R Hill & Co brought one arbitration to obtain a decision about goose damage and the failing fabric of a working cattle farm. Other proceedings multiplied around it. The evidence was never heard, and the farm was lost and the question unanswered.
Powhillon had been farmed by generations of the Hill family. For R Hill & Co, agriculture meant producing livestock and good-quality food, maintaining the productive use of the land and contributing to the country's food supply. These were responsibilities understood through generations of farming, not merely obligations expressed in a lease.
By 1994, years of correspondence and reports had documented serious concerns about the condition of Powhillon's buildings, drainage, water supplies, fences and other agricultural infrastructure. The farming business also faced losses attributed to wildfowl whose management had become inseparable from WWT's conservation interests. The affected merse was both productive cattle grazing and wildlife habitat within a designated Site of Special Scientific Interest.
Wildfowl Trust (Holdings) Limited (WWT) had acquired the responsibilities of an agricultural landlord. Those responsibilities existed alongside its conservation objectives. The question was whether its management of Powhillon had breached the agricultural lease and caused losses to the farming business.
The legislation governing agricultural holdings had developed from a recognition that productive farmland was important to the country, not simply to its owners and occupiers. Its statutory procedures provided a means of resolving disputes that affected the continued productive use of agricultural land.
At Powhillon, however, the evidence of the alleged failures was never heard.
WWT first challenged the arbiter's jurisdiction to award damages. John Galloway Marshall accepted that objection, but on 27 March 1995 Sheriff Kenneth Barr reversed him. Barr confirmed that section 60 of the Agricultural Holdings (Scotland) Act 1991 empowered the arbiter to determine breaches of the lease and award the resulting damages.
Marshall subsequently rejected WWT's objections to the £220,800 head within the tenant's damages claim, valued by reference to the estimated cost of remedying defects in Powhillon's fixed equipment, and allowed it to proceed to proof. But when WWT requested another stated case, Marshall agreed to return the dispute to court without first establishing the facts.
On 3 October 1996, Sheriff Michael Fletcher accepted WWT's argument that the £220,800 damages head, valued by reference to remedial costs, would effectively bypass the court procedure for carrying out works to the landlord's property. That was WWT's characterisation of a monetary claim, not the remedy the tenant had requested. Fletcher overturned Marshall's decision to admit that head of claim to proof.
Fletcher's ruling removed a substantial monetary head of alleged agricultural loss before proof. The remaining claims also went unheard. The family ultimately lost possession of Powhillon without the arbitration determining whether WWT had breached its obligations or what losses had resulted.
The failure was not simply that compensation was never awarded. It was that years of documented concerns about a productive agricultural holding never received the substantive examination for which the statutory arbitration had been established.
The decisions of Marshall and Fletcher must be understood in that context. They were made by professionals entrusted with administering a process intended to resolve agricultural disputes. Their legal choices affected whether the experiences of the people farming Powhillon, the condition of its infrastructure and the responsibilities of its conservation landlord would ever be examined and determined.
The farm did not arrive at arbitration because of one quarrel in 1994. The repair problem reached back at least to 1978, while disputes over the management of geese on the farm's productive grazing developed alongside it. Daniel and June Quinn were running Powhillon through R Hill & Co.
The Powhillon lease was granted in 1916 to William Hill Senior and William Hill and expressly provided that the tenancy should vest in the tenant and his heirs. The Powhillon history records the tenancy passing down through the Hill family. After Roland Hill's death, Mrs Janet McKie Hill was treated as his successor; neither daughter took the tenancy, and June's elder sister relinquished the position she might otherwise have claimed. No later Powhillon proceeding traced or adjudicated that succession. WWT's own dealings and the later court and arbitration papers nevertheless proceeded on the basis that Mrs Hill had succeeded to the tenancy.
WWT agreed in 1982 that Mrs Hill could live away from the holding while Daniel and June occupied the farmhouse and ran the farm. R Hill & Co conducted the agricultural business and paid the rent; Mrs Hill did not personally pay it. WWT accepted that arrangement and those payments for years. When it withdrew the residence waiver in June 1993, Mrs Hill was pulled back into the centre of a developing dispute over a farm Daniel and June had been operating for more than a decade.
That course of dealing had legal significance, but it did not produce an adjudicated answer at Powhillon. In Morrison-Low v Paterson 1985 SC (HL) 49, a farm continued to be worked through a partnership and the rent continued to be paid from the partnership account. The House of Lords held that continued possession and the landlord's demand and acceptance of rent could establish an agricultural tenancy from the parties' conduct, even though they had misunderstood the legal basis of the occupation. The source of the payment was not conclusive: rent could be paid by another person on the tenant's behalf.
R Hill & Co's payments therefore did not by themselves establish that the partnership had become tenant, nor did Mrs Hill's absence from the rent payments by itself establish that she had ceased to be tenant. The complete relationship mattered: who occupied and farmed Powhillon, who paid the rent, what WWT had agreed, what it knew and whose performance it accepted. The account from which rent was paid could not, by itself, determine who held the tenancy. The unresolved legal question was whether R Hill & Co was simply paying on Mrs Hill's behalf or whether WWT's accepted course of dealing objectively demonstrated agreement to tenancy rights in the operating business.
The condition and replacement of the older cattle buildings were already being discussed in the 1980s. On 26 March 1986, WWT’s factor D. Rothwell informed R Hill & Co that the old byre and piggery could be demolished and would then be deleted from the lease. He also declined assistance with another 32 acres of drainage.
On 7 March 1988, WWT’s solicitors wrote directly to Daniel about proposed work to the farm. They offered to contribute to specified repairs to existing buildings, subject to estimates, but refused financial assistance and permission for a new shed. They described the new shed as an improvement, maintained that the existing sheds were to be repaired and instructed that no new shed be constructed.
On 8 April 1988 Austins Solicitors wrote again to Daniel at R Hill & Co about rewiring and repointing the farmhouse, ditches, repair materials and farm sheds. WWT maintained that the proposed new shed was unnecessary, said it had agreed to repair an existing shed and proposed an inspection by its estates officer, Dennis Millington. The parties continued to dispute the division and extent of repairs, with the correspondence referring back to August 1978.
