Land Court rules trading name can validly identify landlord in statutory notice

On the death of the tenant of a farm in Banffshire, his executrix transferred the lease to the respondent Mrs Leith. Section 12 of the Agricultural Holdings (Scotland) Act 1991 made the transfer dependent on her timeously giving notice of the transfer to the Earl of Seafield as the landowner. The notice for the respondent was addressed not to the Earl, but to “Seafield Estates Office”. The Earl applied to the Land Court for a determination that the notice was invalid because it had not been addressed to him but to a premises.

The respondent’s defence was that in a course of dealing the applicant had described himself to tenants of the farm as ‘The Earl of Seafield’s Estate’ and ‘Seafield Estate’, and in drafting the notice her solicitor had relied on that.

The applicant objected to the relevancy of the defence. After debate, the Land Court repelled the objection.

The court said: “In Ben Cleuch Estates Ltd v Scottish Enterprise … the Inner House rejected the proposition that a notice directed to the wrong legal entity could nevertheless be effective. In Balgray Ltd v Hodgson … the Inner House again emphasised the importance of the addressee and the need for certainty in the law relating to notices. We do not demur from the propositions of law established by those authorities. Notice under section 12(1) must be given to the landlord.

“The respondent’s written case is not, however, concerned with a notice directed to a different legal person. Rather, the respondent … offers to prove that, for many years, the applicant and his predecessors conducted business relating to the Holding under the descriptions ‘The Earl of Seafield’s Estate’ and ‘Seafield Estate’; that those descriptions appeared in correspondence and other documents emanating from the landlord. …

“Her case is that the designation used in the notice was itself capable of identifying the landlord. Whether that contention is well founded depends upon the factual context …

“Ben Cleuch and Balgray establish that a notice must be given to the correct recipient. They do not determine whether particular words are capable of identifying that recipient in circumstances where the meaning and significance of the words used are themselves in dispute. … [The] question is whether, assuming the respondent’s averments to be true, the designation used in the notices was itself capable of identifying the landlord notwithstanding the presence of the additional superfluous text.

“Hoe International Ltd v Andersen … emphasised that, in considering formal notices, regard may require to be had to how a reasonable recipient would understand the communication in its objective context. The respondent’s averments are directed precisely to that issue. …

“The presence of additional or superfluous words will not necessarily invalidate an otherwise effective notice where the notice continues to identify the relevant party, achieves its statutory purpose and is not capable of causing practical prejudice: EE Ltd v Alloa Football & Athletic Club Ltd, Lands Tribunal for Scotland, 15 May 2024 … [This year] Lord Sandison observed in The Renaissance Club at Archerfield LLP v BVB Sureties Ltd that the principle superfluanon nocent may apply in the context of formal notices and that additional wording does not invalidate such a notice unless it materially alters its legal effect or is capable of misleading the recipient as to a matter of significance. … we are unable to conclude … that her case on notice must necessarily fail. If the respondent succeeds in proving that ‘Seafield Estate’ was a recognised designation of the landlord and that a reasonable recipient would have understood the imperfectly phrased notices as nonetheless identifying the applicant, it cannot be said at debate that the inclusion of the additional phrase ‘s Office’ necessarily deprived the notice of that character.”

The court held parallel pleas of personal bar and waiver by the respondent were also relevant for proof. “The availability in principle of personal bar in the context of formal notices was confirmed by the Inner House in Ben Cleuch Estates Ltd v Scottish Enterprise”. It concluded: “We repel the applicant’s third plea in law. We allow parties a proof before answer of their respective averments.”

The applicant was represented by David Ford, solicitor-advocate, instructed by Brodies; Michael Upton, advocate, instructed by Stronachs, appeared for the respondent.