not concede that they had failed to provide the Applicant with “an opportunity [her emphasis] of being heard at a review meeting” within the 60 day period. Their position was that, notwithstanding the unfortunate telephone message left Mr Donald on the Appellant’s answerphone, the Respondents had discharged their obligation under regulation 6(2) to provide her with an opportunity to be heard when he made his call to the Appellant at 10:30 am on Monday 3 April 2017. The Respondents’ fall-back position, if we were not with her on that submission, was to argue that they had done so when Mr Caldwell sought to re-schedule the review meeting for Monday 10 April 2017, that date being (just) within 60 days of receipt of the Appellant’s application for a review. On either basis, the fact that the review had not taken place within the 60 day period was of no moment: what was important was that the opportunity had been extended to the beneficiary.

[23] For the Appellant, Mr Thom argued that the 60 day time periods were sacrosanct. He made the point that, in respect of the three 60 day periods provided for in the 2015 Regulations, only his wife, in getting her application for review in no later than 60 days following the date of the decision letter in conformity with regulation 5(1), had achieved compliance: had her application not got in on time, it would have been rejected, and he queried why the position should be any different for the Respondents. He pointed out that his wife having submitted her application for a review on 10 February 2017, and requested that it take place by telephone on a Monday morning, there were some 9 subsequent Mondays on which the review could have been conducted, but the Respondents chose, for reasons unexplained, to schedule it for the penultimate Monday within the 60 day period. By cutting it so fine, leaving it to the eleventh hour, the Respondents had given themselves little room for manoeuvre if that date fell for any reason. The review both could, and should, have gone ahead in the Appellant’s absence on 3 April 2017. Throughout the course of the review, the Respondents had shown a general disregard for the provisions of the legislation, which were there for a purpose.

[24] Ms Thomson argued that, so far as the obligation imposed by regulation 6(2) to provide the beneficiary with an opportunity of being heard at a review meeting was concerned, the Respondents had done all that the 2015 Regulations, properly construed, required of them. Regulation 6(1) provided that the Respondents must review the relevant decision where an application for a review had been made in accordance with regulation 5, but the 2015 Regulations did not provide for the form the review must take. The Respondents had to provide the beneficiary with an opportunity of being heard at a review meeting to be held within 60 days of receipt of the application on any matter relevant to the application (regulation 6(2)), and intimate the date of the review meeting to the beneficiary in writing (regulation 6(3)), and the beneficiary, or a representative of the beneficiary, was entitled to make representations at the review meeting (regulation 6(4)). A beneficiary was not obliged to take up the opportunity to be heard at a review meeting. Review was a process, and might include other elements that were not the subject of express provision in regulation 6: it was not reasonable to expect that every review, which involved the subjecting to scrutiny by a SGRPID official of a colleague’s decision at first instance, could be wrapped up on the day of the review meeting, and the Respondents then had a further 60 days beginning on the date of the review meeting intimated to the beneficiary to complete the review process and send out the written report. That said, the 2015 Regulations did not in terms require the review to be completed within that 60 day period.

[25] Ms Thomson took issue with Mr Thom’s submission that the Monday 3 April 2017 review meeting could have proceeded in the Appellant’s absence. She argued, under reference to a standard dictionary definition of the word “meeting” as meaning (1) an assembly of people for a particular purpose, especially formal discussion, and (2) a situation where two or more people meet by chance or arrangement, that a SGRPID official tasked with conducting a review meeting could not do so on his own. Where a beneficiary did not turn up at a review meeting, it could not proceed in absentia, because you could not have a meeting with yourself. In this case, the review meeting had been scheduled for 10:30 am on Monday 3 April 2017. That was the Appellant’s opportunity to be heard. It came and went when the Appellant failed to pick up the telephone when Mr Donald called her at the scheduled time. Accordingly, no review meeting took place on that date, but the review process continued. In the event, Ms Thomson contended, the Respondents did provide the Appellant with a further opportunity to be heard, on Monday 10 April 2017, which she again failed to take up, but as we understood her, it was implicit in this, the Respondents’ primary position, that they were under no statutory obligation to do so once the initial opportunity, having crystallised, had flown off.

[26] Under questioning from members of the court, Ms Thomson conceded that, having heard Mr Donald’s answerphone message, it would be wholly unreasonable to have expected the Appellant to call back and participate in the review meeting as if nothing untoward had happened. However, the efforts made by the Respondents to set up a further review meeting conducted by a different SGRPID official, Mr Caldwell, the following Monday 10 April 2017, were apt to satisfy the requirement in regulation 6(2) to provide the Appellant with an opportunity to be heard at a review meeting to be held within 60 days of receipt of the application. Within the limited time available to them before the expiry of the 60 day period, what more, she asked rhetorically, could the Respondents have done to extend to the Appellant the opportunity to be heard at a review meeting? There must, in these circumstances, be some onus on the beneficiary to make herself available within the time period to take up the opportunity to be heard at the review meeting.