Following an inspection of Powhillon’s farm equipment and premises, Health and Safety Executive Agricultural Inspector David G. Wood wrote to Daniel on 17 May 1990. Wood required immediate steps to erect suitable cattle-handling facilities, citing the safety requirements associated with handling more than 80 cattle a year. He separately identified concerns about the structural integrity of other steading buildings, stated that those buildings were the landlord’s responsibility and proposed to discuss them directly with WWT.
In a letter of 14 June 1990 to WWT’s agents G. M. Thomson & Co, R Hill & Co’s representative acknowledged that consent had subsequently been granted for a replacement cattle building, general-purpose building, feed stance, midden and cattle-handling facilities. The letter identified the inadequacy of the old byre and piggery, referred back to Austins’ 1988 refusal of consent and absence of financial assistance, and disputed a suggestion that the entire steading had been “gifted” to the tenant following the HSE inspection.
Daniel Quinn has confirmed that he personally constructed the new cattle shed in 1990, following the HSE intervention and the grant of consent. The 1988 and 1990 correspondence records the disagreement over permission, repair obligations and financial responsibility; consent for new construction did not itself settle the parties’ dispute over WWT’s existing fixed equipment.
By October 1990 the parties were discussing a higher rent and a new lease under which the tenant would carry the future repairing burden. Mrs Hill's solicitor advised that such a lease should be considered only after the landlord had completed "all necessary works and operations to put the Holding into proper tenantable condition at commencement". Five days later WWT's agent made a separate conservation proposal. It recognised March and April as the period when early grass was sought by both the cattle and the geese, asked that there be no scaring from October to February, no application to shoot and no shooters crossing Powhillon to the merse, and offered £500 a year for those "positive conservation measures". The agent expressly said that the payment was not a rent rebate for goose damage.
The need for work was acknowledged more directly in 1992. After walking the farm with Daniel, WWT's agent P. J. Dernie listed the farmhouse, water supply, yard drainage, steading doors, sea-wall breaches, ditches, fences and field drainage. "There has never been any dispute that such matters needed attention," he wrote, while attributing the lack of a repair programme to a separate drainage-grant dispute. Three months later the Quinns' offer to buy Powhillon was refused. WWT's Director General said that a sale would be inconsistent with the Trust's objectives and its reasons for acquiring the farm. In the same letter he acknowledged that WWT would continue to carry legal and financial obligations as agricultural landlord and asked for an outline of the likely expenditure over the next five years.
By 5 March 1993 WWT's counsel, Sir Crispin Agnew, was examining possible routes to termination. He questioned the relationship between Mrs Hill and the family business which, with WWT's knowledge, had been occupying, farming and paying the rent, and asked whether termination under section 24 of the 1991 Act had been considered. He also preferred a joint Land Court application partly because it would avoid the expense of an arbiter and clerk, observing that where law arose an arbiter was more likely to state a case. These were questions in counsel's advice, not decisions against the tenant. They establish that repairs, the effect of the accepted farming arrangement and possible termination were already being considered before the Shooting Trial and before the damages reference.
R Hill & Co was trying to bring the condition of the farm and the goose losses to one decision. WWT was already considering how the tenancy might be terminated. That difference would widen. While the damages claim waited, WWT pursued interdict, jurisdiction objections, a second stated case, possession proceedings and caution. These proceedings raised different legal questions, but they advanced while the agricultural evidence remained unheard and the dispute over possession continued.
The geese and the repairs were not separate problems on the ground. Powhillon's merse provided productive grazing for the cattle while other fields were rested or closed for silage. Increasing concentrations of geese consumed and fouled that grass. WWT's conservation plans sought to reduce disturbance and make the area more attractive to geese; R Hill & Co needed to protect the same land as part of a working cattle farm.
The merse also supported breeding wildlife. R Hill & Co recalls lapwings, curlews and oystercatchers nesting there and family members walking the ground to find and mark their nests before agricultural operations, so that work could proceed without damaging them. The Upper Solway Flats and Marshes SSSI citation, notified in 1988, identified conservation interests across the wider estuary extending beyond wintering geese. The farm’s established practice was to protect nesting birds while producing livestock. The dispute arose over the management of geese and the condition of land serving both purposes; it was not an inherent opposition between farming and wildlife conservation.
Daniel spent years using non-lethal scaring and applying for official permission before deliberately shooting three protected geese on 11 March 1993. WWT wardens reported the shooting and criminal proceedings followed. Daniel did not deny firing the shots. He relied upon the protection in the Wildlife and Countryside Act 1981 for action necessary to prevent serious agricultural damage. On 17 December 1993 he was acquitted in the Goose Shooting Trial.
The acquittal resolved whether Daniel was criminally liable for the shootings. It did not decide who should bear the agricultural loss attributed to the geese, whether WWT had allowed their numbers and concentration to damage the holding, or whether the tenant was entitled to compensation. The same protected birds for which Daniel had faced prosecution therefore became part of the claim that WWT, as agricultural landlord, had failed to control the wildfowl reserved to it under the lease.
The unresolved landlord question entered the Court of Session before the arbitration began. WWT sought interim interdict to prevent Mrs Hill authorising Daniel to use the Government licence issued after his acquittal and to prevent Daniel shooting under it. On 19 January 1994 Lord Johnston refused interim interdict. He recorded that Daniel "was acquitted on the defence under Section 4" and that the Government licence followed on 12 January.
WWT's counsel accepted that a damages claim might be open if the landlord allowed game to increase beyond what the parties to the lease could reasonably have contemplated and crops were damaged. Johnston noted the difficulty of quantifying disruption to the livestock enterprise and the absence of WWT documents recognising the farmer's problem or addressing the financial consequences of its conservation programme. His refusal of interim interdict left the licence undisturbed. It left the compensation question unanswered.
