Agricultural & Rural Law

Crewpace Limited v Mark Robert French and Mrs Rohaise French, [2011] CSOH 133

Thu, 25 Aug 2011 08:26:00 GMT

Outer House case considering an agricultural lease of Rockside Farm at Bruichladdich on Islay. The tenants were Rockside Farming Company (of which Mr and Mrs French were directors). The farm had been owned by one owner but, following the grant of the lease, part of the farm (776.5ha) was sold to Crewpace. The remaining part (14.5ha) was sold to Mr and Mrs French with the result that both Crewpace and Mr and Mrs French became landlords under a single lease.

Mr and Mrs French let part of the land to which they had title to a distillery and sold two further parts. Crewpace argued that Mr and Mrs French should have sought their consent before doing so. They therefore sought declarator that the Frenchs had unlawfully interfered with their interest as “joint landlords”, payment of recompense (for unjustified enrichment) and an interdict preventing Mr and Mrs French from resuming or selling any further parts of the leased subjects without their consent.

Essentially Crewpace’s argument was that their interest in the lease was “common property” and held by them and Mr and Mrs French as “joint landlords”. As such Crewpace claimed to have an interest in the whole subjects similar to that of a pro indiviso owner with regard to management, control and disposal of the land.

Temporary Judge Morag Wise QC preferred Mr and Mrs French’s arguments to the effect that there is no landlord’s interest separate from the right of ownership finding that a landlord’s right is inextricably linked with its title and dismissed the action.

UKEATPA/1189/10 Miss O Baiyelo v London Borough of Southwark & Others

Thu, 07 Jul 2011 11:44:44 GMT

Reasonableness of dismissal: The claimant, an employee of the Council, was dismissed following the discovery that she had presented herself as homeless and made an application for the 'right-to-buy' a property, despite already owning a property which she had not disclosed on the application form. The Tribunal held that the respondent had conducted a reasonable investigation into the matters, that there was a genuine belief that the claimant had not disclosed material which she ought to have disclosed and that she was guilty of gross misconduct. It did so after a reasonable investigation and dismissal was in the band of reasonable responses. On review, the Tribunal would not vary its decision in the light of new evidence brought by the claimant since the evidence could have been adduced during the course of the hearing.

The EAT upheld the ET judgment, saying that the ET was entitled to form a view about the new evidence and there was ample other material upon which the Tribunal had already based its decision with no necessity for the new evidence. Two other submissions from the claimant, namely bias by a Tribunal member and an application to adduce new evidence before the EAT, were rejected.

UKEAT/0334/10 Newcastle City Council v Mrs K Spires

Mon, 04 Apr 2011 13:36:07 GMT

Disability Discrimination - Reasonable adjustments: The claimant went off sick due to stress caused by the working practices at the respondent. Grievances were initially not dealt with and an occupational health report concluded that the claimant would not be able to return to her job nor indeed do alternative work within the respondent but did not consider that the claimant met the criteria for ill-health retirement. The claimant eventually resigned on the same day that her sick pay ran out and alleged amongst other things that she should have been put on the redeployment register. The Tribunal found that the respondent was in breach of its duty to make reasonable adjustments; they should have given the claimant an assurance that she would not be put back into the same working environment which had caused her the stress, and they should have considered medical redeployment as an option. The Tribunal also found that the respondent was in breach of the implied term of trust and confidence and the implied term that the respondent will reasonably and promptly afford a reasonable opportunity to employees to obtain redress of any grievance they may have. The respondent challenged the finding that the claimant had not affirmed the contract; they claimed that it was too much of a coincidence that the claimant’s decision to resign took place when her sick pay ran out.

The EAT ruled that that the Tribunal’s finding that the respondent should have ‘explored’ medical redeployment was insufficient and did not address the specific reasonable adjustment put forward, namely that the claimant ought to have been placed on the redeployment register. Also, the Tribunal was entitled to find that the failure by the respondent to deal with her grievance was the ‘last straw’ and that the claimant had not affirmed the contract by receiving sick pay.

