Lord Ordinary orders liquidator to recognise right to buy in dispute over leased Inverness farmland

By Mitchell Skilling

Amanda and Deanna Urquhart argued that they had a right under the Agricultural Holdings (Scotland) Act 2003 to purchase the land from its present owner, West Larkin Ltd, which had entered into liquidation. Their action was opposed by Joseph and Donalda Sweeney, members of the family which controlled WLL prior to its liquidation.

The case was heard by Lord Clark in the Outer House of the Court of Session. The Dean of Faculty, Dunlop QC, and Young, advocate, appeared for the noters and O’Brien QC and Ower, advocate, for the second and third respondents with the first respondent, the liquidator for WLL, making no appearance.

Crystallised right

The second noter and her husband leased Larkin Brae, Inverness, from a company called Vastlands Property Ltd in 1990. The lease came to be within the Agricultural Holdings (Scotland) Act 1991 with a duration of 25 years. In due course VPL’s interest in the land came to be owned by West Larkin Ltd, a company controlled by members of the Sweeney family. The Sweeneys did not accept that the tenancy had been created, leading to a declarator as to the existence of the tenancy being granted in 2000.

Mr Urquhart’s interest in the tenancy was acquired by his daughter, the first noter, in February 2006. In April of that year the noters registered their notice of interest in acquiring the land and arranged to have it re-registered every five years. Two separate notes by the Sweeneys were raised in 2019 seeking to order the liquidator of WLL to challenge the noters’ right to buy but both were refused with the decision affirmed by the Inner House in 2020.

It was the respondents’ position that the noters had ceased to occupy the land or carry out any agricultural activity on it since 2006 and thus had lost the right to buy. Accordingly, the lease had expired in October 2015 and on a plain reading of section 25(12) of the 2003 Act no registration could have effect where no tenancy existed. The noters maintained that the tenancy had continued to exist by tacit relocation, and that they had to remove their livestock from the land as a result of behaviour by the Sweeneys.

Counsel for the noters submitted that they had a crystallised right to buy the land flowing from the undisputed and unreduced exchange of the notice of proposal to transfer in 2019. Under the relevant provisions of the Agricultural Holdings (Scotland) Act 2003, a specific statutory right had been provided to them which the courts could not ignore and to which the liquidator did not lodge a relevant defence.

Deal has been done

In his decision, Lord Clark said of the interpretation of the 2003 Act contended for by the respondents: “It would not make sense to interpret the provisions in Part 2 of the 2003 Act as giving a free-standing right to challenge under section 25(12) based on the allegation of the tenancy no longer being a 1991 Act tenancy and having come to an end. Under the scheme, where there is such an issue it is dealt with by a challenge by the owner under section 25(8) or (if there is termination after registration) a notice by the landlord to the Keeper that the lease has terminated, under section 25(13).”

He explained further: “The second and third respondents’ challenge is that there was no longer a 1991 Act tenancy from 2006, and the lease terminated in 2015. But in fact registration occurred thereafter (in 2016 and then in 2021). Put shortly, section 25(12) deals with the specified forms of challenge to registration occurring within a period of 5 years after registration by notification to the Keeper. It does not allow the much broader form of challenge made by the second and third respondents.”

Turning to the rights held by the noters, Lord Clark said: “The legislation is clear that once the notice from the owner has been intimated the right to buy exists and the tenant can take it forward to completion. So, if the tenant gives a notice in response that he intends to buy the land, the right becomes enforceable. There was of course no challenge under section 25(8) [of the 2003 Act] by the landlord or liquidator here. I conclude that the noters’ right has crystallised by virtue of the exchange of notices. The scheme has been followed through to its final stage by the owner and the tenant.”

He continued: “The deal has in effect been done, subject to valuation. It cannot now be recanted by a challenge under section 25(12). Even if the interpretation put forward by the second and third respondents in relation to section 25(12) had been correct, it would come too late to seek to interfere with the crystallised right to buy. On this ground alone, the noters’ claim succeeds.”

Lord Clark therefore granted the order sought by the noters to direct the liquidator, to conclude missives for the sale of the land.

Legal Services Agency makes plea to end harsh Criminal Injuries Compensations rule

The UK government launched a consultation on revising the scheme’s unspent convictions eligibility rule in the wake of a High Court finding that it had not met a legitimate expectation to consult on the reform of the rule.

