Keen shot off target as bid to sue laird over lack of grouse fails

A BUSINESSMAN who ploughed more than £500,000 into a Highland grouse moor only to find far fewer birds than he had expected has lost a damages claim against an aristocrat.

Alastair Erskine, a keen shot, was persuaded in 2006 to invest in the moor at Castle Grant, near Grantown-on-Spey.

Mr Erskine, who runs seafood businesses, agreed with the current Earl of Seafield, Ian Derek Francis Ogilvie-Grant, and other trustees of Viscount Reidhaven – owners of the Castle Grant estate – to lease the grouse moor for 15 years.

However, he was disappointed by the small numbers of grouse and went to court to seek damages from the trustees and to have the lease set aside.

The case was pursued in the name of Cramaso, a partnership set up by Mr Erskine and his wife for the venture, and a judge in the Court of Session in Edinburgh ruled against it. That decision was upheld yesterday by three appeal judges.

The court heard that in the early 1970s the grouse moor had provided a substantial bag of grouse, but, like other estates, productivity declined.

By the 1990s, the owners had put in place a recovery programme, with some success. The annual bag had gone up from 196 brace to 300 brace. The trustees decided to offer a 15-year lease of the moor to attract investment.

Mr Erskine showed interest, and understood through an e-mail from Sandy Lewis, chief executive of the trust, that he could estimate the number of birds on the entire moor by counts carried out in ten areas which accounted for only a ninth of the area of the moor.

In the court action, Mr Erskine said he established Cramaso as the vehicle for investment in the moor. The lease had required the tenant to put and keep the moor in good condition, and Cramaso spent more than £530,000.

Lord Hodge, who heard the case, said in his judgment last year: “It was an improving lease in terms of which the tenant had to invest heavily in the early years to improve the moor and could enjoy the benefits of those improvements before returning possession of the improved moor to the landlords on the expiry of the lease.”

It was claimed that Cramaso had been induced to enter into the lease by negligent misrepresentation by Mr Lewis.

Lord Hodge ruled that there had been a material misrepresentation and that Mr Lewis had failed in a duty of care to Mr Erskine. However, the e-mail had been sent on 29 September, 2006, and Cramaso had not been established until 16 November that year.

The judge said Mr Erskine and Cramaso were separate legal persons and while, at the date of the e-mail, Mr Lewis had owed a duty of care to Mr Erskine, he had not owed a duty to Cramaso, which was not in existence when the misrepresentation was made.

“On the law as it stands, this places an insuperable obstacle in the way of Cramaso’s claim,” said Lord Hodge.

Cramaso appealed, but Lord Gill, the Lord Justice-Clerk, sitting with lords Hardie and Marnoch, rejected the appeal.