Discussion

[27] In the, we trust, singular circumstances of this case, we did not warm to the Respondents’ submission that their obligation under regulation 6(2) of the 2015 Regulations crystallised when Mr Donald telephoned the Appellant at 10:30 am on Monday 3 April 2017, and then immediately flew off when the Appellant failed to pick up. In rejecting that argument, we take a slightly different starting point from both Mr Thom and Ms Thomson. The former adopted the position that the review could, and should, have continued in the Appellant’s absence: the latter that the Respondents had discharged whatever obligation regulation 6(2) placed on them merely by Mr Donald having made his telephone call. We take the view that it is impossible to divorce the part of the answerphone message inadvertently left by Mr Donald from the part that he intended to leave and expected the Appellant to respond to. As we see it, a review to be conducted by someone who embarks on that task with the mindset revealed by the contents of Mr Donald’s answerphone message is not a review worthy of the name, and makes a mockery of the entire review process. The review meeting with Mr Donald scheduled to take place by telephone on at 10:30 am on Monday 3 April 2017 did not, in short, provide the Appellant with an opportunity of being heard such as regulation 6(2) has in contemplation and is supposed to vouchsafe. We think that one of the lessons that should be learned from this unhappy case history is that review of a relevant decision should not be conducted by a SGRPID official working out of the same area office as the official(s) who made that decision: it is, in our opinion, unrealistic to suppose that Chinese Walls can be maintained in such an environment sufficiently as to ensure that the person conducting the review may not be predisposed against the beneficiary through things they may have heard about him or her at work.

[28] The facts adduced in parties’ joint minute of admissions confirm that when what Ms Thomson characterised as the utterly unprofessional and inappropriate conduct of one or two individuals employed by them came to light, the Respondents acted swiftly to try to repair the damage, but it would be difficult, in our view, to overstate the impact on a beneficiary who has applied for a review of a relevant decision of happening upon such blatant evidence of prejudice and bias on the part of the official tasked with the responsibility of conducting that review.

[29] In such circumstances, the Respondents had much work to do in order to restore the faith of the Appellant and her husband in the impartiality of the review process, and attainment of that objective was not assisted by the Respondents’ repeated refusal to disclose to them the identity of ANO, the second SGRPID official whose interjections and expressions of amusement were also caught on the answerphone tape. The Appellant and her husband first sought this information within days of Monday 3 April 2017, but the Respondents continued to resist providing them with it until the start of the hearing on 11 December 2018, when Mr Thom raised the issue once again. Mr Thom made the, on the face of it, not unreasonable point that if his wife did not know the identity of the other official in the room conversing with Mr Donald whose voice was recorded on her answerphone, she could not be sure that he was not the person who had been asked to conduct the review in Mr Donald’s stead. We asked Ms Thomson why this information could not have been supplied to the Appellant. We were not satisfied with her answer, given on instructions, to the effect that the Respondents owed that official a duty of confidentiality, the legal basis of which she was unable to elaborate on in any meaningful way. Whilst emphasising that we were not ordaining the Respondents to provide this information, we did make the point that by declining to do so, the Respondents had given the Appellant a stick to beat them with, because their declinature to identify the official concerned tended to create the impression that they might have something to hide in this regard. Concerns about a lack of transparency in the review process were further prompted by revelations, in both this appeal and in Application RN SLC/90/17, that decision letters emanating from area offices and issued in the name of officials working in those area offices had unacknowledged input from officials at Saughton House in Edinburgh. Having taken further instructions, Ms Thomson was authorised to disclose that the other official in the room with Mr Donald at the Respondents’ Galashiels Area Office on Monday 3 April 2017 at 10:30 am was Thomas Fleming, a Senior Agricultural Officer employed by the Respondents, and so the matter was finally put to bed.

[30] We are, on balance, persuaded that the steps taken by the Respondents to provide the Appellant with an opportunity of being heard at a review meeting on Monday 10 April 2017 satisfied the obligation imposed on them by rule 6(2), and the fact that the Appellant did not, for whatever reason, make herself available for a review meeting on that date does not detract from that conclusion. Parties’ joint minute narrates the bare facts of Mr Caldwell’s multiple attempts to make contact with the Appellant in the period after he was assigned the job of conducting her review, and in the absence of either the evidence of witnesses or agreement between the parties as to the relevant facts in this regard, it is not open to us to speculate as to the reasons why the Appellant did not get back in touch with him in response to his efforts to contact her between 7 and 18 April 2017.