The exclusion was introduced in 2012 and makes an applicant with an unspent criminal conviction that results in a custodial or community sentence completely ineligible for an award from the Criminal Injuries Compensation Authority.

This requirement has been justified by the government on the basis of “public sentiment” that criminals should not receive compensation. Yet in two recent Inner House cases, the government failed to indicate how such sentiment had been assessed.

Furthermore, human rights lawyers have said individual circumstances must be taken into account. For example, one victim suffering from profound mental health disorders, caused by severe sexual abuse as a child, struggled with social situations and volatility, leading her to commit a comparatively minor offence. She received a community order as a consequence, and this made her ineligible for compensation.

In another case, a man who received a community order after throwing an egg at someone, submitted a compensation application for the HIV infection that he had sustained as a consequence of a sexual attack. He was not eligible for compensation.

Paul Brown, principal solicitor at LSA, said: “I am deeply concerned about the unfairness caused by the way unspent convictions are treated by the 2012 Criminal Injuries Compensation Scheme. Many people with very severe injuries caused by crimes of violence end up with nothing, because of minor unspent convictions. In some cases there is no discretion and there is nothing that can be done about it. This was introduced by the 2012 Scheme and, to be frank, without any debate or justification.

“The worst cases are people suffering severe brain injuries, and commit minor offences as a result of their injury. The arrangements before 2012 have built in discretion so the individual circumstances could be taken into account. We are calling on the UK government to return to the approach taken before then, and on the Scottish government to state their position, as this is a cross border issue.”

LSA has submitted a response to the consultation and supports the removal of any automatic exclusion of victims who have unspent convictions.

Balfour and Manson promotes Will Wallace to associate

Mr Wallace, who joined the Edinburgh-based firm as a solicitor in April 2021 from McCash and Hunter in Perth, took up his new role this week.

He said: “I am delighted to be offered this new opportunity at Balfour+Manson. It is a great firm to work for, with a consistent focus on providing an excellent and thorough service to clients. From a personal perspective, it is always a privilege to assist clients during an exciting period in their lives.”

Robert Holland, one of the senior management team at Balfour and Manson, said: “Will has shown great enthusiasm and fantastic client care since he joined us, and his promotion is well deserved. We wish him all the very best in his new role – and we know he will enhance the team, and the wider firm.”

Erin Grieve: The Wagatha Christie trial

The facts of the enthralling WAG drama are relatively simple. Colleen Rooney, aware that certain personal stories involving her family had appeared in the press, embarked upon a fairly elaborate scheme to ascertain who had been sharing that information. In a reveal that has since led the scandal to be dubbed the “Wagatha Christie” affair, Colleen tweeted that the stories had been shared by “….Rebekah Vardy’s account”. The accusation was denied by Rebekah Vardy who claimed that her Instagram account had been hacked. Subsequently, Vardy announced that she was raising proceedings against Rooney on the basis that her reputation had been damaged by these accusations.

A statement, which may be written or spoken, is deemed to be defamatory when it is published to an audience beyond the individual whom it concerns and when it has caused, or is likely to cause, serious harm to that individual’s reputation. The new legislation also addresses the matter of sharing defamatory material – retweeting a defamatory statement will generally not be considered defamation in itself but ‘quote-tweeting’ or editing a defamatory post could be enough for the sharer to be found to be liable. The defences to a claim for defamation remain largely unchanged. One of the most common defences is that the statement which is said to be defamatory is in fact true, or at the least substantially true.

Colleen Rooney’s defence largely succeeded on the basis that the court held that the accusation concerning Rebekah Vardy was likely to be true based on the evidence presented. The information disclosed by Rebekah Vardy was generally trivial, and indeed often contrived solely for the purpose of allowing Rooney to ascertain who was leaking stories to the press, but this has no relevance on the court’s ruling. Individuals are inherently entitled to privacy and the veracity of the stories which were posted with the intention of seeking out the party passing on this information has no bearing on the claim or the defence. In summarising the judgement, Mrs Justice Steyn addressed the substance of the leaked material stating that “this does not detract from the conclusion that the essential sting of the libel has been shown to be true”.

