News Release

Scottish Tenant Farmers Association

8th June 2021



The Scottish Tenant Farmers Association (STFA) has welcomed today’s publication of analysis of the Consultation on the Future of the Scottish Land Court and the Lands Tribunal for Scotland. The Scottish Government were consulting on various issues relating to the Scottish Land Court and the Lands Tribunal and whether the two bodies should be amalgamated and, if so, whether the resultant body should be a court or a tribunal. The consultation also sought views on the allocation of expenses following Land Tribunal hearings and Land Court rural payment appeals and whether or not the current long-established principle of expenses following success raised access to justice issues and should be amended.

Commenting on the consultation, STFA Chairman, Christopher Nicholson said: “We are heartened that this consultation has agreed with STFA that the present power of the Land Court to award expenses against unsuccessful appellants in rural payment appeals operates as a barrier to justice. These hearings should be either conducted on the basis of each side paying its own expenses or capped at a reasonable level which should deter vexatious appeals but should not act as a deterrent for genuine appellants.

“However, the “winner takes all” principle raises more widespread concerns in situations where there is usually an imbalance of resources between parties. 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.

“STFA believes that with regard to fairness and access to justice, account must also be taken of the way in which expenses are currently awarded following the resolution of disputes between landlords and tenants. This consultation has noted that the Land Court was originally established to protect tenants’ rights and indeed the cost of referral to the Land Court in itself does not present a financial 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. In many landlord/tenant disputes such as rent reviews, individuals may have the necessary experience and expertise to argue the case themselves but are deterred from doing so because of the fear of having landlord’s expenses awarded against them.

“STFA hopes that this consultation will become a catalyst for Land Court reform. The tenanted sector now has comprehensive guidance and codes of practice from the Tenant Farming Commissioner. The Court should be taking account of compliance to these codes and reflecting non-compliance in any apportionment of expenses. Justice must become affordable and expenses brought under control either by the introduction of a statutory cap on awards of expenses – so that appellants would know it advance what their maximum exposure to expenses was – or a discretion to the Court to limit awards in appropriate cases.”