A Scottish Office Solicitor's Office minute of 20 January recorded that the Department's agricultural advisers had consistently supported a licence and were in no doubt that the geese caused serious damage. The criminal prosecution, licensing decision and landlord dispute were therefore addressing different legal questions arising from the same agricultural conditions.
Even after the prosecution and the interdict proceedings, R Hill & Co still sought a practical settlement. On 4 March 1994 Mrs Hill's solicitor reported two proposals discussed with WWT's solicitors and counsel: WWT could buy Daniel out, or WWT could first put Powhillon into a thorough state of repair and grant a new lease under which the tenant would assume the future repairing burden. The proposal also connected the new lease with management of the geese or compensation for allowing them onto the farm. Neither proposal resolved compensation for the alleged past breaches. No settlement followed. Twenty days later Mrs Hill’s solicitors applied for statutory arbitration to obtain a determination.
Connell & Connell applied for an arbiter on behalf of Mrs Janet McKie Hill against Wildfowl Trust (Holdings) Limited. The application followed the position on which WWT and the later formal proceedings operated: Mrs Hill was treated as the successor tenant. It did not determine the legal effect of the arrangement accepted in 1982, under which Daniel and June occupied the farmhouse, R Hill & Co ran the farm and the partnership paid the rent. That unanswered distinction would recur throughout the arbitration, the possession proceedings and the attempt to appoint Marshall's successor.
The statutory reference concerned two connected subjects of alleged breach. The first alleged failure to control game numbers. The second alleged failure, after notice, to put in order the farmhouse, drainage, water supply, fences, sea wall, field drains, ditches, farm buildings and merse.
These were not simply assets belonging to the landlord. They were the physical means by which the holding functioned as a cattle farm. The tenant alleged that grazing by the geese reduced the land available for stock and silage. Buildings, water, fences and drainage governed how the cattle and the remaining land could be managed. The arbitration was to hear the evidence, decide whether WWT had breached its obligations and assess the resulting loss.
In an agricultural tenancy, fixed equipment does not mean the tractors or other movable machinery used by the farmer. It means the enduring physical infrastructure supplied with the holding: the farmhouse, farm buildings, water supply, roads, drains, ditches, dykes, fences, sea wall and similar works. The tenant depended on those facilities, which formed part of WWT’s property; the extent of WWT’s repairing obligations was disputed.
The fixed-equipment claim therefore went directly to WWT's management of an agricultural holding. Through section 85 of the 1991 Act, the statutory Rules of Good Estate Management asked whether an owner's management was reasonably adequate to enable a reasonably skilled occupier to maintain efficient agricultural production. They expressly directed attention to the owner's responsibilities for the provision, improvement, replacement and renewal of fixed equipment so far as necessary to enable that production.
At Powhillon that meant the buildings, water supply, drains, ditches, roads, dykes, fences, sea wall and other structures upon which the cattle enterprise depended. The fact that those assets belonged to WWT did not make their agricultural function irrelevant to the tenant. WWT’s ownership did not itself determine the extent of its repairing obligations; the condition of those facilities affected what the tenant could produce from the holding.
Good husbandry was the corresponding standard applied to the occupier. It required efficient farming and the maintenance and repair for which the occupier was responsible. It did not, by itself, transfer to the tenant any fixed-equipment obligation which belonged to the landlord under the lease. WWT later relied upon good husbandry when seeking to terminate the tenancy, making the unresolved allegation that its own management had prevented efficient farming directly material to the possession proceedings.
The Powhillon lease dated from 1916. The fuller statutory undertaking in section 5 of the 1991 Act—requiring a landlord to provide fixed equipment capable of supporting efficient production and to replace or renew it after natural decay or fair wear—applied only to leases entered into on or after 1 November 1948. The precise extent of WWT's enforceable obligation therefore turned upon the older lease and the common law. That question became the subject of the second stated case.
Section 60 of the Agricultural Holdings (Scotland) Act 1991 required qualifying landlord-and-tenant questions to be determined by arbitration. A referral to the Scottish Land Court instead required a joint application by landlord and tenant.
On 25 April 1994 the Secretary of State appointed John Galloway Marshall under section 61 and Schedule 7. Marshall was a member of the Scottish Agricultural Arbiters and Valuers Association. He accepted the statutory appointment, under which he was to determine the referred dispute and issue an award.
Under paragraph 8 of Schedule 7, Marshall was required to make and sign his award within three months of appointment. The provision also allowed a longer period agreed in writing by the parties or fixed by the Secretary of State, before or after the original period had expired.
The condition of the holding was not merely a list in a legal claim. Three days after Marshall's appointment, two Scottish Office veterinary officers inspected the cattle. Veterinary Officer Robert G. H. Smith told Daniel that there were more cattle than could be managed through winter "with the available buildings" and recorded newly calved cows and young calves crossing deep mud between silage and dry pasture. He also required Daniel to improve supplementary feeding and address uncastrated young stock. The same record therefore identified both the constraint imposed by the available facilities and the husbandry action required from the person caring for the herd. Daniel had by then already constructed the new cattle shed in 1990 following the HSE intervention; Smith's assessment concerned the facilities available to manage the cattle at the time of his 1994 inspection.
On 7 October 1994 Scottish Office agricultural officer John M. Riddet recorded widespread dilapidation, failed drainage and sea-wall outlets and a need for major refurbishment. The report also records substantial sums invested by Daniel in drainage works, physical and economic goose damage and a strong agricultural justification for intervention before predictable spring damage. The two principal heads of the reference—fixed equipment and wildfowl damage—were present in the same official agricultural assessment.
The disrepair extended to the farmhouse. In January and February 1995, while the arbitration was pending, three contractor records were addressed to or received by WWT's agent. Richardson & Starling found wet rot in joists, wall plates and framing, woodboring insects in ground-floor timbers and rising damp through the property. James Gibson priced roof, sarking, felt, leadwork, chimney and rainwater repairs at £9,020 plus VAT. Robert Jackson & Sons priced further repairs at £3,091 excluding VAT and recorded that the front of the main house was bulging and cracked.
