THE COURT

(Lord McGhie, Mr D J Houston)

ANGSU ESTATES LTD v MESSRS J S SMITH

(Application RN SLC/68/08 – Order of 17 June 2009)

AGRICULTURAL HOLDINGS – SECURE AGRICULTURAL TENANCY – GRAZING LETS – SUCCESSION OF LETS – PARTNER APPEARING ON BEHALF OF PARTNERSHIP – ALLEGATIONS OF A COURSE OF CRIMINAL CONDUCT BY THE APLICANTS – HARASSMENT – AGRICULTURAL HOLDINGS (SCOTLAND) ACT 1991, SECTION 2

The dispute related to three fields contiguous to a complex of buildings operated by the applicants as a piggery. The respondents averred that they had entered a verbal agreement to lease the ground for agricultural purposes for an annual rent of £1,200. There was no direct evidence of the agreement. But it was established that the owners sent out annual demands for “rental for grazing” and bearing to be for the period from 1 May to 31 October each year. The rent varied from year to year. There was evidence that there was usually discussion early in the year in course of which rent would be agreed. The written rent demands were never challenged by the respondents who paid the rents requested. It was established that the respondents regularly showed the subjects in their IACS returns under the heading “Short Term Lets” or the like. It was not disputed that the owners used the subjects whenever they wished for disposal of slurry from the piggery and that cattle were off the fields at least for a period in the Spring each year. There was no evidence that any authorised representative of the owners knew of any use of the subjects by the respondents inconsistent with use for mowing and grazing. The respondents were allowed to store baled silage on an area of hardstanding and to have access to this freely throughout the year but this area was adjacent to the fields and not part of the subjects claimed. There was conflicting evidence as to precisely what use was made of the two smaller fields, but it was established that the respondents made regular use of the largest field, taking a crop of grass for silage each year and letting cattle on after the silage was cut. It was not disputed that any agreement related to the three fields treated as a single unit. It was agreed that the relevant period for examination was from 1994 to 2003 as the respondents’ right had been disputed thereafter and no rent had been paid. The essential question as presented to the Court was whether the use of the fields was to be attributed to a series of “grazing lets” together with some informal permission to use the fields at other periods or was attributable to an agreement in 1994 that the respondents would have a “permanent tenancy”. Various allegations of deliberate lies, fraud and forgery were made by the respondents’ representative, Mr Smith. Assertions were made of harassment or bullying tactics by the applicants to drive the respondents off the land. The applicants did not acquire the subjects until late 2005.

HELD (1) that the direct evidence bearing on the nature of the agreement reached in 1994 pointed clearly and unequivocally to the contractual arrangement being on the basis of a series of annual grazing lets; (2) the evidence of use was not sufficient to contradict that or establish any subsequent change; (3) the respondents had not satisfied the Court that they were in full agricultural occupation from one year’s end to the other, but even if they had shown some form of occupation all year round, they had not shown that it was attributable to anything more than tolerance or licence. It was noted that they faced the additional difficulty that such tolerance could more readily be attributed to informal agreement of the staff operating the piggery than to any agreement by authorised representatives of the owners; (4) that a proper examination of the evidence simply disclosed the intemperance of the language used on behalf of the respondents and provided no evidence of criminal conduct by or on behalf of the applicants; and (5) that no basis had been shown for any legal obligation on the part of the applicants to take positive steps to facilitate continuing occupation of the fields by the respondents and no positive harassment had been proved.

The Note appended to the Court’s Order is as follows:-

[1] In this application the applicants seek a finding that the respondents do not have a secure agricultural tenancy over three fields and buildings at Muir of Pert, Tealing. The respondents seek a finding that they do have such a tenancy.

[2] At the hearing in Edinburgh on 12 to 14 May 2009, the applicants were represented by Mr Lewis Kermack, Solicitor. The respondents were represented by Mr Derek Smith who, with his father, is a partner in the respondent’s firm. At the outset, Mr Kermack challenged the right of Mr Smith to appear on behalf of the firm. He referred to procedure in the Court of Session and in the Sheriff Court. He cited MacPhail at 1.35 and 4.118 and referred to Clark Advertising v Scottish Enterprise Dunbartonshire. However, the practice in the Land Court is to allow parties to be represented by suitable persons even when not legally qualified. This is implicit in RC 98. It would be normal for us to allow a partner of a family business to represent the business unless there were special circumstances. We accordingly allowed Mr Smith to appear on behalf of the respondents.

Statutory material

Agricultural Holdings (Scotland) Act 1991 (“the 1991 Act”)
Agricultural Holdings (Scotland) Act 2003 (“the 2003 Act”)

Authorities

Bell v Inkersall Investments 2006 SLT 626
Clark Advertising v Scottish Enterprise Dunbartonshire 2004 SLT (Sheriff Ct) 85
Commercial Components (International) Ltd v Young 1993 SLT (Sheriff Ct) 15
Earl of Ancaster v Doig 1960 SLT 257
Mackenzie v Laird 1959 SC 266
Morrison Low v Paterson 1985 SLT 255
Scottish Youth Hostels v Paterson 2007 SLCR 1
Strachan v Robertson Cupar 1989 SLT 488
Watson v P F Kirkcaldy (High Court of Judiciary 27 March 2009)

Text books

Lord Gill Law of Agricultural Holdings in Scotland 3rd ed.
Macphail Sheriff Court Practice 3rded.

The background

[3] The dispute related to three fields contiguous to a complex of buildings formerly operated as a piggery at Muir of Pert, Tealing, just north of Dundee. The respondents averred that they had entered a verbal agreement with A Simmers Ltd in 1994 to lease the ground for agricultural purposes for an annual rent of £1,200. It was not disputed that no rent had been paid since 2003 and that there had been no relevant agreement between the respondents and any authorised representatives of the owners since then. Accordingly, it was not suggested that the new provisions of the 2003 Act had any relevance. The dispute related to the nature of arrangements for use of the subjects from 1994 to 2003. Although there was conflicting evidence as to precisely what use was made of the two smaller fields, we are satisfied that the respondents made regular use of the largest field, taking a crop of grass for silage each year and letting cattle on after the silage was cut. It was not disputed that any agreement related to the three fields treated as a single unit. The essential question, as it appeared from the pleadings and from Mr Smith’s contentions at the hearing, was whether that use was to be attributed to a series of “grazing lets” together with some informal permission to use the fields at other periods or was attributable to an agreement in 1994 that the respondents would have a “permanent tenancy”. The parties used these terms as convenient shorthand and we shall continue to do so. We deal briefly later in the Note with the formal basis of the distinction.