Nintendo Company Ltd & Anor v Playables Ltd & Anor, [2010] EWHC 1932 (Ch), 28/07/2010

Wed, 08 Sep 2010 19:48:06 GMT

The manufacturer and distributor of a games console were entitled to summary judgment against a company and its sole director pursuant to the circumvention of copy-protection provisions contained in ss. 296ZD and 296 CDPA 1988, where the defendants had imported and dealt in devices which enabled the playing of unlawful copies of games on the consoles. S.296ZD provided for strict liability and the fact that the devices could be used for a non-infringing purpose was not a defence provided one of the conditions in s.296ZD(1)(b) was satisfied. Under s.296 the defendants did not have a realistic prospect of asserting they did not know of the unlawful uses to which their device would be put. In respect of export sales summary judgment was granted under s.296ZD although refused under s.296 because ‘infringing copies’ could not be made abroad.

Crema v Cenkos Securities Plc, [2010] EWHC 461 (Comm), 16/03/2010

Wed, 05 May 2010 17:14:18 GMT

The Claimant was an investment banker who worked on a freelance basis. The Defendant was retained to find investors for a company and agreed with the Claimant that he would act as a sub-broker and receive 70% of the brokerage fee due to the Defendant. The Claimant identified a potential investor and introduced him. This potential investor in turn introduced a further investor who did invest in the company. The company was unable to meet the Defendant’s fee because it did not have the assets. The Claimant argued that he was entitled to his 70% portion of the fee irrespective of whether the main broker had actually been paid. Although the Claimant was the effective cause of the introduction of the ultimate investor he was not entitled to his portion of the fee where the main broker had not been paid.

AON Ltd v JLT Reinsurance Brokers Ltd and others (QB) (14 January 2010)

Thu, 04 Feb 2010 16:03:54 GMT

The claimant was an insurance broking company involved in insuring aviation risks with an international presence. It was one of the four main companies in that market, together with the first defendant and other such companies. It was common ground that 16 of the claimant's employees resigned from the claimant's employ and moved to the first defendant. The claimant brought proceedings against the defendants, alleging that the first defendant had carried out what was commonly called a 'team poaching' exercise and had procured the resignations of 16 of its staff, all experienced and all valued with established contact with clients and confidential information which belonged to the claimant. It further alleged that that was a concerted action and was the result of the first defendant procuring the services of those staff in breach of their contracts of employment. The claimant made a without notice application for relief and received an order accordingly. The defendants contended that the order should be di scharged in its entirety. The Court ruled that the order be discharged as all that had been shown was a good arguable case, no more and no less. The order was far wider than anything in any other case discussed and was the very antithesis of the focused and proportionate approach that might have made such an application more palatable.

Fraser v Bolt Burdon & Ors (QB) (23 November 2009)

Tue, 29 Dec 2009 23:38:18 GMT

The advice of Counsel to accept an offer to setztle in respect of a professional negligence arising out of a time-barred clinical negligence case was advice to be expected of a reasonably competent solicitor or barrister and was in fact very good advice.

Mrs Graham Tuley & Mrs Margot Tuley v. The Highland Council [2009] CSIH 31A

Tue, 21 Apr 2009 13:22:00 GMT

Appeal from the Sheriff Court:- The pursuers were the landowners of an area of woodland in Fortrose. On 7 November 2005 the defenders served on the pursuers a notice under section 14(2) of the Land Reform (Scotland) Act 2003 requiring the landowner to take certain remedial action specified in the notice in relation to various provisions respecting public rights of access to land for recreational purposes. The notice required the pursuers to allow equestrian access to the track in question in addition to the existing pedestrian access which a walker had by passing through a gap between barriers and adjoining fences. By way of a summary application under section 14(4) of the 2003 Act the pursuers sought recall or variation of the notice. At proof the case advanced by the pursuers was that the purpose in erecting the barriers preventing equestrian and vehicular access was to prevent damage to their land, in particular soil erosion. The position advanced on behalf of the defenders was that it was for the access-taker to decide whether the taking of access would be responsible and it was for the horse rider to take the decision whether he could appropriately ride over the land without causing unacceptable damage and the landowner could not prejudge that issue or deprive the horse rider of the opportunity of making such a decision. Following proof the sheriff refused the summary application and it was against that decision that the pursuers appealed. The grounds of appeal related to the way the sheriff dealt with the expert evidence in relation to the anticipated soil erosion and the sheriff's interpretation of section 14 of the 2003 Act.

Mr A Beck v Canadian Imperial Bank of Commerce UKEAT/0064/09

Fri, 06 Mar 2009 18:24:00 GMT

Practice and Procedure - Disclosure

Disclosure of specific documents is necessary where evidence in a different employee’s grievance, of a “smoking gun” supporting the Claimant’s case of race discrimination, is found and sought to be pursued. Employment Judge’s refusal set aside and a fresh narrower application granted.