Those three contractor records concerned the farmhouse, not a survey of all the farm buildings, drainage, fences and water systems included in the arbitration. Separate agricultural evidence, including Riddet's assessment, addressed the wider condition of Powhillon. Both bodies of evidence concerned existing facilities and their deterioration, but their scope was different.
Before hearing the facts, WWT argued that Marshall had no jurisdiction to award damages for breach of the lease. Marshall accepted that argument. Mrs Hill required him to state a case for the opinion of the Sheriff.
Before Barr, WWT's counsel relied upon paragraph 613 of Lord Gill's second edition, published in 1990. Gill stated that an agricultural arbiter could not pronounce a decree ad factum praestandum—an order compelling performance—and tentatively suggested that a particular statutory damages remedy available to a landlord under the 1949 Act had to be pursued in court. WWT relied upon that discussion in support of restricting Marshall's jurisdiction.
On 27 March 1995 Sheriff K. G. Barr rejected the wider restriction WWT sought to derive from it. Barr invoked an earlier judicial description of the statutory reference as one that "could hardly have been more comprehensively phrased". There could not be a more complete reference than "any question or difference" between landlord and tenant falling within the statutory provision. The statutory jurisdiction was not restricted by common-law rules governing an ordinary contractual arbitration. Marshall's remit included deciding whether WWT had breached the lease and determining the amount of damages or compensation arising from that breach.
Barr also rejected the proposed division under which the arbiter would determine breach and the court would assess damages. He described that result as unfortunate and warned of misunderstanding and duplicated evidence. His reported judgment expressly identified the tenant's alleged need to incur expenditure remedying Powhillon's defects, alongside other losses arising from them. Barr did not decide whether the estimated remedial costs would ultimately be recoverable; he decided that the statutory arbiter could determine the contractual damages dispute of which they formed part. The case returned to Marshall with both breach and damages within his remit. The evidence still had not been heard.
WWT next sought dismissal of parts of the claim. It argued that wild geese were not "game" under section 52 of the 1991 Act and that the claim for goose damage could not proceed.
Marshall rejected that attempt. The Powhillon lease reserved to the landlord "deer, wild fowl and wild animals of every kind". The claim therefore did not depend solely upon the statutory meaning of game.
The tenant's case was that WWT had acquired an agricultural holding and was obliged to keep it capable of agricultural use. If goose numbers were damaging the holding, WWT could have sought a licence or authorised the tenant to do so. Marshall recorded the tenant's submission that WWT had made no attempt to reduce the geese because it was a conservation body, to the tenant's detriment.
Two months before Marshall's decision, a Scottish Office memorandum of 25 April 1995 had expressly referred to the Quinn case. J. N. Randall recorded WWT's argument that participation in a goose-management scheme could be a satisfactory alternative to shooting protected geese. He also recorded the view of Scottish Office and Department of the Environment officials that WWT's interpretation of the Birds Directive was “perverse”. They distinguished the prevention of serious crop damage from compensating farmers for allowing damage to occur. In their explanation, the requirement for “no other satisfactory solution” concerned the proper consideration of alternatives, including non-lethal scaring, before killing protected birds.
Randall was addressing wildlife licensing, not deciding the tenant's claim against WWT. The distinction nevertheless mattered to the dispute over Powhillon: payment to tolerate geese was not itself prevention of damage to productive grazing, nor did it determine the losses claimed under the lease. Whether WWT bore responsibility for goose damage to the holding, alongside the alleged failures to maintain its fixed equipment, remained for the arbiter to determine on evidence.
Those questions depended upon evidence: the lease, the condition of the farm, the growth in goose numbers, the actions available to WWT and the loss suffered by the tenant. Marshall ordered 'proof before answer'. The facts were to be heard before the remaining legal questions were finally answered.
On 21 September 1995 WWT asked Marshall to state a second case to the Sheriff. Marshall agreed. The factual hearing was postponed while the meaning of the lease and the remedy for the defective fixed equipment returned to court.
Mrs Hill's solicitor objected before the case left Marshall. In a letter of 18 October 1995 D. G. Rennie recorded that Marshall had decided to state the case without first obtaining the tenant's views. Rennie asked him to establish the facts before sending further legal questions to the Sheriff, so that any opinion would be applied to facts the arbiter had found proved. He called the second stated case premature and asked Marshall to inspect Powhillon in the early morning, when the goose depredations were at their worst. Marshall proceeded with the stated case. The facts remained unheard.
Clause III of the lease excluded a claim for damage arising from later defects unless the tenant had identified them in writing, asked the landlord to put them in order and the landlord had failed without sufficient cause within a reasonable time. Before Sheriff Michael Fletcher, WWT accepted that this wording implied an obligation to repair notified defects and could support a claim for consequential loss. It denied any obligation to renew or replace buildings and drains worn out by natural decay or fair wear.
Specific implement is the Scots-law remedy which orders a party to perform the obligation it has undertaken. Here, an order of specific implement would have required WWT itself to carry out the necessary work to its buildings and other fixed equipment. That is different from an award of damages: money intended to compensate for loss already caused by a failure to perform.
WWT's counsel relied upon paragraph 613 of Lord Gill's text, which stated that an agricultural arbiter could not order specific implement. That legal limit was not disputed. But the tenant had claimed damages for alleged breaches of the lease, with part of the claimed loss measured by the estimated cost of remedying defective fixed equipment. The inability to order work did not, of itself, decide whether that estimate could lawfully measure financial loss.
The tenant also disputed the boundary WWT drew between repair and renewal. Replacing defective roof components, for example, can be part of repairing a building without necessarily amounting to renewal of the whole building. Nor did the fact that equipment had become unusable establish whether ordinary ageing alone, or defects left without repair after notice, had brought it to that condition. Those questions mattered to the alleged breaches of clause III.
On 3 October 1996 Fletcher answered the first stated question in WWT's favour. The question referred to field drainage and buildings described as worn out through natural decay or fair wear and tear. Fletcher held that the implied obligation to repair notified defects under the 1916 lease did not extend to renewing or replacing those items. He relied in part on the lease's different treatment of repairing buildings and renewing or rebuilding dykes and fences. That was his interpretation of the contractual obligation; no proof had established what caused each item at Powhillon to deteriorate, whether earlier repair could have prevented further damage, or how much of the work claimed was repair rather than renewal.