[4] We heard evidence from various witnesses and, at this point, simply record the names with a brief outline of the broad subject matter to which each spoke and some detail of the uncontentious background evidence. We return to other aspects of detail later.

The applicants’ witnesses

[5] Arthur Simmers: He was the managing director and major shareholder of A Simmers Ltd, a company which operated a piggery at Muir of Pert. The company business was extensive but Muir of Pert was one of the main sites. This company went into receivership on 25 August 1998. The main assets, including Muir of Pert, were taken over by Scotpigs Ltd in which Mr Simmers was again managing director and major shareholder. Scotpigs Ltd was put into liquidation on 16 April 2004. The records of the business are now held by KPMG, accountants, on behalf of the liquidator.

[6] Mr Simmers ran his businesses from the head office in Aberdeenshire. Local managers operated the various piggeries. Issues such as buying or leasing property were dealt with by central administration at the head office. Local managers might discuss details but authority for any letting had to come from the head office. Mr Simmers would usually have responsibility for grass lets but the general managers might also deal with them. Managers with authority at the relevant periods were Michael Scott and Andy Brown.

[7] Although he had said in examination in chief that he had no connection whatever with the applicants, he accepted under cross-examination that his son was in partnership with them in relation to certain projects. One project was a wind-farm development proposed for the land to the west of the buildings at Muir of Pert. He admitted that he had signed formal documents in connection with this project but said this was just done on behalf of his son. He said he had no financial interest in it.

[8] David Barn: He had lived since October 1992 at Moathill Farm which lies immediately to the south east of the piggeries. He was able to speak to his observation of operations carried out on the biggest field. He was aware that the respondents had used it for cattle in the past but said it had not been used for that purpose in recent years. It was regularly used for silage. The smaller fields were not always used. In any event, the cattle were always off no later than November. He did not think the fields were ever used for cattle over the winter. He thought the term “grazing season” was well understood and meant a period from late April to the end of October.

[9] He said that after the liquidation the whole place was troubled by an invasion of what he called the “midnight” people. There was a great deal of “pillage” well before Angus Estates took over. He was aware of a woman using the smaller fields in recent years but not earlier. He did understand that she had been there “in the 90s”.

[10] In cross-examination he agreed that he had had an interest in acquiring the piggery and also in acquiring the fields which had formerly been part of Moathill. But he said that he was now older and this was not a pressing interest. He agreed that he owned the solum of the road to the piggery. It was suggested that this would give him control of development. He made it clear that he did not regard this as an important issue. We note in passing that he was not asked about the servitude rights other people might have over the road.

[11] Ms Curran: She said that she and two friends had had use of the two smaller fields in the 1980s. She had been away for a period but returned in 1992. She said she had had use of both fields and had been there since that time. She had always had two ponies there. Bigger horses came and went. She had paid rent up to the time of the liquidation. She said these fields were not used for disposal of slurry and had not been used by the Smiths. It was apparent that she and Derek Smith now had a hostile relationship. There was a separate court action pending.

[12] Simon Laird: He is the managing director of the applicants. They acquired Muir of Pert in October 2005 from the liquidator of Scotpigs Ltd. He was involved in another company, MLS Ltd., held 60% by the applicants and 40% by Charles Simmers. He was challenged on many matters of detail in his evidence and we shall return to discuss some aspects of it. He had no dealings with the subjects prior to 2005.

The respondents’ witnesses

[13] Mrs Helen Smith: She is the mother of Derek Smith and wife of John Smith, the other partner in the respondent firm. She did the office work for the firm. She gave evidence about invoices relating to the subjects and about the firm’s IACS returns. She said she visited the fields and was aware of what went on in them.

[14] Alexander Wilson: He had been a foreman working at the piggery from 1996 until January 2005. He had lived in a house at the gate, close to the two smaller fields. He was responsible for disposal of slurry on the fields. He spoke to the respondents having cattle on the fields, or at least the big field, during winter months and during the relevant period. He said he had no knowledge of Ms Curran ever using any of the fields.

[15] Graham MacKenzie: He lived at No. 2 Cottage, Moathill since 2002. This was near the smallest field. He said Ms Curran had not been there until the last year or two.

[16] Andrew Laing: 4 Moathill Cottages. He had been there for many years. He was an elderly man who was hard of hearing. He remembered Ms Curran using the smaller fields for horses. She had left suddenly a considerable time ago. He could not give any indication of the date. She was now back. He made no secret that he was not happy about that. He also made it clear that his recollection of dates was very unreliable.

[17] Kevin Smith: A brother of Derek Smith who is employed as a motor mechanic. He would regularly help his parents with their farming activities. In particular he helped with silage work in the summer. He said the pattern of use of the fields was cutting silage in the summer and grazing all winter. He was clear about the big field but his evidence was a little confused about the smaller ones. He said he not been so involved at the piggeries in recent years.

Evidential difficulties

[18] Broadly speaking, the evidence in this case can be divided into two categories: evidence with a direct bearing on the nature of the contractual arrangements and evidence of the use made of the subjects. Evidence in the former category was relatively one sided and pointed unambiguously to the respondents having occupied the subjects as a series of grazing lets. On the other hand, the evidence of the use made of the various parcels of land involved was confused and contradictory. There were various possible explanations for this. The applicants faced the difficulty that they had not been owners of the subjects at any time prior to 2005 by which time there was a dispute about the respondents’ rights. The respondents had the difficulty that although Mr Smith appeared to cope quite well with his lack of litigation experience, there were occasions when issues raised with his witnesses had not been fully put to the applicants’ witnesses. It is appropriate to say a little more about these difficulties although they did not, in our view, have any significant bearing on the end result.

