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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Provan v Swan & Ors [2001] ScotCS 146 (7 June 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/146.html Cite as: [2001] ScotCS 146

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[1] This is a Petition and Answers which appeared before me for hearing on 5 June. At that time it was listed for two hours but in the event if took part of 5 June, the whole of 6 June and finally concluded on 9 June. One of the reasons for that was that the respondents said they were not sufficiently prepared to argue the point. I allowed them time. Thereafter documents were produced as the argument developed right to the end. I suspect in the case of some of these they were passed to counsel without being properly considered.

[2] At the end of the day I decided to grant the prayer of the Petition to the extent reflected in the last interlocutors.

[3] The matter arises in this way. The dispute between the parties concerns some 210 acres of agricultural land situated to the north of Glasgow, and known as Netherinch Farm, Milton of Campsie (I will refer to this as "the farm"). It is delineated on the plan No. 6/1 of process. The plan shows to the north Upper Inchwood Farm which is owned and farmed by the petitioner. Also shown is a property called Netherinch which is a livery and is separately owned by a company called Kelvinhead Limited (see 6/7 and 6/8 of process). The livery is not an issue in this process.

[4] The present owners of the farm are a limited company called Netherinch Farm Company Limited. The petitioner avers that he is in right of the farm by virtue of an agricultural sub-tenancy granted in his favour in March 1991 by a woman Susan McNarey who then lived at an address in Ibrox, Glasgow. He said he possessed the subjects, paid rent and now has a protected tenancy. Nothing was said to me to show that this tenancy had ever been properly terminated. I will return to this.

[5] Susan McNarey herself is averred to be the principal tenant of the farm from the former heritable proprietors of the farm, in the Petition apparently a company called Acremanor Limited (now in liquidation). As the argument proceeded it was less clear that Acremanor Limited as such had ever granted her a tenancy. It did, however, appear that she was a tenant and her tenancy had never been terminated. I will return to this.

[6] What emerges so far is that these tenancies related to land, i.e. the farm, irrespective of personalities or what limited companies are behind them.

[7] That is important because the whole point of protected tenancies is to conserve land and ensure that it is properly farmed and maintained in accordance with the rules of good husbandry.

[8] In 1993 trouble arose between the petitioner and the first respondent Charles Swan. It was of the same nature as what is now alleged. It led to proceedings in this court for interdict and removal of livestock. After sundry proceedings, which at one stage included the imprisonment of Charles Swan, the petitioner regained the farm and also a declarator of his tenancy from the court. The Record in that action and the extract decree were produced to me. Again it is important to note that the declarator identifies the land.

[9] Coming up to date, Article 4 of the Petition now narrates the present complaints, again broadly of encroachment and obstruction: causing the prayer for interdict and removal (under section 46 of the Court of Session Act 1988).

[10] There are no detailed Answers as yet to the Petition but it was made clear to me that the respondents claim that they have granted a tenancy to the third respondent, Ace Security Management Limited. No tenancy agreement was produced to me and I am critical of that. The petitioner then makes certain averments about who controls the various companies which have an interest in these proceedings, and ends by stating why he needs the relief sought.

[11] I turn now to the argument presented to me. No authorities were referred to.

[12] For the petitioner, Mr Hofford began by referring me to the plan (No. 6/1) and said that the petitioner was a protected sub-tenant whose lease from Mrs McNarey had continued to date by tacit relocation. His client had taken possession, grazed the land, paid and was still paying rent. He then took me to the encroachment problems between 1994 and 1997 where the same orders were sought then as now. There had been undertakings by Swan, then alleged breaches of interim interdict with Swan being sent to prison for three months. That was altered on appeal and a Minute and Answers Record was made up (see p. 64 of No. 6/4 of process). Eventually on 17 June 1997 the petitioner obtained the decree of declarator of tenancy already referred to (see 6/3). Perpetual interdict was not sought as he had by then regained possession. He obtained an award of expenses against Swan and Carberry which had never been paid.

[13] The current problems narrated in Article 4 had arisen when beasts had been put on the farm leaving the petitioner only the grazing on his own smaller farm of Upper Inchwood (90 acres). This had led to severe overgrazing and the need to buy extra dry feed. The petitioner did not have space for his 230 cattle (6/13 document page 11) and some had had to be destroyed.

[14] Counsel then went through the history of the various limited companies. He referred me to a number of the productions stressing particularly the events surrounding Netherinch Farm Company Limited. He maintained that Janet Dow, the director, and Messrs Russel and Aitken, the company secretaries, were still in office and had never resigned or been properly removed. He referred me to 6/9, 6/5 and 6/6. He said the apparent series of resignations and new appointments on 18 October 2000 were nothing short of fraudulent. He criticised both Swan and Carberry and maintained each had a criminal record, with Swan having served a prison sentence.

[15] His client who had limited funds and had a small but good farm was suffering hardship. Not only had he shown that he had a protected tenancy but also he had a declarator in his favour. Any possession of the respondents was illegal and the petitioner was entitled to the unencumbered use of his tenanted subjects, the farm.

[16] Counsel later continued with the detail of the tenancies and also argued that when Netherinch Farm Company Limited bought the farm they knew that there was a tenancy on the farm. He referred me to 6/13 page 7. He referred in the same bundle page 1 to the original lease to McNarey which appears to have been granted by Charles Swan. I was also told that the Mrs McNarey was afraid of Swan and was unwilling to disclose her present address publicly. She had an interdict against Swan over molestation and coming on to the subjects of her tenancy.