Within Statement 4 of the tenant's Statement of Case, £220,800 was separately itemised as the estimated cost of remedying defects in the buildings, cottages, drainage, water supply, farm roads, dykes and fences. It was one head within the damages claimed for WWT's alleged breaches of the agricultural lease, alongside other claimed losses. The estimated cost was advanced as a measure of the loss said to have resulted from WWT's failures, not as an application for authority to carry out a programme of works.
The tenant's counsel argued that WWT's alleged breaches had already caused loss, although the remedial work had not been undertaken, and that the reasonable estimated cost could be used to quantify damages. She relied on Caledonian Property Group Ltd v Queensferry Property Group Ltd (1992 SLT 738), in which a claim for estimated capital loss was allowed to proceed to proof although its final value had not crystallised through a property resale. Her point was that the absence of completed work did not itself make the alleged loss premature or incapable of proof. Section 60 required the lease dispute to be determined by arbitration. Mrs Hill was not asking Marshall to order WWT to undertake repairs or to grant her permission to alter WWT's property.
WWT had changed the form of its objection since the hearing before Barr. In 1995 it had argued that Marshall lacked jurisdiction to award damages for breach of the lease. Before Fletcher it accepted that Marshall could award consequential damages, such as loss arising from the inability to use a building, but sought to place the separately itemised £220,800 outside that damages jurisdiction. Although the tenant had pleaded it as damages measured by estimated repair costs, WWT argued that it was really a claim for the cost of carrying out the landlord's obligations herself, without an order for specific implement or court supervision of works to buildings WWT owned. Its counsel called this specific implement “by the back door”. The tenant had separately quantified the sum; it was WWT that sought to give that head a different legal character, as a remedy the arbiter could not grant.
Fletcher accepted WWT's characterisation. He distinguished Caledonian on the ground that the claimant there owned the property, whereas the buildings at Powhillon belonged to WWT. He reasoned that ownership required court supervision before a tenant could undertake work at the landlord's expense. Yet an award of money would not itself compel WWT to repair its buildings or authorise Mrs Hill to alter them. The tenant's own contractual interest in having the repairing obligation performed was distinct from ownership of the buildings. Fletcher treated the proposed measure of damages as requiring the procedure for specific implement, without finding that Mrs Hill had intended to undertake the works.
Fletcher considered that an action for specific implement in the Sheriff Court, with disputed facts remitted to arbitration and any works supervised by the court, provided “an essential safeguard” for the landlord's property. That route addressed the performance of works. The tenant had sought an award of damages. By treating the estimated remedial costs as requiring the procedure for specific implement, Fletcher prevented that monetary head of claim from reaching proof.
He illustrated his concern by imagining a tenant erecting an avant-garde agricultural building which might not suit a future occupier. Fletcher acknowledged that the actual claim referred to a general-purpose shed. He did not find that the shed was unsuitable or that the £220,800 estimate was inflated. The condition of the buildings and the financial loss claimed had not been tested at proof.
The two questions Fletcher answered had different reach. The first concerned whether the lease obliged WWT to renew or replace the specified field drainage and buildings described as worn out through natural decay or fair wear and tear. The second concerned the whole £220,800 head of damages, which also valued alleged defects in cottages, sewage systems, water pipes and fittings, ditches, farm roads, dykes and fences. By excluding that entire monetary head, Fletcher went beyond deciding whether particular worn-out drains and buildings required renewal: the estimated costs associated with the other alleged defects were also removed from proof. No evidence had established which defects resulted from ordinary ageing and which, if any, followed from notified disrepair left unattended.
Fletcher's written judgment did not refer to Barr's earlier decision in the same arbitration. Barr had expressly recognised anticipated remedial expenditure as part of the underlying damages claim when confirming Marshall's power to determine contractual damages. Barr had not decided whether the £220,800 measure of loss was ultimately recoverable, but its separate itemisation had not made it a separate application for specific implement. Fletcher did not explain how accepting WWT's reclassification of that monetary head fitted with the statutory damages jurisdiction Barr had confirmed. The result was to remove it from proof.
WWT also argued that the claim lacked sufficient particulars. Fletcher indicated that he would have rejected that objection, because the supporting correspondence gave adequate notice for agricultural arbitration. He did not direct the land agent to revise the figure, nor did he find the estimate excessive. He excluded the head of claim because of its legal character as he understood it, not because the evidence of its amount was insufficient.
In Steel Aviation Services Ltd v Allan & Son Ltd (1996 GWD 28-1699), a claimant sought damages for alleged breach of a contract involving work on land it did not own. The decision, as later described by the Scottish Law Commission, held that the claimant had averred sufficient interest as a subtenant or licensee to sue for its own loss. Ownership had not prevented the action from passing that preliminary hurdle; whether the contractual breach and resulting loss could be proved remained a separate question. At Powhillon, Marshall had likewise allowed the tenant's monetary claim to proceed to proof. Fletcher reversed that decision, treating WWT's ownership of the buildings and the safeguards for works to them as decisive against the £220,800 damages head as framed. In its later 1999 discussion of contractual remedies, the Scottish Law Commission cited Steel Aviation when explaining that a contracting party can suffer its own loss from failure to perform work on property it does not own.
In Jamieson v Jamieson 1952 SC (HL) 44, the House of Lords articulated the Scottish principle that a claim should not be dismissed as irrelevant unless it would necessarily fail even if its factual allegations were proved. Fletcher was answering a stated case, rather than applying that test in an ordinary action on the pleadings. Nevertheless, his legal ruling prevented this damages head from being tested through evidence of breach, causation and loss.
The £220,800 head was excluded before Marshall heard evidence. The tenant's other claims for consequential damage remained, but the substantive proof never took place.