[19] As we have noted, Mr Simmers gave evidence that, for practical purposes, from 1994 to 2003, the subjects had been owned by A Simmers Ltd and Scotpigs Ltd. Both these companies can be regarded as having been run by Mr Simmers from the head office in Aberdeen. Mr Simmers explained that local managers responsible for running of the piggery at Muir of Pert were not responsible for letting arrangements, although they would discuss things with interested parties and pass details back to the main office. Invoicing was dealt with by the main office. There was no challenge to Mr Simmers’ evidence on this point and no contradictory evidence. Although Mr Smith suggested – in emphatic terms – that no reliance could be placed on anything said by Mr Simmers, his own submissions were made on the basis of assertions that he had dealt directly with Mr Simmers in 1994. There was no evidence to suggest that he relied on the local managers as having authority to grant a tenancy or change the arrangements and, indeed, no suggestion by Mr Smith that there had been any change since 1994

[20] Mr Simmers told us that the businesses owned or leased over 160 different parcels of land or property. They operated various piggeries. They let out some ground for grazing. They also took grazing lets. It was a matter of logistics and demand. Mr Simmers did not suggest that he had any recollection of discussions with Mr Smith. He said that in 1994 there was a manager based in Aberdeenshire who would also have had responsibility for the letting of land. We are satisfied that, although Mr Simmers might have been expected to react to any gross abuse of the fields had he noticed it, his main interest on his visits to Muir of Pert would have been in relation to operation of the piggery itself. He described grass lets as being “at the periphery of our work”. Indeed, Mr Smith was at pains to stress to Mr Simmers that he was a very busy man who would not be expected to know much about what was going on in relation to the fields. The evidence from Mr Wilson was to the effect that Mr Simmers only visited Muir of Pert on 2 or 3 occasions in the whole period of his employment. This contradicted Mr Simmers’ evidence of regular monthly visits. We are not satisfied that Mr Wilson would necessarily have known of every visit by Mr Simmers and we find it hard to believe that, as managing director of the business, his visits would be limited to 2 or 3 occasions in the period. But it is unnecessary for us to make a formal finding in relation to the number of his visits. We have no difficulty in accepting that Mr Simmers’ interest in what was going on in the fields would be minimal. As will be seen we have not found his evidence of the detail of the use made of the fields to be reliable but we find nothing particularly sinister in reaching this conclusion. We are not persuaded that it shows deliberate dishonesty. But clearly the applicants, or their solicitors, had relied on evidence from Mr Simmers in drafting pleadings and in preparation for the proof. His lack of reliability gave rise to some of the difficulty.

[21] For the respondents, Mr Smith’s lack of experience in Court and in discussion of legal issues was made clear. We did not require to hear evidence of the background to his decision to represent the firm himself. But correspondence submitted to the Court by solicitors acting on behalf of the firm showed that, in the week prior to the proof, the respondents had dispensed with the services of the solicitors who had been acting for them. The new solicitors had accepted instructions to act for the respondents but had been unwilling or unable to represent them in Court. They had arranged to give advice as to the conduct of the litigation. Mr Smith is not to be blamed for the way he conducted the case. However, some difficulty did arise from the fact that the details spoken to by the respondents’ witnesses had not all been raised with the applicants witnesses, nor foreshadowed in the pleadings.

[22] Mr Smith did not himself give evidence. Although we had an understanding of what his evidence might have been from the nature of the questions he put to witnesses, detail put forward in questions does not become evidence of fact unless it is accepted by the witnesses. We recognise that any party litigant faces a difficulty in understanding the difference between giving evidence of fact as a witness and making assertions by way of questions to witnesses or in course of submissions. We attempted on several occasions to ensure that Mr Smith understood the distinction. He had a practical example when his mother was required to give evidence in relation to a missing production. Because her explanation was not accepted by Mr Kermack when made by Mr Smith at the bar, it was explained that she would have to give evidence if he wished this matter clarified. She did so and was of course open to cross examination on the whole paperwork of the firm. Mr Smith was, accordingly, well aware that any evidence he gave would be subject to cross-examination. He was told the significance of giving evidence on oath. He was told that any facts he wished to rely on had to be spoken to from the witness box. He chose not to give evidence. In the whole circumstances we treat this as a neutral circumstance. We do not draw any adverse inference. But equally, we cannot draw any inference that he would have spoken to all the facts implicit in his questions.

[23] We have dealt with this background because it provides a possible explanation for some of the difficulties and confusions which arose mainly in relation to the evidence of use of the fields. Mr Smith’s position was that the conflicts of evidence arose from a criminal conspiracy at the hand of Mr Laird to get the firm off the land by a combination of forgery, fraud, lies and bully tactics. In fairness to all the witnesses, it is necessary to take some time to explain our conclusions on this matter. We are satisfied that it has no bearing on the evidence bearing directly on the nature of the contractual agreement in issue, but it does have a bearing on the use made of the subjects.

[24] While the conflict as to the timing of Ms Curran’s use of the two small fields is hard to explain except on the basis of deliberate untruth or reckless disregard of the truth by one or more witnesses, we are satisfied that the explanation for most of the conflict and inconsistency is largely, if not wholly, to be attributed to the passage of time and normal unreliability of witnesses dealing with matters in which they themselves have had no direct interest at the relevant times. We illustrate this by reference to the three main matters relied on by Mr Smith as proof of “lies, forgery or fraud”.

[25] Mr Simmers told us that use had been made of the big field for disposal of dead pigs. This, he said, involved use of digestion pits dug in the field. During the grass growing season such a pit might be unfenced but if cattle were there it would be fenced by using steel sheets or gates. It might be netted to keep the birds out. He said he was sure that this continued right up until about 2002 when the legislation changed making such disposal illegal. In cross-examination his evidence was simply challenged as being untrue. It was put to him that no such use of the field had been made after 1994. However, it was not suggested to him that he was simply mistaken as to the field being used. It was not put to him that the pits were in the field beside the runway; that is, the field immediately to the north west of the big field. We do not criticise Mr Smith for his line of questions. He was faced with an assertion that the pits were in the big field during his occupancy and his aim was simply to refute that. We are satisfied that he was successful in this. The significant point is that the applicants’ second witness was Mr Barn. He said that use of such pits had continued up until about 2002 when this method of disposal was banned. He then spontaneously said that the pits were not in the big field. They were in the field beside the runway. We do not know what Mr Simmers might have said had the challenge been in relation to the location of the pits rather than their very existence. He seemed confident in his description of the pits and how long they were operated. But, we accept that his interest in the operation of the various fields was, to borrow his own word, peripheral and it would be entirely consistent with our experience of witnesses generally that he might have simply confused the ground involved. In short, while we do not accept his evidence on this matter as accurate, we are not satisfied that it can be treated as involving a deliberate falsehood. The very fact of such a conflict of evidence on this point between the applicants’ two main witnesses tends to point away from the idea of a deliberate conspiracy.

