The Inner home overturned the Land Court’s decision that effective notice below the agricultural holdings legislation had been given, even though it was sent to an individual that was a director of the landlord company rather than the landlord at its registered office. The senior court described the law surrounding notices as a “bright line test”, given the require for parties to “know their respective positions and thus … be competent readily to ascertain whether or not a notice has been given”.

“It is simply not satisfactory that the short question: whether notice has been given and therefore whether a statutory or conventional power has or has not been exercised, should be allowed to be determined on the basis of a wide-ranging enquiry into the state of knowledge of the person who should own been given notice but was not and how that state of knowledge came about,” said Lord Brodie, giving the judgment of the court. “That is not a way to attain certainty or indeed consistency.”

“subsequent a steady stream of cases on the point over the endure six to ten months, the Inner home has once again reinforced that getting the strict terms of a notice wrong can be fatal,” said litigation expert Steven Blane of Pinsent Masons, the law firm behind Out-Law.com.

“Although this decision concerns agricultural holdings legislation, the principles and authorities relied upon apply to every types of notice whether given below statute or in terms of a lease, option agreement, missives or any other arrangement,” he said.

The dispute concerned a notice served below section 72(6) of the 2003 Agricultural Holdings (Scotland) Act, the intention being to transfer the tenancy of a farm at Blindhillbush, Dumfriesshire from a now-dissolved limited partnership to single of the partners in his own proper. A lawyer working for that individual, William Hodgson, had addressed the notice to “Michael John Jardine Paterson, Balgray” at his home address in Lockerbie, rather than to Balgray itself, the corporate landlord of the farm.

The Scottish Land Court had allowed Hodgson’s appeal against the notice, on the basis that Paterson was “the controlling mind of the company”. It found that there were “no requirements … as to the makeup of notice or mode of service” in relation to the notice procedure set out in the 2003 Act; merely a simple requirement that the tenant “gives notice to the landlord”. The court ruled that as there was no requirement that the notice be given in writing, the letter was sufficient that Paterson’s “knowledge or state of mind could be taken to be the knowledge or state of mind of [Balgray]”.

The Inner home disagreed. They were critical of the way in which the Land Court had based its decision on the 2008 Ben Cleuch case, which is frequently relied upon by parties in dispute over the validity of notices. In the Ben Cleuch case, in which Pinsent Masons acted, the Inner home ruled that a notice which had been incorrectly addressed but which had ultimately reached the correct person was not valid. The Land Court ruled that the current case was varied, because it was a requirement of the notice in the Ben Cleuch case that it had to be in writing.

“That distinction falls away once a general partner chooses to grant what he intends as a section 72(6) notice in the makeup of writing,” Lord Brodie said in his judgment. “Having chosen writing as the medium of giving notice, the juristic act which the general partner must perform if he is to exercise the section 72(6) power is to grant notice in writing ‘to the landlord’. As we own already pointed out, that is what the Land Court had found … not to own been done in this particular case.”

“As the Land Court found, what [Hodgson] relies on as notice [the letter to Paterson] was not given to the landlord; it was given to somebody else. Were there any doubt about that (and we do not suggest that there is), it would be resolved by consideration of what was said in Ben Cleuch…: ‘a notice addressed to a party other than the landlord … cannot be regarded as a notice given to the landlord’,” Lord Brodie said.

“The Ben Cleuch case is frequently relied upon by parties in this situation, so this is a helpful reminder by the court of what should be taken from that case,” said litigation expert Steven Blane of Pinsent Masons.