For R Hill & Co, buildings, drainage, water supplies and fences were the means of running a working cattle farm, not simply assets belonging to WWT. The tenant's case was that WWT had acquired the holding for conservation purposes and allowed its agricultural fabric to deteriorate while it remained responsible for repairs required by the lease. Whether that had occurred, and what loss it had caused to the people farming Powhillon, had still not been established through evidence.
The ownership of the buildings did not answer those questions. Nor did Fletcher's interpretation of the obligation to renew equipment worn out by natural decay establish whether repairable defects had been left unattended after notice. The agricultural conditions recorded in the documents remained to be examined, while WWT's proceedings concerning possession advanced.
Lord Gill's third edition of 'The Law of Agricultural Holdings in Scotland' was published on 1 August 1997, after both Powhillon decisions. His revised account cited Barr's Hill v Wildfowl Trust (Holdings) Ltd 1996 S.L.T. (Sh.Ct.) 46 at pp. 48—49 judgment for the proposition that the breadth of section 60 gave an arbiter jurisdiction to award damages for breach of the lease. Gill continued to distinguish damages from specific implement, but his revised treatment did not present Fletcher's later decision as limiting Barr or classify restoration-cost damages as specific implement.
WWT was meanwhile pursuing proceedings capable of ending the tenancy. On 12 October 1994 it served one Notice to Quit in the interests of "sound management of the Estate" and another in the interests of "good husbandry". The landlord was relying upon the standard of farming and management at the same time as the tenant was seeking a decision on whether WWT's own failures had deprived the farm of the land and fixed equipment needed to meet that standard.
Mrs Hill's solicitor addressed the overlap in a letter dated 17 September 1996. He described the landlord's alleged breaches and the resulting loss as the real issue. The damages arbitration, Notice to Quit arbitration and Land Court proceedings all depended substantially upon the same factual question: had failures by the landlord prevented Powhillon from being farmed as required?
His advice was that possession should not be decided before damages. If the alleged landlord failures had caused the agricultural and financial condition being used against the tenant, responsibility had to be determined before the consequences were used to end the tenancy. The damages proof still did not take place.
Fletcher's October 1996 ruling placed WWT's ownership of Powhillon's buildings at the centre of his decision. Mrs Hill had sought damages, not permission to undertake repairs. Fletcher nevertheless regarded court supervision as “an essential safeguard” against the possibility that a tenant might carry out unsuitable works at the landlord's expense. On that reasoning, he excluded the separately itemised £220,800 damages head before proof.
Five months later, Procurator Fiscal David Howdle petitioned Fletcher for authority to enter Powhillon, remove the entire herd and permit veterinary surgeons to destroy, slaughter or sell the cattle as they considered appropriate. Howdle had previously brought the 1993 goose-shooting complaint against Daniel Quinn.
On 20 March 1997 Fletcher heard the Depute Procurator Fiscal and Daniel in reply, then “grants warrant as craved”. The interlocutor recorded no finding about ownership of the cattle and gave no reasons for authorising removal of the whole herd and its possible permanent disposal before trial. The petition alleged animal-welfare concerns, but Fletcher's written order did not explain why powers of that breadth were necessary.
Animal-welfare allegations may require urgent action under different legal powers. The contrast nevertheless lies in what Fletcher authorised: in October he excluded a monetary damages head in response to the possibility of unsupervised works on WWT's buildings; in March he permitted the actual removal and possible permanent disposal of the working herd before the allegations were tried. The buildings remained at Powhillon. The herd was removed.
Fletcher’s March interlocutor did not identify the substantive source of the power exercised. Section 134 of the Criminal Procedure (Scotland) Act 1995 permitted an application by petition for a warrant, including where a court otherwise had power to grant one. That procedural provision did not, by itself, establish substantive authority to remove and permanently dispose of cattle before trial. The separate question is what statutory or common-law power justified this particular order, and what material supported its scope.
Twenty years later, Lord Turnbull described Howdle’s petition as being “at common law” and Fletcher’s warrant as “ex facie valid”. That description did not identify, in the passage examined here, the precise rule empowering the removal and possible permanent disposal of the herd before conviction. Nor does an interlocutor without reasons establish that the sheriff failed to consider evidence. The scope of the claimed power, the animal-welfare material and the consequences for the owner and the agricultural business require examination on their own legal terms, as developed in the Cattle Stolen account.
The cattle were removed from 21 March 1997. Marshall still had not heard the damages proof. The removal changed the circumstances in which the damages and possession proceedings continued: Powhillon no longer had its working herd, its cattle enterprise could not continue as before, and its prospects of earning livestock income were impaired.
Agricultural officer A. J. Robertson inspected Powhillon after the removal. His report of 26 May 1997 recorded severe goose damage, a substantial reduction in carrying capacity, unsafe or dilapidated buildings, fencing failures and drainage problems. He wrote that these conditions "will have contributed to some of the welfare problems" for which Daniel was being prosecuted.
The effect upon the designated habitat also appeared in the agricultural record. After the April 1997 inspection, John M. Riddet’s report of 11 July 1997 expressed concern that the botanical interest of the merse had been severely damaged. Riddet acknowledged that he was not a botanist; his observation raised a concern about vegetation rather than measuring changes in breeding-bird populations. It added to the documented conditions affecting the agricultural holding while responsibility for the alleged losses remained undecided.
Those were the same categories of condition the 1994 reference had placed before Marshall. Responsibility remained undecided while their consequences continued to accumulate.
The removal did not return the arbitration to its evidence. At a further stated-case hearing on 18 July 1997, Mrs Hill was elderly, in poor health and unable to conduct the proceeding herself. Daniel produced her mandate and asked to speak for her because he had been unable to secure a solicitor with suitable agricultural expertise. Fletcher held that Daniel had no right of audience because Mrs Hill was the party named as tenant in the reference and Daniel was neither a solicitor nor an advocate.
Fletcher went further. He said that even if he had discretion, he regarded Daniel as unsuitable because of Daniel's "much wider agenda" concerning Powhillon. Fletcher gave as an example Daniel's intention to call him as a witness in the pending animal-welfare case. Daniel's reason was that Fletcher's earlier repair-and-renewal judgment had hindered the development of the farm and had contributed to the conditions in which the cattle were kept. Fletcher used Daniel's attempt to make that connection as part of his reason for excluding him.