[26] The most serious conflict related to evidence of use of the smallest field by Ms Curran. We recognise that her assertions that she had been there throughout Mr Smith’s occupation would have seemed helpful to the applicants. It is not surprising that they led her to give such evidence. It was supported by Mr Simmers. However, it was contradicted by Mr Barn which, again, tends to disprove the assertion that there was a conspiracy among the applicants’ witnesses. We are aware that Ms Curran and Mr Smith are involved in separate Court proceedings and that Ms Curran may have had motives of her own for the evidence she gave. The local residents plainly want rid of her and that might be a motive for the precise evidence they gave. As we have concluded that this case can be decided without placing any weight on the suggestion that she had use for her ponies or horses of some part, or parts, of the three fields within the relevant period, we find it unnecessary to express any concluded view as to credibility in these circumstances. Having regard to the other litigation which we were told was pending, we think it inappropriate to do so. We noted that Ms Curran referred to a number of witnesses who could support her position. If her long-term use of the subjects is important in the context of the other litigation she may be able to rely on such evidence. Her attempt to date her use by reference to a photograph of her daughter depends for its validity not only on the assessment of her daughter’s age at the time shown but on evidence as to what the photograph purports to show. The horses are not shown in the fields but simply on an adjacent road or track.

[27] There is no doubt that she has been using the little field for at least the last year; that she has not paid any rent; and that the neighbours, whether justifiably or not, regard her as a nuisance. Mr Laird has it in his power to put her off.

[28] Mr Smith contended that Mr Laird’s failure to remove Ms Curran was an illustration of his hostility and his attempts to force the respondents to leave by bullying tactics. However, we accept that the applicants were not instrumental in causing Ms Curran to use the fields. We are not persuaded that it was unreasonable for them to take no steps to have her removed. Their position is that neither the respondents nor Ms Curran have any right to be there. They have no obligation to protect the respondents’ interests by putting her off. It may be that now that Mr Laird has heard the concerns of the other neighbours he would reasonably be expected to investigate further. He should not permit his property to be used for a purpose which creates a nuisance to neighbours. But, on any view of the matter, we do not consider that the recent use by Ms Curran has any bearing on the issues arising for our determination in the present case.

[29] The example relied upon most strongly by Mr Smith as demonstrating “fraud and forgery” related to the two copy invoices, productions 29 and 34. We are satisfied that, properly understood, the evidence on this matter simply demonstrates his own intemperance of language and lack of understanding of the issues involved. The background is that the applicants, or their solicitors, had come into possession of a series of copy invoices bearing to relate to the subjects and to have been issued by Scotpigs Ltd in the years 2000, 2001, 2002 and 2003. It is probable that these invoices were provided by the liquidator of Scotpigs but possible that they came via Mr Simmers. As we shall see the 2000, 2001 and 2003 invoices were accepted by Mrs Smith and accordingly nothing turns on precisely where they came from. We shall return to these below when considering the evidence bearing on the nature of the contract. For present purposes, we are concerned with the two invoices produced, both bearing to have been issued on 30 April 2002 but in slightly different terms.

[30] The invoice lodged by the applicants, production 29, had some handwritten additions but, as printed, appeared as “Invoice 543” for rental of “grazing at Muir of Pert, Tealing”, showing 24 acres at £60, a total of £1,440. It showed “Period of let: 01/05/02 – 31/10/02”. There was no evidence to suggest that the applicants had any reason to suspect that this was not an accurate copy of the invoice issued to J S Smith as it bore to be. However, Mrs Smith said that very shortly before the hearing, she had found in her papers, a similar document stamped as paid and with a handwritten acknowledgement of receipt of payment dated 13/05/02. This, production 34, was an invoice apparently identical to production 29 as printed except that it showed: “Period of let: 01/04/02 – 31/10/02”. There was no doubt that the respondents had paid £1,440 and, of course, no doubt that they had received the stamped copy. Mr Simmers had not seen production 34 until the morning of the hearing. In the witness box he was able to volunteer no explanation for the conflict between the two invoices. In answer to specific questions he was able to say that invoices in 2002 were usually generated by computer. If a change had to be made in an invoice the operator might simply revise the version held in the computer and print a revised copy. There would not necessarily be a new invoice. However, Mr Simmers stressed that he had no knowledge of the particular circumstances in the present case.

[31] We are satisfied that some such explanation is the most likely reason for the existence of the two different invoices. We do not go so far as to speculate that it was changed because the respondents had challenged the date shown in 2002 although that seems to us as likely as the suggestion of fraud and forgery. Despite his emphatic assertion that the material was indicative of fraud, Mr Smith could suggest no purpose, fraudulent or otherwise, to be served by the change in date. We understood his broad assertion to be that if the invoice produced by the applicants for 2002 could not be relied on as a genuine copy of an invoice sent to the respondents in 2002, no reliance could be placed on the other copies for the other years. However, Mrs Smith did not suggest that she had not received the other invoices. She expressly said she had no complaint to make about them. We find nothing in the whole evidence in relation to this matter which could, in any way, justify the various allegations of deliberate lies, fraud and forgery made by Mr Smith.

[32] We do not consider the various allegations of harassment in relation to the respondents continued occupation of the subjects to be relevant to the issue before us. Even if we were satisfied that inappropriate means had been used to try to discourage the respondents from staying in occupation, it is clear that this has no bearing on the question of the right to stay. We have looked briefly above at the position of Ms Curran who is now occupying two of the fields. We heard some evidence of other difficulties the respondents had had to face. We heard rather confused material presented by way of questions by Mr Smith about the supply of water. We had understood the questions to relate to the middle sized field. The supply had been cut off. Although we understood, initially, that it was suggested that this was done deliberately to harass the respondents, questions put to the witnesses Mr Barn and Mr Mackenzie were to the effect that the water had been cut off as part of arrangements for movement of a heavy electricity generator. There was no direct evidence of how water came to be cut off from the big field. Mr Kevin Smith appeared to think that loss of the water had something to do with the liquidation of Scotpigs Ltd and that it explained the absence of cattle in recent years. In any event, the problem was that no one had arranged for the water supply to be re-instated. In other words, that even if the water had been cut off quite properly by others, Mr Laird was harassing the respondents by failure to have it re-instated. It was not suggested that he was under any legal obligation to have this done.

[33] It was put to Mr Laird that he was party to deliberate sabotage of fences to make the fields unsuitable for stock. However, there was no challenge to Mr Barn’s evidence that, after the liquidation the whole premises had been subject to what he described as “pillage by the midnight people”. This was long before Mr Laird acquired title. We have little doubt that this could provide an adequate explanation of damage to fences. Mr Mackenzie also spoke of the need for vigilance to deter intruders. There is nothing in the material before us to give the slightest support for the allegation that Mr Laird caused any interference with fences at any time.

