Hamish Lean: Proposal for court is worthy of note
Hamish Lean looks at the potential amalgamation of Scotland’s land dispute bodies.
The Scottish government has launched a consultation about the possibility of amalgamating the Scottish Land Court and the Lands Tribunal in Scotland. The Scottish Land Court deals with crofting disputes and disputes between agricultural landlords and tenants.
The Lands Tribunal deals with disputes about compensation for compulsory purchase or loss in value caused by public works, rates appeals for non-domestic premises, references relating to the accuracy of the Land Registry of Scotland and applications for the variation and discharge of land obligations and real burdens in title deeds.
It is not the first time amalgamation has been suggested. In 1975 it was proposed the Land Court be subsumed in the Lands Tribunal, which would get jurisdiction for cases previously dealt with by the Land Court.
This proposal was never followed through, not least due to the political controversy that would have been caused by abolishing the Land Court. It has a strong association in the minds of many people in Scotland with the protection of crofters and agricultural tenants and is seen as something of a bulwark of crofting and agricultural tenant’s rights.
That being said, the Land Court is a court of law and carries out all of its functions impartially in accordance with the law. What particularly distinguishes the Land Court is it is an expert court and its members include a legally qualified chairman and deputy chairman and two lay members who are experienced practical farmers.
It is perhaps testimony to the high reputation of the Land Court that the current proposal is that the Lands Tribunal’s functions be subsumed into the functions of the Land Court and that going forward we will simply have the Scottish Land Court exercising jurisdiction over areas previously dealt with by the court and the Lands Tribunal.
The Land Court also has jurisdiction to deal with agricultural subsidy appeals made by farmers against adverse decisions by the department. Where an appeal is made to the Land Court, the court has the power to award expenses depending on the success or failure of the appeal.
However, it has been suggested the prospect of being liable for expenses if an appeal is lost operates as a barrier to justice.
The Scottish government is in the position to deploy considerable firepower in the form of counsel, sometimes senior counsel in addition to its own in-house solicitors, all funded at public expense.
The consultation paper asks whether it would be better to abolish the power of the court to award expenses one way or the other in the appeal process, or perhaps to introduce a statutory cap on awards of expenses so that appellants would know in advance what their maximum exposure was.
This would be a significant change, which would operate very much to the advantage of farmers.
In my experience, it is often the case that an appeal against a subsidy decision will fail at the internal review stage and will only be successful when it reaches the Scottish Land Court.
A large number of appeals never make it as far as the court because of the fear of incurring expense.
If working farmers had more confidence that they would not be exposing themselves to undue expense by going to court they might have more confidence in challenging decisions by the Scottish government.
Hamish Lean is partner and head of rural property at Shepherd & Wedderburn