The hearing was adjourned. When it returned on 16 September, WWT had counsel. A solicitor attended after being contacted that morning but had no instructions from Mrs Hill and could not conduct her case. Fletcher answered the stated-case questions in WWT's favour for want of insistence or opposition. He recorded "some doubt" about deciding the third question without argument, but did so. The tenant did not lose that stage after the two positions were heard. Her position was not heard.
When Daniel was sentenced in December 1997, the damages arbitration remained incomplete. His solicitor placed the buildings, fencing, sea wall, drainage, goose damage and pending landlord claim before the criminal court. In his report to the High Court, Temporary Sheriff Jamie Gilmour said that WWT might not have discharged its obligations to maintain the farm buildings and that Mrs Hill might have a legitimate claim. He did not decide it. That question, he said, was not for the criminal court. Daniel's own duties to the cattle remained and he was sentenced on that basis.
The separation had a practical consequence. The criminal process imposed responsibility upon Daniel without deciding WWT's responsibility for the physical holding. That second question remained with Marshall, where it had already waited since 1994. The herd had been removed before conviction under a warrant that permitted its sale or destruction. The forum said to hold the landlord question still did not hear it.
By June 1998 a five-day hearing had been fixed for August. Marshall's clerk recorded that earlier dates had been lost because counsel for WWT was unavailable. On 30 June he asked Pentland House to extend the award deadline to 30 September 1998; Sharon Reid granted that extension on 7 July.
The remaining claim was substantial. Sir Crispin Agnew QC, appearing for WWT, said the proof would require at least ten days. Witnesses would address Barnacle geese, damage at Powhillon and conditions on neighbouring farms. WWT's evidence alone was expected to occupy five to seven days. After more than four years, a hearing had been arranged, although the parties disagreed about how long the proof would require.
On 6 July 1998, before the proof began, WWT lodged a motion seeking an order for £10,000 caution for expenses within fourteen days. Caution would secure a possible future award of legal costs. If ordered and not found, it could prevent the claim from proceeding.
WWT relied upon Powhillon having no stock, no operating agricultural enterprise and no revenue or profit. It relied upon removal proceedings and Daniel's lack of farm income. The motion described the condition of the farm in July 1998. It did not record within that account that the absence of cattle began with the March 1997 warrant or that landlord responsibility for the farm's condition was still waiting to be heard.
The herd had been removed while the damages claim remained unresolved. WWT then relied on the absence of cattle and the reported loss of farm income in seeking caution, a financial condition that could prevent the claim reaching proof.
The arranged proof did not begin. Marshall heard the caution motion instead. After hearing counsel, he wrote: "I find that I am unable to reach a decision on this point."
Marshall proposed another stated case, asking the Sheriff whether he had power to order caution, whether the facts justified it and whether £10,000 was appropriate. WWT relied upon Mrs Hill's means, rent arrears, the loss of the agricultural enterprise and the expense of proof. The tenant argued that poverty should not close the statutory forum and asked Marshall to proceed to the evidence.
The promised decision did not arrive. On 23 September Mrs Hill's solicitor, Matthew Pumphrey, recorded that the parties had agreed two weeks was a reasonable period for Marshall's decision. A month after that period expired, he had received none. Until caution was decided, he wrote, nothing could happen in the damages claim.
Pumphrey had told the hearing that after all those years "not one single substantive issue has been given a hearing let alone decided". He recorded that Sir Crispin Agnew responded by blaming Daniel, alleging that he had abused the arbitration procedure. Yet WWT had itself challenged the arbiter's jurisdiction to award damages, requested a second stated case before the evidence was heard, and now brought a motion for caution which displaced the scheduled proof. Agnew made that accusation while WWT’s caution motion had displaced the scheduled hearing of the substantive claims.
Marshall never made a final caution order. On 6 October 1998 his clerk confirmed that the proof had been displaced by the motion and that Marshall had not decided it. On 30 March 1999 the caution issue was still unresolved and the proposed stated case had not been lodged.
The legal effect of the 1982 arrangement remained unresolved as possession advanced. On 1 March 1999 the farm's accountants recorded their understanding that Mrs Hill had "resigned as Tenant in 1982 and became a Loan Creditor". The letter did not identify the legal instrument by which the tenancy had passed, name a successor or itself effect a transfer. The arbitral and court proceedings continued to treat Mrs Hill as tenant while R Hill & Co continued to be the business whose agricultural operation, home and cattle were affected.
On 11 June 1999 Scott & Co served a Final Notice of Ejection. Mrs Hill, her family, sub-tenants, cotters and dependants were to be "removed and ejected" from Powhillon at 11 a.m. on 15 June. The warrant permitted forced entry.
The ejection took place. The damages arbitration did not end with it. On 2 July 1999 Marshall's clerk reported that the two arbitration references were regarded by all parties as inextricably linked, that WWT's caution motion had displaced the August 1998 hearing and that the stated case was still being prepared.
The people and business farming Powhillon had been removed before Marshall determined whether WWT's alleged breaches had contributed to the conditions and losses used against the tenancy.
The 1991 Act required Marshall to make and sign his award within three months of appointment. Pentland House repeatedly extended that period following requests submitted on Marshall's behalf by his clerk, Norman Johnston. The reasons changed as the arbitration stalled. In March and June 1998 Johnston reported that the hearing could not proceed because WWT's counsel was unavailable. When a five-day proof was arranged for August, WWT's motion for £10,000 caution displaced it. Marshall said he could not decide the motion and chose to prepare another stated case for the Sheriff's opinion. Johnston continued requesting extensions on Marshall's behalf while that process remained unresolved and the substantive claims went unheard.