[34] The most significant potential criticism of Mr Laird’s conduct related to his having admittedly sent in a contractor to top the grass in 2006. This would have been a perfectly reasonable way for a proprietor to deal with unused grass parks. He said he had given a similar instruction in respect of property at Fettercairn. However, if the field was being used, topping would, in practical terms, destroy the silage crop. When Mr Smith realised that topping was being carried out he spoke to the contractor. Contact was made with Mr Laird who instructed the contractor to stop immediately. However, the grass crop in the big field was effectively ruined. Mr Smith viewed that as a hostile act. He said there had been discussion in 2005 about his continued occupation. Mr Laird was aware that he was asserting a right to be there and ought to have realised that he would be expecting to use the grass. Mr Laird’s position was that there had been tentative discussions and that he had made it clear to Mr Smith that he thought the respondents had no right to be there. As he had heard nothing further he had treated the parks as empty. It appeared that there had then been further discussions between solicitors but Mr Kermack objected to evidence of such discussions. He said there had been discussions of a possible compromise. As we were satisfied that the topping incident in 2006 had no bearing on the question of the respondents’ right to occupy the land, we sustained the objection. Had it been relevant to the issues before us, we might have allowed further exploration of the background. In the event, it is unnecessary for us to make any finding. Although it does appear as a somewhat odd incident, we cannot find, on the available evidence, that it was motivated by a desire to harass.

[35] We have dealt in some detail with these examples because Mr Smith seemed to attach a great deal of weight to them. We are satisfied that the material before us does not begin to justify the assertions of criminal conduct he so freely made.

Direct evidence of the contractual arrangements

[36] We are satisfied that the material discussed above did not have any direct impact on the evidence bearing most closely on the contractual arrangements between the respondents and the owners. Although Mr Kermack accepted that the important question was the arrangement in place in 2003, Mr Smith’s submissions relied entirely on assertions about the arrangement in 1994 and the use made thereafter. It is convenient to start at 1994.

[37] There was no direct evidence of the initial arrangement. Mr Simmers did not purport to have any memory of discussions with Mr Smith although there was never any dispute that he would have been the person involved. For the respondents there was no attempt to present direct evidence about the arrangement. There was no specific assertion in the respondents’ pleadings, or in the letter from his solicitors which first set out the purported basis of his claim, as to precisely when or how the arrangement was made or who was involved in the making of it. The suggestion made in questioning other witnesses was to the effect that there had been a discussion between Mr Simmers and Mr Smith. But, no specific assertion as to the content of any discussion was ever put to Mr Simmers for his comment.

[38] It was never suggested that Mrs Smith was involved in any discussion. However, in response to her suggestion that she did not think they had received invoices every year, she was asked how she knew what rent to pay. She said that her son would usually have a discussion with the local manager as a result of which she would know what rent was to be paid each year. She did not say that her son had told her at any time about the terms of any discussion he had with Mr Simmers.

[39] In considering this aspect it is appropriate to have regard to the full context. The piggeries needed land for disposal of slurry. Indeed Mr Simmers had bought other adjacent land - the original farm of Moathill - in 1992 for the same purpose. Slurry which could not be disposed of by spreading at Muir of Pert had to be taken from the piggery for disposal elsewhere. We have no reason to doubt Mr Simmers’ evidence that the company was involved in a substantial number of grass letting arrangements and was well aware of the difference between a grazing let and a full agricultural tenancy. Although Mr Smith made submissions about the benefit to the piggery of having the firm there as a permanent tenant, there was no evidence as to why that would be better for the company’s purposes than having a succession of grazing leases. There was nothing to suggest that they would have had any difficulty in obtaining another grazing tenant if the respondents had not required the fields. These were all matters which might have had to be discussed had there been any attempt to lead direct evidence. On the face of it there was no reason for Mr Simmers or his company to grant a permanent tenancy. They needed to have control of the fields. As we have seen, the respondents’ use of the subjects was for mowing and grazing. Annual grazing lets met the apparent needs of both parties.

[40] It is not disputed that, from the beginning, the firm showed the fields in their IACS returns under the heading “Short-term Lets or Seasonal Grazings”. We have no doubt that this is a very important aspect of the evidence bearing on the nature of the agreement. The style of the IACS forms varied from year to year. But the relevant forms had a box for inclusion of detail of land “normally farmed by the business” other than the main farm. The express instruction in 1995 was that this was to include land anywhere in the UK but exclude farm codes of short-term lets or seasonal grazings. This box would have been the obvious place to give detail of any permanent tenancy.

[41] Mrs Smith said that she simply put the let under the short-term head because she did that with all the land they did not own. James Smith who signed the returns on behalf of the firm was not led to give his understanding of matters. Whatever the true beliefs of Mrs Smith, we cannot accept that any experienced farmer in Scotland would have failed to recognise the significant difference between a permanent tenancy and a short-term grazing let. In any event, even if the full significance was not realised, the need to fill the forms accurately was well known at least by the later years in the relevant period.

[42] The entry under the “Short-term” heading, first made on behalf of the firm in the 1995 IACS return, justifies an almost irresistible inference that the agreement reached with the owners was, indeed, for a short-term or seasonal grazing let. The copies provided by Mrs Smith showed that in 1994 the firm had rented 11 fields on the one farm, not Muir of Pert. In 1995 the return showed lets from four separate farms. Muir of Pert was shown with a period from 31/3/95 to 1/11/95. It thus appears that the subjects were not only shown as involving a short term let but a precise period was shown. In subsequent years Muir of Pert was not the only farm shown regularly although there were others appearing from time to time. The number varied from four short term lets in 1995 to nine in 1999. After 1995 all the lets appear to have been shown each year with the same dates; namely, 31/3 to 1/11.

[43] Although the forms produced by Mrs Smith were said to be simply handwritten copies of the material submitted to the Department, they may give some support to Mrs Smith’s evidence that she did not think the precise detail shown was of critical importance. The precise periods of let did not match the dates on the Muir of Pert invoices. We do not know whether the other dates shown reflected precisely the other individual arrangements. But there can be no ambiguity about the essential point. Muir of Pert was not only shown as a short term let but was shown with a specific period. This is quite inconsistent with a belief that it was a permanent tenancy. It may be that Mr Smith regarded Muir of Pert as permanent in the sense that he expected to have it renewed every year, although there is no evidence even of that. The only inference to be drawn from the returns is that the respondents thought that what they had been granted was a short-term let.

