Legal arms race barrier to Scottish Land Court hearings

The ‘arms race’ to employ ever more senior legal figures to support cases presented at Scottish Land Court hearings means the ability of the court to saddle the unsuccessful party with both sides’ costs is acting as a barrier to justice.

Christopher Nicholson

That was one of the views given in the Scottish government’s recent wide-ranging consultation on the roles of the Scottish Land Court and the Scottish Land Tribunal.

Opinion as to whether the two bodies should be amalgamated was evenly split – with NFU Scotland seeing both sides of the argument.

"Unification is preferable to some, as it represents the potential for shared resource and thus a cost saving. However, NFUS members have concerns about the potential to lose more specialist knowledge that may be applied to issues such as crofting."

Stronger views, however, were expressed on other elements of the consultation – with 83.9 per cent of those who answered believing that the threat of expenses was an ‘access to justice’ issue - especially when the legal representation which the Scottish government could field for rural payment appeals at public expense completely outmatched that available to others.

But the Scottish Tenant Farmers Association warned that the “winner takes all” principle also raised concerns of an imbalance of resources between parties which went beyond cases involving the Scottish government.

“It undoubtedly also acts as a significant barrier to justice for the majority of tenants seeking fair play in a dispute with their landlord, particularly where the dispute is over straight-forward questions regarding farm rent and other valuation issues, such as compensation for improvements,” said the STFA’s chair, Christopher Nicholson.

He said that the STFA believed that addressing the issue of allocation of costs should be extended to cover current arrangements for the resolution of disputes between landlords and tenants as well.

Noting that the Land Court was originally established to protect tenants' rights, he said that it was not the costs of the court itself which acted as a barrier.

“Agricultural law and landlord/tenant disputes have become increasingly complex over the last few decades and consequently both parties have tended to engage specialist legal advice, inevitably leading to an arms race favouring the side with the deepest pocket as litigants’ legal teams tool up with advocates and other expensive technical advisers.

“Not only does the practice of awarding expenses against the loser operate as a barrier to justice in rural payment appeals, but also in landlord/tenant disputes.”

Nicholson said in many landlord/tenant disputes such as rent reviews, individuals often had the necessary experience and expertise to argue the case themselves but were deterred from doing so because of the fear of having landlord’s expenses awarded against them.

He said he hoped the consultation would act as a catalyst for further reforms to the way in which the Land Court operated to make justice ‘more affordable’ and to address any imbalance of power and financial resources.