The case addresses the key points of the law of defamation. One party (Rooney) made a statement, which was shared publicly, which could be said to have a damaging impact on the reputation of the subject of that statement (Vardy). In order to protect her reputation and to seek reparation by way of damages Vardy raised a claim. Following many days of evidence, which played out in the public eye and included a purported ignorance of Davey Jones and accounts of phones being lost at sea, the court held that on the basis of the evidence provided Colleen Rooney could, at least, have reasonably believed that the statement she made was substantial true. In addition, Rooney argued that the “reveal” was in the public interest on the basis that she was entitled to highlight the unsavoury practice of disclosing information concerning celebrities’ private lives to the press. While the court did not entirely accept that the method by which the reveal was made it was agreed that it was ultimately in the public interest for Rooney to share the now infamous post.

In Scotland, the law of defamation has recently received a revamp with a legislative update by way of the Defamation and Malicious Publication (Scotland) Act 2021, which became law in April 2021. The Act is intended to simplify the law of defamation in Scotland while also providing for situations which have arisen as result of technological advances. Previously, claimants looking to seek orders from the court which would entitle them to damages were forced to rely upon the common law and to refer to previous judgments support their claims. The new legislation aims to provide clarity in relation to what constitutes defamation, who can bring defamation proceedings and what possible defences are available to those who find themselves defending a claim.

The decision made by the court, and indeed the new Scottish legislation, will provide much-needed clarity on an area of law which has for some time caused uncertainty. Given the impact that defamatory statements can have, it is crucial that the law is easily accessible for both the legal profession and the general public.

While we all enjoyed the playing out of a salacious high profile trial it is important to remember that defamation can also have a devastating effect, and not just on those who have celebrity status. The old adage “think before you speak” can help one avoid finding themselves on the defending side of a defamation claim.

Erin Grieve is an associate at Addleshaw Goddard

Cameron House FAI begins this month

Richard Dyson, 38, and Simon Midgley, 32, lost their lives in the blaze at Cameron House Hotel in December 2017.

The purpose of a fatal accident inquiry is to determine the cause of death and to establish what lessons can be learned for the future in order to minimise the risk of future deaths in similar circumstances.

Last January, hotel operator Cameron House Resort (Loch Lomond) Ltd was fined £500,000, while night porter Christopher O’Malley, 36, of Renton, was handed a community payback order at Dumbarton Sheriff Court.

The fire started after Mr O’Malley placed ash and embers from a fireplace into a polythene bag and placed this inside a cupboard that contained combustible materials.

Cameron House Resort (Loch Lomond) Ltd admitted failing to take the necessary fire-safety measures and that it had breached health and safety rules.

A preliminary hearing held yesterday confirmed that the FAI will be held on August 15.

US: Last woman convicted in Salem witch trials exonerated

Elizabeth Johnson Jr’s name was cleared following the efforts of a primary school teacher and her pupils.

Ms Johnson was sentenced to death in 1693 but was granted a reprieve and avoided execution. The exoneration was included in a $53 billion state budget and was the culmination of a lobbying effort by teacher Carrie LaPierre and a state senator.

Ms LaPierre said she was “excited and relieved”. She added: “We called her E.J.J., all the kids and I. She just became one of our world, in a sense.”

Little is known about Ms Johnson’s life. The governor of Massachusetts granted her a reprieve and she died in 1747, at the age of 77. Unlike others who were convicted, however, she had no descendants to clear her name.

The campaign to exonerate her was part of a project for Ms LaPierre’s class and gave her the opportunity to teach her pupils about research methods and the legislative process.

They were assisted by state senator, Diana DiZoglio, who added an amendment to the budget bill after Ms LaPierre and her pupils’ earlier efforts had failed.

“These students have set an incredible example of the power of advocacy and speaking up for others who don’t have a voice,” Ms DiZoglio said.

At least 172 people from Salem and nearby towns were accused of witchcraft in 1692 as part of an inquisition led by the Puritans.

Man who allegedly threatened the Queen charged under Treason Act

Jaswant Singh Chail, 20, who was sectioned under the Mental Health Act 1983 following his arrest, was also charged with possession of an offensive weapon.

Prosecutors confirmed that the decision to press charges followed an investigation by the Metropolitan Police’s counter-terrorism unit.

Mr Chali, who is currently in custody, will appear at Westminster Magistrates Court on 17 August.

He was charged under the Treason Act 1842, which details “Proceedings against Persons guilty of Attempt against the Person of the Sovereign”.