In May 2000 the Scottish Law Commission published its Report on Jurisdictions under the Agricultural Holdings (Scotland) Acts. Using figures supplied by the Scottish Executive Rural Affairs Department, it reported that "the great majority of appointments are not pursued to a conclusion". In its examination of delay it cited Hill v Wildfowl Trust (Holdings) Ltd, tracing the preliminary proceedings from Marshall's appointment in April 1994 to Fletcher's decision in October 1996. The Commission had identified Powhillon as an example of delay while its underlying claims still awaited proof. Pentland House continued to grant extensions; the last recorded award deadline was 31 March 2001.
The Department had described its role in March 1998 as confined to appointing arbiters and fixing extensions, without intervening in the disputes themselves. In December 2003 David Milne explained that the Department calculated arbiters' fees when awards were completed and that parties were not required to notify it when proceedings concluded or were withdrawn. He confirmed that it had received no correspondence on the case since the last extension and had learned of Marshall's death only when informed in 2003. The Department had repeatedly extended the time for an award but had received no further account of the arbitration after its final recorded deadline expired.
In a letter dated 7 May 2004, Marshall's former firm described the arbitrations as "dormant" following WWT's motion for caution. They had not been withdrawn or decided, and the files were available for a successor.
On 8 June 2004 the Scottish Ministers appointed Alan Forrest Nisbet. The first appointment identified R Hill & Co as tenant. On 27 August the Department replaced that designation with Mrs Janet McKie Hill. Neither administrative appointment adjudicated the succession following Roland Hill's death or the legal effect of the arrangement operating since 1982. On 30 August Nisbet asked what issues remained outstanding so that he could assess what was required to finish the arbitration.
Gillespie Gifford & Brown had advised Mrs Hill in 1996 that the landlord's alleged breaches and the resulting loss were the real issue and that possession should not be decided first. On 9 January 1998 the firm told the Law Society of Scotland that the relevant work had been carried out for Mrs Hill, not Daniel.
By 22 October 2004 GGB was acting for WWT in the replacement-arbiter proceedings and asking whether Mrs Hill had lodged her Statement of Case in time. Shaun Quinn raised the earlier retainer. The firm investigated and acknowledged that its former partner K. A. Ross had opened a file and given advice to Mrs Hill and/or the Quinns. The old file could not be found. The solicitor then acting for WWT said that he did not personally know the earlier advice or possess information he regarded as confidential, concluded that he could see no conflict and continued for WWT.
WWT meanwhile petitioned for judicial review of Nisbet's appointment. The legal dispute moved away from the condition of Powhillon again. It now concerned whether the replacement arbiter had been appointed lawfully and could continue from where Marshall had stopped.
On 31 March 2005 Sheriff Kenneth Barr appointed a clerk to Nisbet after hearing the parties' procurators. Four days later GGB explained what the interlocutor did not disclose: its solicitor had been instructed to appear for WWT but had told Barr that she also represented Mrs Hill, although Mrs Hill had given the firm no instructions. GGB claimed that the solicitor realised the mistake only after the decision, when Shaun addressed the Sheriff, and apologised to Shaun and Mrs Hill. Barr had made the appointment after being told that the solicitor also appeared for Mrs Hill. GGB’s subsequent explanation acknowledged that it had no instructions from her, a defect not apparent on the face of the interlocutor.
The issue continued. In July 2005 GGB stated that it acted for WWT in all matters associated with Powhillon and invited its former client Mrs Hill to join WWT in telling the Scottish Executive that Nisbet had been wrongfully appointed and should cease acting. The letter advised her to obtain independent legal advice. GGB then wrote again in August to ask whether she wished Nisbet recalled.
The Scottish Executive defended continuity. Its position was that Nisbet inherited the original appointment's start date, powers and jurisdiction and could take up the same unresolved reference. On 4 November 2005 Gerry Selkirk described the arbitration as "currently under suspension".
On 27 January 2006 Scottish Executive solicitor Laurence Sullivan wrote that the Ministers' decision to appoint Nisbet had been justified and within their powers. Referring to the merits of the judicial-review action against that appointment, he stated: "our position is unassailable".
The Executive was nevertheless seeking agreement to reduce the appointment. Sullivan said that decision was "wholly founded on economic reasons": the Ministers wished to avoid further expense to public funds and further use of court time. He also wrote that the Ministers had no power under the 1991 Act to revoke an arbiter's appointment and that only the parties to the arbitration could agree to revoke it.
Mrs Hill did not ratify the application made for a replacement arbiter, as the Executive later recorded in July 2006. Yet on 16 February 2006 Lady Smith reduced Nisbet's appointment on WWT’s motion and by consent in the judicial-review proceedings. Her interlocutor disposed of the appointment and expenses in the judicial review. It did not decide the goose damage, the landlord's alleged repair failures or any loss claimed in 1994.
The Scottish Government later treated the reduction of Nisbet's appointment as having ended the arbitration. Its complaints report said that any remaining dispute should be taken to the Scottish Land Court unless both parties agreed to voluntary arbitration.
On 11 July 2008 David Brew put the distinction in writing. The only course he could identify was to refer "the original dispute"—as opposed to "the arbitration"—to the Land Court.
The alleged breaches and resulting loss remained undetermined. The Scottish Government’s position was that the original arbitration had ended and any further determination required a different route. By then the cattle had been removed for eleven years and the family had been ejected from Powhillon for nine.
No substantive evidential proof resolved the damages claim. The £220,800 head was excluded on a preliminary legal ruling, while the other damages claims remained unheard. WWT’s challenge to the goose claim had not ended that part of the reference: Marshall allowed it to proceed to proof. Nor did a final caution order end the hearing; Marshall made no such order.
Marshall had jurisdiction. Sheriff Barr had told him how comprehensively Parliament had conferred it. Marshall had the parties' cases, the power to hear evidence and a surviving claim ordered to proof. He did not determine it.
While that question remained unanswered, the herd was removed, the absence of stock became part of the argument for caution, the proof was displaced and the tenant was ejected. The Scottish Ministers appointed a replacement arbiter and defended that appointment as lawful, before agreeing to its reduction in court. The underlying agricultural evidence remained unheard.
The agricultural claims remained unanswered. The family had lost the farm, and the cattle were already gone.
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