[44] The entries in the IACS return are of great weight in themselves. But Mrs Smith also told us that their practice was to take advice from the Department on any point of difficulty in relation to completion of the form. A specific, and telling, example was that they had discussed the problem of Muir of Pert with a Mr Napier of the Department in Perth in relation to the return for the year 2004. Mrs Smith said that arrangements for use of the fields in 2004 were “in the air” because they did not know who the owners were. She accepted that they “had no agreement”. They paid no rent. They discussed this with Mr Napier. They were advised just to omit all reference to the fields. That was why there was no mention of the letting in the 2004 return. We think it reasonable to draw the inference that they did not assert to Mr Napier that they believed that they had a permanent tenancy of the land. Whatever the extent of the firm’s awareness of the rights of tenants, a department official could hardly have failed to be aware that a permanent tenancy of agricultural subjects would continue despite a change of landlords.

[45] In short, the IACS returns show that from the start of the arrangement to 2003, the firm treated their use of the fields as being attributable to short-term arrangements and they did not include the fields in 2004 because they did not know what arrangement, if any, would be made for that year. Entries in subsequent years are not relevant to the issue before us.

[46] Another powerful piece of evidence supporting the view that the respondents’ use of the land was on the basis of a series of grazing lets was the evidence of the invoices sent and received. The invoices show a clear understanding that the use of the land was for a limited period; that it was for grazing; and show that the rent varied from year to year. The invoices bore to be dated 30 April in respect of a period purporting to start on 1 May. If sent out on the date shown, they could not have been paid in advance of the grazing period. However, when the fields were being fertilised by the slurry, the respondents would not necessarily have required to take physical entry on that date. It may be that they expected to keep stock on after 31 October, but they never attempted to have the invoices corrected to show a longer period. What is important is that the invoices show a clear understanding that the use of the land was for grazing and was for a limited period.

[47] Mrs Smith’s evidence about the invoices was a little confused because of Mr Smith’s tendency to show his disagreement with her answers either by his expression or by interjection. She did say that what would usually happen was that her son would meet the manager of the piggery to discuss things. That was how they knew the rent to be paid each year. This evidence emerged in relation to the suggestion that they did not always get an invoice. We have discussed above the problem of the two invoices in 2002. There was no doubt about the receipted one. It plainly had been sent to the firm. It plainly showed payment of rent for a grazing season, described as 1 April to 31 October. Mrs Smith accepted that they had paid rent in accordance with the terms of the various other invoices. These were the same as production 29, as printed, but with different years and rents.

[48] Her evidence was to the effect that she thought the invoices were simply clerical mistakes when they referred to grazing let and to a period of let. Although she did not dispute that the level of rent was fixed each year she implied that her understanding of the arrangement was that it was a rent for the whole year. She said that the variation was necessitated by the differing extent to which the land would be used for slurry spreading. She agreed that she had never challenged the invoices. She had never attempted to point out to the proprietors that the invoices were quite wrong.

[49] We cannot accept Mrs Smith’s explanation as reliable. We have no doubt that the terms of the invoices accurately represented the company’s understanding of the nature of the arrangement. We have little doubt that the invoices accurately reflected the respondents’ understanding. The invoices point unequivocally to a series of annual grazing lets. They are quite inconsistent with a full tenancy.

[50] It may be noted that although Mr Smith made much of the absence of any written contract showing that the arrangement was simply a grazing let, the invoices were issued at about the start date of the period of use. Even if they cannot be construed as equivalent to an offer of the grazing accepted by payment of rent, they were, on any view, written statements drawing clearly to the attention of the respondents the terms of the arrangement as understood by the applicants. As we have seen this was never challenged.

[51] In short, we have no doubt that the evidence bearing directly on the nature of the arrangement between the owners and occupiers demonstrated clearly that it took the form of a series of short-term lets for grazing or mowing during the grazing season.

Evidence of use of the fields

[52] In the pleadings, there was an assertion that the respondents took occupation of the three fields as a single unit in 1994 and that they “entered into a verbal agreement with A Simmers Limited to lease the ground for agricultural purposes at an annual rent of £1200”. As we have seen there was no direct evidence about such agreement and their case is essentially based on their assertions that they took up occupation of the three fields in 1994 and that they remained “in permanent agricultural occupation from 1994 and paid rent until 2003”. They asserted that they had grazed livestock on the three fields during that time; taken silage and hay crops; over-wintered cattle and stored silage and hay bales. The pleadings made no mention of having had the use of buildings to accommodate cattle. There was no suggestion that in addition to the fields there was any tenancy involving the large hard standing area to the north west of the big field. It was averred that, at no time, did they vacate the subjects. They did not suggest that their use could be attributed to any additional agreement made after 1994. The case rested on the assertion of an explicit agreement at the outset amounting to something more than a grazing let.

[53] There may be circumstances where evidence of use is sufficient to demonstrate the nature of a contractual arrangement, express or implicit, and it is necessary to look at the detail of the material relied on.

[54] The undisputed evidence of use of the subjects was that they were used regularly by the piggery for spreading of surplus slurry. They were used by the respondents to mow grass for silage. In most, if not all, of the years from 1994 to 2003 they were used for cattle grazing. It was admitted in the pleadings that during the winter months A Simmers Ltd and subsequently Scotpigs Ltd spread slurry on the three fields. There was no dispute that the respondents’ practice was to take advantage of the slurry as a fertiliser and cut the subsequent grass crop. Mr Wilson spoke to a pattern of use of the fields. Slurry would be spread. No cattle would be on them at that time. It was not until the silage was taken in June or July that the cattle would be allowed on the fields to graze. His evidence was not challenged and is quite consistent with normal practice. There are benefits in preventing cattle grazing between the application of fertiliser – in this case the slurry – and the taking of the crop although we are aware that practice can vary.

[55] While the grass was growing for a silage or hay crop, there would be no specific need for any form of physical occupation of the fields by the respondents and we heard no evidence that there was in fact any form of physical occupation at such times far less that the owners would necessarily have known of any such occupation. We are satisfied that storage of the silage bales was on the area of concrete to the north west of the big field. There was no evidence to suggest that this area was ever subject to any express agreement or that rent was ever paid for use of it. It is not part of the three fields referred to in the pleadings. Mr Simmers was not challenged in his evidence that the area was used for storage of pig dung but that there was ample room for the respondents’ bales and he had not objected to their use of the area for storage because it did not interfere with the piggery operations.

[56] Access to the piggery and to the big field was through a locked gate. The respondents were given keys for the gate. They were never asked to hand back the keys. It was not disputed that if the keys were changed they would have been given new keys although there was no evidence of when this happened. No formal steps were ever taken by the owners to prevent the respondents from having access to the fields at any particular times. The respondents had free access to the said area of concrete where they stored their silage. They would have been able to take this silage away for feeding throughout the winter months.

