Landowner awarded £772 for cattle damage to grassland loses appeal against refusal of additional loss claims

About this case:

• Citation:
  [2025] SAC (Civ) 34
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Claimant and appellant Donnie Smith raised a simple procedure claim against his neighbour Mairi Davidson in 2024 seeking £1,313 for the stated purpose of creating a boundary fence to prevent the respondent’s livestock from entering his property. The appellant argued that the sum awarded for reinstatement was inadequate to fully restore the property and the sheriff erred in failing to consider his updated loss schedule.

The appeal was heard by Sheriff Principal Nigel Ross, with both parties representing themselves.

Generous award

Evidence was led about the boundaries of the respective properties, which were separated by the unfenced midpoint of a burn. On the appellant’s side of the burn, there was a small grassed area which was part of the same field, and then a wire fence which enclosed the appellant’s house and garden. The grassed area between the stream and the fence was rough unimproved grassland, populated by weeds and natural vegetation, which the appellant claimed it was a recreational area.

In his details of claim, the appellant focused on damage caused to his property by the respondent’s cattle, which had crossed the burn between the parties’ properties and damaged fencing, the ground surface, and a wooden jig frame on the grassed area. The respondent maintained that the cattle strayed because of a defective fence owned by the appellant.

The appellant attempted to lodge further claim forms for increased costs of fencing and materials in June 2024 and March 2025 but did not intimate these to the respondent. At the evidential hearing the sheriff noted that the original claim had never been amended and refused the appellant’s motion to insert the additional items claimed on the basis of lack of fair notice to the respondent. The sheriff awarded the sum of £772 in damages, £672 for the fence and £100 for the grassed area, having found that to be a reasonable cost for reinstatement.

In his appeal, the appellant submitted that there was no prejudice to the respondent in admitting the higher claim. She was on notice of these claims because they had been discussed in mediation before the evidential hearing. The award of £100 in respect of the grassed area was arbitrary in the face of evidence demonstrating its recreational use. The respondent submitted that the award was generous, noting that the initial claim was for the replacement of five fence posts while the final award covered replacement of the entire fence.

No error demonstrated

In his decision, Sheriff Ross said of the appellant’s attempts to amend his claim: “The respondent is entitled to rely on the claim which is served on them. If a claimant wishes to change the claim, it is necessary that they tell the respondent if their claim has increased or changed. That can only be done by asking the court’s leave to change the claim and then serving the new claim on the respondent. It is not possible to assume or infer the respondent’s knowledge. In this case, the appellant did not initially do either of those things.”

He added: “Only on the date of the final hearing, when prompted by the court, did the appellant move to increase the claim. By that stage it was too late for the respondent to prepare a response or lodge additional evidence. The sheriff found that the respondent did not have fair notice of the additional items claimed. The decision to exclude those additional items was both principled and rational. No error is demonstrated. The evidential hearing proceeded in relation to the claim originally intimated.”

Considering whether the £100 for the grassland was too low a sum, the Sheriff Principal said: “The sheriff made a careful assessment of the evidence and explained her decision fully. She did not accept the appellant’s evidence on certain points, for the reasons given in the judgment. She awarded the appellant damages, but in doing so decided that the evidence about the extent of the damage was exaggerated, and the claim excessive. There was no basis on which to challenge those findings. It is not enough that the appellant has a different opinion.”

He concluded: “The sheriff required to identify a fair award to reflect what the evidence showed. She did not accept the evidence which alleged that extensive work, and returfing, was necessary to restore an area which was part of a cattle field and which she found to be wild and uncultivated. In the absence of that evidence, and in the absence of any other figure, only an estimated figure was possible. The sheriff identified that only some damage was done, to rough grassland area. The sheriff made no demonstrable error in estimating a modest sum of £100.”

Having determined that no error had been made by the sheriff, the court therefore refused the appeal.