[31] We are of opinion that the time limits prescribed in regulations 6(2) and 7(4) are conceived and included in the 2015 Regulations in the interest of beneficiaries, for the purpose, to adopt Ms Thomson’s formulation, of preventing the dragging of heels by the Respondents in processing applications for review of relevant decisions. In relation to the obligation contained in regulation 6(2), whilst the beneficiary is entitled to insist on being provided with an opportunity of being heard at a review meeting to be held within 60 days of receipt of the application, we do not think there is anything in the 2015 Regulations to preclude a review meeting from taking place outwith the 60 day period if the beneficiary is content with that situation, and that is what actually happened in this case.

[32] Standing our conclusion that the Respondents did provide the Appellant with an opportunity of being heard at a review meeting to be held within 60 days of receipt of the Appellant’s application for review, on Monday 10 April 2017, we do not require to decide what the position would have been if no such opportunity had been provided within that period. The point is not free from difficulty. In contrast to the position under regulation 7(4), the 2015 Regulations do not prescribe the consequence of failure by the Respondents to achieve compliance with regulation 6(2), and whilst the terms of regulation 6(2) are unquestionably peremptory, it is not immediately obvious to us that the 2015 Regulations provide any effective sanction for a beneficiary where they do not do so.

[33] The corollary of the Respondents’ obligation to provide beneficiaries with an opportunity of being heard at a review meeting to be held within 60 days of receipt of the application for review is that beneficiaries must make reasonable efforts to accommodate the scheduling of a review meeting at a mutually convenient date and time: we do not think it would be a tenable approach to the construction of the 2015 Regulations to hold that where beneficiaries insist on being provided with an opportunity of being heard, and then do not make themselves available for a review meeting within the 60 day period, they could thereby engineer an outcome of revocation of the relevant decision and the substitution therefor of a new decision in conformity with the change thereto they were seeking. It follows that we are also of the opinion that the submission on behalf of the Respondents, based on the dictionary definition of the word “meeting”, that where the beneficiary does not participate in a review meeting, the date of which has been intimated to him or her in writing in conformity with regulation 6(2), the review meeting cannot proceed, is misconceived. The obligation imposed on the Respondents by regulation 6(2) is to provide beneficiaries with an opportunity of being heard at a review meeting to be held within 60 days of receipt of the application: whether or not beneficiaries then avail themselves of that opportunity does not impinge on the issue of whether the Respondents have discharged their obligation to provide it.

Conclusion

[34] We do not consider that either of the Appellant’s two legal arguments is well founded, and accordingly, in determining the appeal, we have no basis for doing anything other than confirming the decision of the Respondents in conformity with regulation 9(2)(a) of the 2015 Regulations.

Expenses

[35] Ms Thomson moved at the bar that, in the event of the Respondents succeeding in resisting the appeal, an award of expenses should be made in their favour, and that we should sanction the employment by the Respondents of junior counsel for the purposes of the appeal, under reference to paragraphs (a) (difficulty or complexity of case) and (b) (particular importance or value to party represented) of rule 89(1) of the 2014 Rules, on the basis of the ordinary rule of expenses following success. Even if the Respondents were not wholly successful in resisting the legal arguments upon which the Appellant ultimately relied at the hearing, the court should take into account in awarding expenses the grounds of appeal from which the Appellant had signalled her intention to depart only on the eve of the hearing, for which the Respondents nevertheless had required to prepare and marshal the attendance of witnesses. In our Order dated 11 December 2018, we allowed the Appellant to lodge in written form, on or before Monday 7 January 2019, any motion and submission she might have in relation to the issue of expenses, in reply to the motion and supporting submissions made at the bar by Ms Thomson for the Respondents. A written submission was duly received from the Appellant on Monday 7 January 2019, in which she opposed the Respondents’ expenses motions, and moved that the expenses of the appeal instead should be awarded in her favour, citing in support of that motion aspects of the Respondents’ conduct of the review that it was argued would justify such a course, howsoever we disposed of the two legal arguments upon which the appeal ultimately had been periled. The fact of the answerphone message left by Mr Donald on Monday 3 April 2017 quite understandably loomed large in that submission.

[36] As we noted in paragraph 21 above, regulation 10 of the 2015 Regulations provides that, without prejudice to our ordinary powers in relation to expenses, the Land Court may, in considering an award of expenses against any party to an appeal under the 2015 Regulations, “have regard to the conduct of that party during the review process as a whole.” It is clear to us that the course of the Appellant’s review was materially affected by the contents of the message left on her answerphone on Monday 3 April 2017. This was something that should never have occurred, and it had the potential to taint the entire review process. Having been enjoined expressly by regulation 10 to have regard, in considering an award of expenses against any party to an appeal, to the conduct of that party during the review process as a whole, we are of the view that this is a case in which we would be justified in departing from the ordinary rule of expenses following success. As a mark of our disapproval of the conduct of the SGRPID officials whose conversation was picked up on the Appellant’s answerphone, for which the Respondents are answerable, we instead find no expenses due to or by either party. The question of sanction for the employment of junior counsel accordingly does not arise.