Nick Price, the head of the CPS’s special crime and counter-terrorism division, said: “The CPS has authorised the Metropolitan police to charge Jaswant Singh Chail with offences after he was arrested in the grounds of Windsor Castle on 25 December 2021 carrying a crossbow.

“The CPS reminds all concerned that criminal proceedings against Chail are active and that he has the right to a fair trial.”

FACBA lends local charities a helping hand

FACBA member Kenneth Cloggie said: “The Scottish bar is keenly aware of the struggles being faced by some community members, as well as those battling potentially terminal illnesses.

“FACBA is keen to play a part where it can in support of these agencies that provide help and hope to the people who need their services most. We hope these donations can assist, in some small way, to allow these agencies to continue their valuable work.”

Sense Scotland and Who Cares? Scotland each received £1,000 from FACBA.

Sense Scotland assists people with communication support needs associated with complex and sensory disabilities, and their families. “We are grateful to FACBA for recognising us and the important work we do. This donation will help support our charitable services across Scotland, and assist us to meet the needs of the people we support and their families,” said Angela Bonomy, CEO of Sense Scotland.

Who Cares? Scotland is a national voluntary organisation, working with care experienced young people and care leavers across Scotland.

FACBA also donated £500 to The Lodging House Mission and Beatson Cancer Charity.

The Lodging House Mission offers care and support to homeless, vulnerable and socially excluded people to help them get their lives back on track. It provides educational opportunities and recreational activities, food, essential facilities such as showers, telephone, internet access and access to support staff, counsellors and chaplaincy services. It also often provides laundry services to rough sleepers and those in hospitals with no access to help with clean clothing. 

Operations manager June Macleod said the charity is constantly looking at ways to extend its services. Recent additions to its range of recreational activities include setting up a pop-up pitch for younger community members to enjoy a “kick about and enjoy an inclusive, fun activity in a safe and welcoming environment. Donations like the one we received from FACBA make it possible for us to extend services like this to even more people feeling excluded and unhappy,” she said.

Beatson Cancer Charity believes that no one should face cancer on their own. Thousands of patients have received therapies at the Wellbeing Centre Beatson Cancer Charity.

“We are so grateful for this wonderful donation from FACBA,” said CEO Martin Cawley. “Donations like this allow us to work on developing new services to enhance the care and support cancer patients and their families receive during their cancer journey. Thank you to everyone at FACBA who helped raise this fantastic amount of money.”

Macdonald Henderson advises N4 Investments on Opulus Financial deal

With a team of over 40 people based across the west of Scotland, Opulus provides a range of financial and operational solutions to help small and medium-sized businesses grow.

N4’s seven-figure investment will allow the business to continue building a multi-disciplinary team and enable further expansion across Scotland and beyond.

Keith Gibson, partner at N4, said: “We are delighted to partner with chief executive Matthew Garstang and the wider Opulus team as they continue to develop their unique CFO solutions offering.”

He added: “We are delighted to work with Macdonald Henderson in completing our investment in Opulus and making the four acquisitions into the platform to date.

“As usual, David and his team have provided a pragmatic approach and a professional service allowing us to move forward quickly and efficiently to implement our plans for the company.”

Quote of the day

Sigh no more, ladies, sigh no more,
Men were deceivers ever;
One foot in sea, and one on shore,
To one thing constant never.

Shakespeare, ‘Much Ado About Nothing’ (1598)

And finally… the law is an ass

Councillors in Cockington, a village in south-east England, made Patrick the pony their honorary mayor in a widely-publicised ceremony last month.

Patrick made regular appearances in an “interaction pen” built in the garden of The Drum Inn until council officials contacted the pub landlord over its failure to secure planning consent for the special enclosure.

The pub has now dismantled the interaction pen to avoid the expense of applying for planning consent, meaning that Patrick will no longer make appearances there to meet the public and drink Guinness, The Times reports.

The council said it investigated the planning issue following a complaint from a member of the public, sparking consternation among Patrick’s supporters.

Leon Butler, a local resident and former chairman of Torquay Neighbourhood Plan Forum, told The Times: “I’m pretty certain it’s all about Patrick becoming mayor, it’s someone who doesn’t like that. I suspect there are a lot of people who have got an axe to grind.