[57] We had no reason to doubt Mr Wilson’s evidence that there would be no cattle on the fields until after the silage was cut in June or July. They would be on from that time and into the winter. There was an area of concrete in the centre of the big field, left over from the time when Muir of Pert had been used as an airfield at the time of World War Two. There were ring feeders there and we accept that cattle were fed in the big field during winter months.

[58] Mr Smith’s brother spoke to a regular practice of helping on the family farm during the relevant period although he had been less involved in recent years. His services were required at the time of making silage. Some of his answers related expressly to work “at the piggeries”. Some of his evidence was more general. He assisted with cutting and baling in the summer. Bales would be left in the field or on the concrete outside the field. He was also involved with cattle. He said that he helped put them on and off the fields and helped with feeding. We accept that his intention was to refer to the relevant subjects when he said there was no doubt that cattle were kept there over the winter. He suggested that they were kept in sheds. We had little direct evidence of the nature of such sheds. Most of the evidence related to the big field. Mr MacKenzie said that cattle were there “seasonally”. In response to a general question about cattle, he went on the say they were “taken in to the garages and to a shed in the big field”. There are now some dilapidated buildings at the south east corner of the big field. Mr Simmers had said there were garages in the small field. It was not suggested to him that they were, or could be, used for in-wintering of cattle. We accept the evidence from Mr Wilson that stock was simply allowed to “run in” the buildings. There was no evidence of any facility at the fields which would allow cattle to be kept indoors over winter months.

[59] The sheds at the corner of the big field are now roofless and dilapidated. There was no evidence of when that occurred. Mr Simmers seemed unaware of the presence of these sheds and that tends to support the view that they had been dilapidated for many years. There was no mention of sheds in the respondents’ pleadings nor in the initial letter of 22 August 2005 from their solicitors. There was no suggestion that the respondents had ever maintained the sheds or raised any question as to their maintenance. Apart from the small building in the smallest field which was said to be used for used for horses, we heard no evidence that other buildings were suitable for animals. There was no challenge to witnesses’ descriptions of the other buildings in or beside that field as “garages”. We cannot accept that there were buildings on the fields suitable to hold stock in winter months.

[60] We heard comments to the effect that the smallest field was hardly used. Mr Kevin Smith observed that “one year he took silage from the small field”. He was not asked to elaborate this.

[61] Put shortly, we are satisfied that the evidence establishes use by the respondents continuing without objection by the owners or anyone on their behalf much later than October in many years, but that there was a period in each year following the spreading of slurry when they respondents were not in active occupation of the fields. For avoidance of doubt, it may be added that we accept that in recent years the respondents applied fertiliser to fields in Spring. That might be accepted as indicative of occupation even if there were no further overt agricultural activities until the cutting. But there was no suggestion of application of fertilisers by the respondents during the period in dispute.

[62] We heard evidence of the use by the firm of the other subjects specified on their IACS returns under the same category as Muir of Pert. As we have noted above, several of the lets were shown year after year. They were accepted as short-term lets but Mrs Smith said that many landlords would in practice allow the respondents to continue to use the land into the winter. Indeed, her evidence was to the effect that some landlords were very flexible in allowing use at all times of the year. In short, although all the other landlords were said to have specified clear periods of let, they did not stick to the strict written terms. She agreed that the respondents were in no doubt that these others were simply grazing lets. She said that she thought the Muir of Pert subjects were different. She thought the Muir of Pert arrangement was “permanent”. Asked about her reasons for saying this she said that all the other owners gave written details annually showing that arrangements were just grazing lets. They usually gave notice of the end of the let.

Submissions

[63] Mr Kermack produced a full written submission setting out the relevant statutory provisions and case law, together with his analysis of evidence. A copy was provided for Mr Smith and we need not repeat the detail. Mr Smith’s submission was essentially based on an assertion that there was a conspiracy to drive him off the land. He asserted that he had been “given the land” in 1994. He now was faced with thuggery, lies and deceit. Pressed as to the basis of his submission that he had been given the land, he said they had never been told to get off. He had had unchallenged use until 2003. This was not disputed. In his cross-examination of Mr Simmers and Mr Laird, and in his submissions, Mr Smith made repeated references to the registration of the tenancy. The applicants had bought the land knowing that the Keeper had accepted the respondents as tenants. It was pointed out to him, when this first arose, that any argument based on the Registration was quite a different argument from that based on a claim to have been given a permanent tenancy in 1994. He was invited to spell out the nature of any claim he might make based on Registration. He did not elaborate the point and we proceed on the basis that any arguments he might have wished to present were dealt with by the decision of the Court on 22 April 2009. We need not repeat this material.

Discussion

[64] As appears from the above, the law relevant to the circumstances of this case was not disputed. The dispute was between a “grazing let” and a “permanent tenancy”. These are convenient shorthand terms representing concepts which are well understood in practice. The latter is sometimes referred to as a “full tenancy” or a “1991 Act tenancy”. It was not disputed by the applicants that if the arrangement was not for a series of grazing lets, it was to be regarded as a “permanent tenancy” and it is unnecessary to say more about that term. Broadly it refers to a tenancy under which the tenant has the benefit of the full provisions of the 1991 Act.

[65] A “grazing let” refers to an arrangement falling within the provisions of section 2(2)(a) of the 1991 Act. The whole section has been repealed but it applied throughout the relevant period in the present case. Section 2(2)(a) is in the following terms:

“(a) a lease entered into (whether or not the lease expressly so provides) in contemplation of the use of the land only for grazing or mowing during some specified period of the year”.

[66] It is clear that the scope of this provision is not restricted to agreements for a single year. Where the arrangement between parties is for a series of separate annual lets, each for a specified period of the year and for the purpose of grazing or mowing, that will fall within the statutory exception: Gill para. 4.16, and for examples Mackenzie v Laird and Scottish Youth Hostels Association v Paterson.

[67] It is also clear that it is not necessary that the “specified period” should be specified by reference to dates. An agreement contemplating use for a grazing or mowing season would be sufficient to qualify as being for a “specified period of the year”: see Mackenzie v Laird and Gill 4.16. Accordingly, even if it was proved that parties had agreed a defined period for grazing by reference to dates but with an understanding that the occupation could start earlier and finish later, if required by the tenant, this would not be sufficient to take the agreement out of the scope of the statutory exception. There was no evidence of any such agreement in the present case but the firm’s entries on the IACS returns might suggest an assumption by the respondents that the specific date shown on the invoices were not critical and that might well have been a shared understanding.

