Chair of the Land Court
The Scottish Land Court is a court of law, its jurisdiction set firmly within the context of Scottish farming and crofting. The Court is based in Edinburgh, but holds hearings throughout Scotland, going on circuit to some of the most remote parts of the country. Its decisions have the same standing as those of the Outer House of the Court of Session.
The Court’s jurisdiction has expanded significantly since it was constituted in 1912, when it was restricted to disputes between landlords and tenants of crofts and small landholdings. The Small Landholders and Agricultural Holdings (Scotland) Act 1931 increased the jurisdiction of the Court to determine disputes arising out of every type of agricultural tenancy, irrespective of the size or location of the holding. The Crofters (Scotland) Act 1955 brought within the Court’s jurisdiction all landholders’ holdings in the crofting counties. The Agricultural Holdings (Scotland) Acts 1991 and 2003 consolidated and amended the previous acts, conferring on the Court wide jurisdiction to deal with disputes about agricultural holdings. More recently, the Scottish Parliament has conferred on the Court jurisdiction in respect of appeals against penalties imposed by the Scottish Government on farmers and crofters under the agricultural subsidies regulations in force from time to time as well as environmental jurisdictions under the Nature Conservation (Scotland) Act 2004 and the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015. The Court, however, has no jurisdiction to deal with wider questions such as disputes over ownership of land, or disputes between owners of adjoining land as to boundaries or rights over each other’s land, although it does have power to deal with disputes between Crofters on these matters. You will find examples of the types of dispute dealt with by the Court on the Jurisdiction page of the Land Court website [Jurisdiction [About: The Scottish Land Court]
The Court comprises a Chair, who has the same rank and tenure as a Court of Session judge, two legally qualified members and two agricultural or practical members who are experienced in farming and crofting matters. The current Chair of the Court is Lord Duthie. It is a statutory requirement that at least one member of the Court is a Gaelic speaking member.
The Court receives applications from a party (or parties) involved in a dispute; issues orders guiding and controlling the proceedings; holds case management hearings as required; conducts substantive hearings to take evidence and hear the arguments of the parties to the dispute; and issues written decisions. The Court may decide that a case is suitable to be dealt with by one or more of the practical members, in which case it will delegate the case to that member, sitting as a Divisional Court. The Member will then decide the case with the assistance of the Principal Clerk. The Court will always try to avoid undue formality and expense, adopting a proper judicial approach to resolving disputes while facilitating ease of access to litigants. Where appropriate, it will dispose of matters in writing on the basis of written submissions. The members will often inspect the land in question to be sure that they have a proper understanding of the nature of the dispute.
The Lands Tribunal for Scotland
There is a close relationship between the Land Court and the Lands Tribunal for Scotland. They share the same offices and staff. Since 1978 the Chair of the Court has also served as President of the Tribunal. One of the Court’s two legally qualified members also serves as a legally qualified member of the Tribunal. However, the work the two bodies undertake is quite distinct. The Lands Tribunal’s jurisdiction extends to disputes regarding land registration, title conditions, claims for compensation under various statutory schemes, proceedings under the Electronic Communications Code and other matters. Its membership comprises the President, two legally qualified members and one surveyor member. The Lands Tribunal typically sits with one legally qualified member and the surveyor member, although its jurisdiction may be exercised by any one or more of its members. An appeal on a point of law against a decision of the Lands Tribunal is by written appeal direct to the Court of Session.
The Crofting and Scottish Land Court Bill is currently before the Scottish Parliament. The Bill seeks to transfer the jurisdictions and functions of the Lands Tribunal for Scotland, including all proceedings being heard by it to the Scottish Land Court. This, if passed, will expand significantly the subject matter jurisdiction of the Court.
The Office of Chair
Those formally eligible for appointment as Chair of the Court are advocates of ten years’ standing; sheriffs principal or sheriffs who have held office as such for a continuous period of not less than ten years; and solicitor advocates of not less than ten years’ standing: Scottish Land Court Act 1993, section 1(3).
The Chair’s work is predominantly judicial in character. The Chair requires to operate at a high level of competence in civil law and procedure. Applicants should demonstrate a degree of competence as a lawyer that marks them out from their peers. The Chair must possess the ability, legal standing and a range of personal and judicial qualities in order to successfully perform the functions of the office. Further information about these qualities is contained in the Role Profile, a link to which is below.
Candidates should be able to demonstrate knowledge and experience in the branch of the law in which they have regularly practised, as well as the ability to work effectively in branches of law arising in business before the Land Court, including new or emerging areas. The nature and complexity of cases varies enormously and members are expected to exercise a good deal of case management to find the most effective way of identifying and dealing with disputed issues. In comparison with other courts, a comparatively high proportion of parties before the Land Court are self-representing. The ability to handle potentially highly charged proceedings in a firm but sensitive way is an important part of the conduct of hearings. The Chair may be asked to sit as a Temporary Judge in the Court of Session.
Although the position of Chair is predominantly judicial in character, it includes a significant leadership aspect. The Chair is the leadership judge for members of both the Court and the Tribunal. The Chair has responsibility for allocation of work amongst members of both bodies and the resourcing and strategic management of the Court and Tribunal. The Chair is a member of the Judicial Council for Scotland and may be asked to sit on other committees or engage with external bodies by the Lord President. The Chair may also have to get involved in dealing with questions from, for example, the Scottish Law Commission on law reform issues and government bodies such as the Scottish Government Rural Inspections and Payments Directorate about appeal procedures.