“I have my suspicions of who it is, it’s someone who also thinks they are mayor of Cockington and they do have a habit of sticking their nose in. They have made quite anti-Patrick posts on Facebook and barbed comments.”

Advantages of Custom Legal Case Management Software

In 2022 law firm leaders are choosing customisable legal software because of its high ease of use and automation levels, which is resulting in a marked improvement in employee productivity and business efficiency.

In this article Grant Yuill, Denovo’s head of marketing, sheds light on the key advantages, scalability and flexibility which allows their custom software, CaseLoad, to adapt to a law firms growing business needs over time.

Read more – Law Firm Case Management Software

How augmented intelligence in eDiscovery helps find the smoking gun

eDiscovery relates to the identification, collection and presentation of electronically stored information (“ESI”), usually to assist in investigations, litigation, or FOI requests. ESI can be vast and may include emails, electronic documents, voicemail, social media data, websites, audio and video files. Effective eDiscovery ensures that ESI reviews are as efficient as possible by reducing the review population down to a sensible and proportionate size and targeting the most relevant information through the use of Technology Assisted Review (“TAR”).

Each eDiscovery review will have broadly the same requirements, and a basic workflow should look something like this:

1. Collection – working with the client organisation we will identify data locations (e.g. laptop/desktop/server/smartphone) and the most efficient way to collect data. Data may be able to be collected remotely, or physical collection of an asset may be necessary to create an image of a device’s hard drive.
2. Data Triage – we will perform a simple data triage which may include the exclusion of certain file types, date ranges, unnecessary custodians, unnecessary domains (e.g. @bbc, @internalnewsletter).
3. Data Processing / Loading - data is then loaded into the eDiscovery platform before de-duplication and Optical Character Recognition (“OCR”) is performed to ensure data is searchable.
4. Filtering / Foldering - additional ‘positive’ and ‘negative’ searching is performed to set aside unnecessary documents and create folders of documents for review.
5. Review - documents are then reviewed and tagged for relevance.

The bulk of the work occurs once the newly created ‘Review Universe’ has been created on the platform, and access has been granted to the review team.

What can AI add?  

Image Labelling - The system will use AI to ‘label’ photos and images in documents, which can then be searched. Examples include:

• Construction Litigation - “bulldozer”, “soil”, “scaffolding” may find pictures of construction equipment and pictures of building sites
• Internal investigation - “computer screen” may bring back photos of confidential internal information that an employee captured
• Fraud or asset tracing - “watch”, “boat”, “ferrari”, “car” may bring back pictures of items of high value

Sentiment Analysis - Rather than relying on narrow keywords such as ‘Angry’ or ‘Upset’, the system analyses words and their correlation to one another, plus indicators of sentiment such as conspiration, intent, anger (including overuse of upper-case characters), to return email conversations of interest.

Recent examples identified by the feature include:

• This is creating a toxic atmosphere
• The accident could have been easily avoided
• I am very concerned with the error made
• This was a dodgy position
• HOW DID THIS HAPPEN?
• I am not responsible and will not cover costs

Machine Learning and Technology Assisted Review (TAR)

Possibly the most interesting AI feature is that through TAR the eDiscovery platform learns from the previous tagging and coding decisions made by the human reviewer by analysing the underlying metadata of a document alongside the textual content of the document and whether the reviewer classes each document as relevant or not. This analysis allows the system to assign a ‘likely relevance score’ to unreviewed documents, which can focus the review process to what are considered to be the most relevant documents first.

In simple terms, the technology will review a random set of documents/emails and assign a ‘relevance ranking’ (e.g. 95%+ = priority documents, 85-94% = 2nd priority etc) and can provide statistics as required. This means the reviewers can focus on not just the documents that have keywords or phrases identified within them but the documents that have these keywords or phrases in them as well as other features that make them more likely to contain the information that is being searched for.

Summary

There are a variety of extremely beneficial time (and cost) saving features in eDiscovery document review platforms. If you follow a straightforward workflow, it is incredibly easy to overlay that workflow with the more sophisticated AI features to greatly increase the chances of finding the relevant information or documents for the matter. It’s not just about finding the information, it’s about finding it in the quickest and most efficient way.

To discuss how eDiscovery can assist you please contact Ben Hammerton (ben.hammerton@quantuma.com) or David Bell (david.bell@quantuma.com) in our forensic accounting and investigations team.