O’Carroll v Ryanair - Aberdeen Sheriff Court, 11th September 2008

Thu, 25 Sep 2008 08:33:00 GMT

The Pursuers/Appellents raised a small claim action for damages after the arrival of their baggage was delayed for 48 hours. They sought out of pocket expenses and also compensation for stress, inconvenience and disruption to their holiday. At the preliminary hearing the Sheriff had noted that there was no dispute on the facts but the issue was whether the court had jurisdiction and, if it did, whether the Defenders were protected under the Montreal Convention 1999, which, it was accepted, governed the contract between the parties, and were not liable to pay damages to the Pursuers. At proof, the Defenders had not insisted on their defence based on jurisdiction, but continued to argue that the Pursuers were not entitled to damages. The Sheriff found that they were and granted decree for the sum sued for plus expenses. This included an award of £275 for each Pursuer as compensation for stress and inconvenience. The Defenders appealedon the issue of whether the Sheriff had been entitled to hold that the Pursuers’ claim for compensation for stress and inconvenience was allowable. They argued that the claim fell to be excluded under Articles 29 of the Convention as being “punative, exemplary or non compensatory”. The Sheriff Principal considered a number of County Court decisions referred to by the Defenders, but did not find these helpful. He upheld the Sheriff’s decision. It was clear that the damages awarded were compensatory. The Sheriff had also been correct to refuse to hear any argument on the quantum of the Pursuers’ claim as this was not raised by the Defenders at the preliminary hearing – they had only taken issue on the question of jurisdiction.

Margaret Gardner v John Curran – Wick Sheriff Court, 15 July 2008

Wed, 23 Jul 2008 19:33:00 GMT

This case concerned the tenancy of a croft. The Pursuer/ Respondent was the widow of the tenant and the Defender/ Appellant was the Executor Nominate of the landlord of the croft at the time of the tenant’s death. The tenant had left a Will in which he did not make specific reference to the tenancy of the croft but directed that the residue of his estate was to pass to the Pursuer. In terms of s10 the Crofters (Scotland) Act 1993, a crofter could bequeath the tenancy of his croft to a family member. Sections 16 (1) and (2) of the Succession (Sc) Act 1964 also deal with the bequest of a tenant's interest under a Lease. The Pursuer sought a Declarator that the tenancy of the croft had passed to her under the terms of her late husband’s will as part of the residue of his Estate and in accordance with Section 10 of the 1993 Act. She contended that, on a proper construction of the will, the residue clause was effective to pass the tenancy of the croft to her. The Defender maintained that the will did not do so as it contained no specific bequest of the croft to the Pursuer. The Sheriff found in favour of the Pursuer. The Defender argued on appeal that construing the relevant statutory provisions appropriately confirmed that there had to be a specific bequest of the tenancy of the croft to one person and, in the absence of such a specific bequest, the tenancy fell into intestacy. A number of authorities were referred to in support of this argument. In response, the Pursuer argued that the issue was purely one of construction of the deceased’s will in light of the relevant statutory provision - Section 10 (1) of the 1993 Act. The correct approach was to ascertain what the deceased’s intention had been from the terms of the will and, if the Court was satisfied that he had intended to dispose of the tenancy of his croft, to determine whether or not he had succeeded in doing so. The Sheriff Principal agreed with the Pursuer. The question was whether, by the residue clause of his will, the deceased had intended to bequeath, and did bequeath, the residue of his whole Estate, including as it did the tenancy of his croft, to the Pursuer. The Sheriff Principal considered that the Sheriff had reached the correct conclusion and he refused the Appeal.

Tor Corporate A.S. v. Siopect Group Start Petroleum Corporation Ltd and Others For Judicial Review of a Decision of Arbiters 2008 CSIH 9 P1890/06

Thu, 24 Jan 2008 14:39:00 GMT

Reclaiming Motion - Petition for judicial review, the petitioners were seeking to set aside an arbitral award. The dispute which was submitted to arbitration arose out of a contract between the petitioners and the first respondents in terms of which the petitioners were to act as managers of a semi-submersible drilling unit owned by the first respondents. A preliminary issue had arisen as to whether the application for setting aside the award was timeously made. That issue was debated before the Lord Ordinary at a first hearing. It was held that the application had not been timeously made and therefore by interlocutor dated 29 May 2007 dismissed the petition. The petitioners were now seeking review of that interlocutor.