[17] The argument for the respondents was to this effect. The petitioner only had 25 cattle and half of these belonged to a third party. A video film had been taken of the cattle. The petitioner had chosen to downsize his operation and destroy his cattle. That was his own choice and he would in any event receive compensation. Any rights the petitioner had in his tenancy were subject to any and all defects in Mrs McNarey's tenancy. The rule of tantum et tale applied.

[18] Counsel said that Mrs McNarey's tenancy was at an end and she was not paying rent. In any event the decree of declarator (No. 6/3) had no effect in a question with the respondents.

[19] The third respondents had a tenancy from the owners. They were in possession and grazed 30 horses, 84 cattle and 240 sheep.

[20] The procedure adopted to change the directors and secretary of Netherinch Farm Company Limited was regular. Counsel produced and referred me to the documents in Inventory No. 7. That included, he said, the latest accounts (No. 7/9). The balance of convenience favoured refusal of any interim orders.

[21] There has, of course, been no proof taken but it may be of help if I indicate the view I formed of some of the productions.

[22] I begin with what was produced regarding the tenancies. The respondents have produced nothing. There is a letter dated 2 February 2001 signed by Charles Swan as a director of Netherinch Farming Company Limited to the Department of Agriculture stating that Ace Security Management Limited is the tenant. There is no lease produced and none was produced to me.

[23] On the other hand the petitioner has firstly the declarator in his favour (No. 6/3) and that has already been referred to. Secondly there is the original hand-written sublease (No. 6/2) which has been continued by tacit relocation. Rent has been paid for this lease. It is paid over by the petitioner's solicitors to agents acting for Mrs McNarey (Nos. 6/10 to 12). The rent is paid in arrears and I was told that the solicitors were in funds to pay in July 2001.

[24] The principal lease to Mrs McNarey is also produced (No. 6/13). From that it is clear that it was granted by Charles Swan as an individual and not by Acremanor Limited. Swan has signed it as has McNarey. I was told Mrs McNarey pays her rent to Russel and Aitken as the company secretaries of Netherinch Farm Company Limited. The payments are not vouched by any document but there is no reason not to accept the ex parte statement of counsel about it.

[25] I have already adverted to the fact that there is nothing before me to suggest that the principal tenancy or sub-tenancy have ever been terminated by the giving of the proper notice under the relevant Agricultural Holdings (Scotland) Act in force at the time.

[26] I conclude from all of this that the principal and sub-tenancies still subsist and in that situation there can be no other tenant. Any possession by the third respondents is thus unlawful.

[27] The second matter of importance concerns the operations of Netherinch Farm Company Limited. One matter is beyond dispute. When it purchased the farm in 1996 it was put on notice that there was a tenancy (Nos. 6/13 pages 7 and 8). The company secretary Russel and Aitken was aware of that.

[28] I am unable to draw any clear conclusion about the operations of the Company and in particular the purported extraordinary general meetings on 11 and 18 October 2000. Messrs Russel and Aitken clearly consider that they still act and have not been removed. The respondents contend the opposite. The documents to vouch what happened are Nos. 7/1 to 7 in contrast to 6/13 page 5. Minutes of Meetings were produced. They are not signed by anyone. The letter requesting the meeting (No. 7/1) does not say what was the purpose. It too is not signed. I have serious doubts about the documents produced by the respondents. In the Minute 7/4 to 6 it appears that Russel and Aitken were "dismissed" as secretaries, and Mrs Janet Dow ".... given her termination notice period ..." (No. 6/6 purports to confirm this). Neither of these parties was given any notice of the serious allegations made against them in the Minutes.

[29] What is more surprising and indeed suspicious is No. 7/9 which was produced (very reluctantly) at the end of the hearing. That bears to be a set of accounts for Netherinch Farm Company Limited for the year ended 30 November 2000. It contains a director's report and a Balance Sheet signed on 12 February 2000. What is odd is that Janet Dow has signed on both these dates, i.e. some four months after she had ceased to be a director! It is to be observed that by 19 October 2000 (No. 7/7) Charles Swan was holding himself out as a director. All of this calls for an explanation which was never forthcoming. There is at least a period of six weeks of the accounts for which Janet Dow could not sign. Whatever "notice" she got, No. 6/6 states that her appointment as a director terminated on 18 October 2000.

[30] It may be that there is some explanation for all of this but at present I am not satisfied that the respondents have acted properly in the operations of the Company.

[31] Interdict, and to a lesser degree interim interdict, are equitable remedies, the latter being very much more at the discretion of the judge hearing ex parte statements and seeing unproved documents. Conduct which is in any way questionable makes it hard to give an equitable remedy to that party (in this case the refusal of interim orders).

[32] The status quo is that the respondents have slightly more beasts on the farm than the petitioner wishes to put there. Should that be altered pendente lite by the granting of interim orders?

[33] I have decided that it should for the following reasons. The principal reason is that the petitioner has shown that he is a sub-tenant and is protected. Secondly, there is no evidence whatever that the tenancy had been ended. Thirdly, the adverse possession of the third respondents is not lawful. Their purported title is derived from a Company whose operations recently are at least questionable. The respondents cannot point to any equitable consideration to modify the petitioner's legal right to possess.

[34] I accordingly granted the interim relief in the terms of the interlocutor now under appeal.