Despite its humdrum title, this case is one of the more unusual legal cases that we can recall locally. It involves bloody-minded crofters, greed, poor legal advice at local level, nasty correspondence, interim interdicts, flawed judicial thinking and highly partisan coverage in what passes for the local press in these islands. It is quite a tale.
HIAL, short for Highlands and Islands Airports Ltd, is a company wholly owned by the Scottish Ministers. It operates 11 airports in Scotland, ranging from Dundee to Sumburgh, Campbeltown to Stornoway. Its opponent in the case was the Combined Committee of Melbost and Branahuie Common Grazings in the Isle of Lewis.
Whatever the wider background, the showdown appears to have accelerated with the intention of HIAL to sell off a surplus part of its land around Stornoway Airport to Calmax Construction Ltd for the purpose of building what is known as social housing. The local crofters did not like this one little bit as they maintained it deprived them of crofting grazing rights on the disputed land and, no doubt, also saw a pot of gold at the end of it.
Following increasingly hostile correspondence from the Combined Committee over the matter, HIAL saw it was getting nowhere and lodged an action for Declarator at the Scottish Land Court. This simply asked the Court to declare that the disputed land belonged to HIAL and that all crofting rights had been extinguished by compulsory purchase during the wartime years and for which the crofters at the time had been compensated.
A simple proposition, one might think, but far from simple when the Scottish Land Court got to work. The Land Court, in the form of the legally qualified Chairman, Lord Minginish, and Agricultural Member, Tom Campbell, turned sound common sense on its head and found in favour of the crofters.
It is impossible to understand the Land Court's reasoning. HIAL was being asked by the Land Court to prove its case by producing to the Court legally irrelevant documents after a period 80 years - and couldn't after such a long period of time - so the decision went against HIAL on that basis! Almost incredibly, the fact that 29 crofters in Melbost, 26 in Branahuie, 14 in Steinish and 46 in North Street Sandwick had been fully compensated during the wartime years for loss of crofting rights had no impact with the Court. The full judgement, issued on 06 February 2019, can be read at SLC 153/17.
After the Land Court decision, the man representing the crofters at the Land Court hearing at Stornoway, Lewis Kermack (who appears to have been a mainland solicitor at one time, although, for some reason or other, no longer a solicitor), proudly boasted through his favourite newshound, Murchadh Spàgach of Hebrides News, that 'we won everything'. Kermack was, however, rather premature in his boasts.
Subsequent to the Land Court's decision, the Combined Committee wrote to HIAL - correspondence almost certainly drafted by someone with a smattering of legal knowledge as a traditional Lewis crofter would never write in such dreadful language - advising HIAL to cease what the Committee termed 'squatting' on the disputed land. HIAL was advised 'to regularise your organisation's position and to remove your organisation from the category of squatter'. This was bizarre conduct on any view and was stopped only by Interim Interdict from the Court of Session. It was an utterly shameful episode.
HIAL applied for a Stated Case to the Court of Session on the Land Court's decision, essentially an appeal. There, in a judgement issued on 28 February 2020, the Court of Session, chaired by the Lord President, Lord Carloway, had no hesitation in overturning the decision of the Land Court to find in favour of HIAL after a long and costly legal process.
It is implicit in his judgement that Lord Carloway found it difficult to fathom how the Land Court arrived at the decision in favour of the crofters when compensation had already been paid 80 years ago and the matter settled once and for all. And so say all of us.
Normally, we would be instinctively on the side of the crofter but this hostile campaign and thoroughly intemperate language were so beyond anything that was even remotely acceptable that we hope we will never see the like of it again. We would like to think that all this occurred through abysmal legal advice although, ultimately, the crofters themselves were responsible for the action pursued.
While we don't really know who was advising whom, the one sure thing we can say is that the crofters concerned were led up the garden path like lambs to the slaughter and the consequent legal expenses must be huge running into tens of thousands of pounds. These islands of ours have no place for those agitating for this kind of conduct and the circumstances serve as a warning to other crofters who might be tempted to seek, or follow, unregulated legal advice.
But, there is a major upside to all this. There hasn't been a cheep from either of those two motormouths, Murchadh or Kermack, since. That, in itself, is worth any amount of land - and a pot of gold to go with it!
NOTE : At appeal at the Court of Session, the Combined Committee was represented by the Edinburgh legal firm of Turcan Connell. Turcan Connell is a highly respected firm of solicitors and no criticism of the firm is either offered or intended. The firm was NOT involved in anything pre-appeal.
It is implicit in his judgement that Lord Carloway found it difficult to fathom how the Land Court arrived at the decision in favour of the crofters when compensation had already been paid 80 years ago and the matter settled once and for all. And so say all of us.
Normally, we would be instinctively on the side of the crofter but this hostile campaign and thoroughly intemperate language were so beyond anything that was even remotely acceptable that we hope we will never see the like of it again. We would like to think that all this occurred through abysmal legal advice although, ultimately, the crofters themselves were responsible for the action pursued.
While we don't really know who was advising whom, the one sure thing we can say is that the crofters concerned were led up the garden path like lambs to the slaughter and the consequent legal expenses must be huge running into tens of thousands of pounds. These islands of ours have no place for those agitating for this kind of conduct and the circumstances serve as a warning to other crofters who might be tempted to seek, or follow, unregulated legal advice.
But, there is a major upside to all this. There hasn't been a cheep from either of those two motormouths, Murchadh or Kermack, since. That, in itself, is worth any amount of land - and a pot of gold to go with it!
NOTE : At appeal at the Court of Session, the Combined Committee was represented by the Edinburgh legal firm of Turcan Connell. Turcan Connell is a highly respected firm of solicitors and no criticism of the firm is either offered or intended. The firm was NOT involved in anything pre-appeal.
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