[68] Mr Smith attempted to make something of the fact that he had never been told to leave. That is a relevant part of the background picture of use but is not in any sense determinative. It is clear that there was no need for any formal notice to terminate a grazing let under the provisions of the 1991 Act. We understand that some landlords did use a form of notice at the end of such lets and it may be that such a practice has become more common in light of the provisions of section 2 of the 2003 Act. However, we express no view about the requirements of the latter.

[69] It is particularly important in the context of the present case to keep in mind that the issue is not the nature of the use actually made of the fields. The essential issue is the nature of the contractual arrangement. Evidence of possession and payment of rent may be all that is available to demonstrate the nature of the actual agreement between the parties: see, for example, the well known passage in Morrison Low v Paterson at p.78. But, where there is more direct evidence of the agreement, it will not easily be displaced by any inference arising from use. Rent is one of the essential features of a lease. Where there is explicit evidence of rent being paid for a specific period, occupation and use for some other period without evidence of agreement as to rent will not normally provide any basis for an inference that the use during such period was attributable to a lease. Use of the land for some period other than the expressly agreed period will usually fall to be ascribed either to an informal licence, or privilege, or to the user having illegally exceeded his rights under the agreement: Bell v Inkersall Investments Ltd at para. [24].

[70] We heard no conflicting submissions and it is unnecessary to elaborate the detail of these propositions. However, reference was made by Mr Kermack to the decision in Earl of Ancaster v Doig. That case is an illustration of lengthy use of grazing land along with land held under a tenancy where use of the former was found to be no more than the exercise of a privilege. There was nothing to suggest that the parties had ever considered that the use of that land was part of the tenancy. The Court concluded that: “In the absence of any hint of an agreement to include it, the only reasonable thing to do is to ascribe the grazing right to a continuance throughout the years of the original grant of privilege”.

[71] In that case there was no doubt that rent was being paid for the land held in tenancy adjacent to the disputed subjects and that the two parcels were worked together. But there was no evidence that the parties ever agreed that such rent covered the use of the extra ground. In the present case there is no doubt that rent was being paid for the grazing season but no evidence that it was agreed that such rent covered use at all other times of the year. The issues are not on all fours but the case is a clear illustration that use “however extensive and however honestly made and honestly understood” is not sufficient to demonstrate a contractual right of the nature of a tenancy: at p.261 foot.

[72] In the present case, for reasons set out above, we are entirely satisfied that the direct evidence pointed unequivocally to the contractual arrangement being on the basis of a series of annual grazing lets. The respondents did not satisfy us that they were in full agricultural occupation from one year’s end to the other. But even if they had shown some form of occupation all year round, they did not show that it was attributable to anything more than tolerance or licence. They face the additional difficulty that this tolerance can more readily be attributed to informal agreement of the staff operating the piggery than to any agreement by authorised representatives of the owners. It was not suggested that the piggery managers had authority to grant a lease of the land. Their interest was simply to have the land available for disposal of slurry. There was nothing in Mr Wilson’s evidence to suggest that their use for this was at any time impeded by use being made by the respondents. Although we have no doubt that the relationship between the respondents and local staff was such that consultation would take place if there was any question of interfering with any particular operations of the respondents, there was no evidence to support the averments about this, far less that slurry spreading was only done after such consultation. Mr Wilson said he just did what his manager told him. The local managers had no need to ensure that the respondents were prevented from having access to the fields provided slurry could be spread and no inferences can be drawn from their failure to do so.

[73] Mr Kermack also referred to Commercial Components (Int) Ltd v Young. It may be said that the circumstances have some similarity with the present in respect that the written material there also demonstrated a series of invoices bearing to be in respect of “grazing” and specifying dates from April to October. It is sufficient to say that we reach the same conclusion in the present case as the Sheriff did in that case. In other words we find no proper basis on which any of the payments of rent which purported to be for specified grazing periods should be deemed to be payments of annual rent and we find nothing in the facts and circumstances of the present case to detract from the view that the arrangement between the parties was of a series of grazing lets.

[74] There is no doubt that difficulties could frequently arise under the 1991 Act where a landowner permitted a grazing tenant to stay on after the end of the grazing season and simply acquiesced in the tenant treating the subjects as if they had a permanent right to use them. But, the difficulties were largely difficulties arising from absence of other evidence. Evidence that the tenant was permitted to stay on for a longer grazing spell than the written contract or to use the subjects for minor purposes over the winter months, does not convert an intended series of grazing lets into a full 1991 Act lease. If the terms of an agreement are clearly established by other evidence and there is no evidence of a false contrivance, the inferences from use will only prevail if they show a clear intention to change the agreement.

[75] It may be noted that although Mr Smith did not suggest that the transaction was a “sham”, we have given consideration to whether the circumstance could support such a finding. But, his position was quite straightforward. He contended that the arrangement was a long-term let. He did not attempt to suggest that he had been prevailed upon to accept a series of grazing lets to conceal a permanent agreement nor that the IACS records were made deliberately in implement of any such agreement. Mrs Smith’s evidence was that the terms of the invoices were simply a clerical mistake by the company’s staff. There was no suggestion that there had been any agreement between the parties to show one thing in writing while another thing had been agreed. The case was presented on a black and white basis. We have no doubt that, from the outset the owners intended a series of grazing lets. The respondents were well aware of this.

[76] Mr Smith had some success in persuading us that much of the evidence led on behalf of the applicants in relation to use made of the subjects could not be relied on. He was able to demonstrate a variety of reasons which might have provided motives for witnesses to give false evidence about the nature and extent of the use made of the subjects. However, similar motives could be found for several of his witnesses and we are satisfied that a motive to mislead provides no basis for a finding that any witness has in fact attempted to mislead. We have concluded that most of the matters spoken to by witness had little bearing on the main question. We are satisfied that the inferences to be drawn from the undisputed evidence of the IACS returns and the invoices sent and paid is clear. We did not find persuasive the attempts to displace these inferences.

Decision

[77] We are satisfied that the arrangement for use of the fields throughout the relevant period took the form of a series of leases for mowing or grazing for a specified period within the meaning of section 2(2)(a) of the 1991 Act. Accordingly the applicants are entitled to the declarator concluded for. We did not hear submissions relating to the timing of operation of the secondary crave. That may be a matter of greater practical importance to the respondents than to the applicants and may be capable of being agreed. If not, we await further submissions. As requested at the hearing we await further procedure before determining any issues of expenses.

For the applicant: Mr L Kermack, Solicitor, Edinburgh

For the respondents: Mr D Smith