Possession was decided. Responsibility was not.
At 11 a.m. on 15 June 1999, sheriff officers came to Powhillon to remove the tenant, the family and everyone occupying through them. The Final Notice of Ejection had arrived four days earlier. It authorised forced entry and said that Mrs Janet McKie Hill, her family, sub-tenants, cotters and dependants would be “REMOVED AND EJECTED”.
The final act came quickly. The route to it did not. WWT had pursued possession through an immediate irritancy, statutory Notices to Quit, arbitration, Land Court proceedings and a separate action for rent arrears. By the time possession was granted, the cattle had already been removed and dispersed. The Damages Arbitration—the process intended to determine whether WWT's failures as agricultural landlord had caused the condition and losses at Powhillon—had still not heard its substantive evidence.
Proceedings based upon the condition, occupation and finances of the farm advanced to ejection. The separate damages reference did not advance to a substantive proof of WWT’s alleged breaches. WWT recovered possession. The allegation that its own conduct had helped make the farm unworkable remained undecided.
The legal papers usually named Mrs Janet McKie Hill as the tenant. Daniel and June Quinn, trading through R Hill & Co, lived at Powhillon and ran the cattle enterprise in practice. That distinction did not begin when eviction proceedings were raised. It arose from an arrangement WWT itself had accepted.
In 1982 WWT allowed Mrs Hill to live away from Powhillon while her daughter and son-in-law occupied the farmhouse and ran the holding. The arrangement appears in WWT's own later correspondence. On 22 June 1993 Mrs Hill's solicitor recorded that WWT had agreed Daniel and June could run the farm. The next day WWT's agent relied upon the same arrangement when withdrawing the residence waiver and requiring Mrs Hill to return within two months.
The grounds WWT then advanced ranged across rent, fences, cattle management, the condition of the holding and the breakdown of relations with the landlord. They also included Daniel's shooting of geese on 11 March 1993, although his criminal case had not yet been tried. An occupation which WWT had authorised was now being presented as conditional upon its assessment of how the farm was being run.
The identity question would remain unsettled throughout the later litigation. WWT and the courts continued to proceed against Mrs Hill as tenant. Yet on 1 March 1999 the farm's accountants, Saint & Co, recorded their understanding that Mrs Hill had “resigned as Tenant in 1982 and became a Loan Creditor”. That letter did not itself transfer the tenancy or identify a successor. It does show that the difference between the named tenant and the people conducting the agricultural business was real and contemporaneous, not a distinction invented after the ejection.
On 5 March 1993 WWT's counsel, Sir Crispin Agnew, considered the tenancy problem in a note about a proposed Land Court application. He had not read the complete files, and his questions were not judicial findings. They nevertheless show what WWT was being advised to examine.
Agnew questioned whether Mrs Hill was farming Powhillon herself or whether her son-in-law was doing so, and whether that might amount to an inversion of the lease. He asked whether termination under section 24 of the Agricultural Holdings (Scotland) Act 1991 had been considered. He raised those possibilities as a counter to the suggestion that Powhillon should be sold to the tenant “to avoid further trouble”.
The note was written six days before Daniel shot the three geese which led to the Shooting Trial. It does not establish that WWT had already decided upon one completed plan of eviction. It establishes that the formal identity of the tenant, Daniel's practical occupation and statutory routes to termination were already under legal examination.
On 26 October 1993 Austins, acting for WWT, purported to irritate and terminate the lease immediately. The notice alleged that Mrs Hill was a sleeping partner, that the farm was being operated through a third-party partnership and that the proprietary interest in the livestock belonged to that partnership. It required Mrs Hill, her family and the partnership to leave with their cattle, stock, goods and equipment.
WWT then demanded and accepted rent for a period extending beyond the supposed termination. Acting on the tenant side, D. G. Rennie advised Daniel to pay the demand and retain the receipt. On 30 November he sent that receipt to Austins and maintained that WWT had waived both the irritancy and the breaches upon which it relied.
Austins confirmed on 31 January 1994 that WWT would not proceed with the notice because rent had been accepted. The firm reserved WWT's position on other remedies and disputed the wider effect of accepting rent. The first attempted termination had fallen away. The dispute over occupation, management and possession had not.
On 24 March 1994 Mrs Hill referred her damages claim against WWT to statutory arbitration. She alleged that WWT had failed to control wildfowl numbers and failed to maintain the house, buildings, drainage, water supply, fences, sea wall, ditches and merse required by the agricultural holding. John Galloway Marshall was appointed arbiter on 25 April.
While that claim remained undecided, WWT served two further Notices to Quit on 12 October 1994. One invoked the “sound management of the Estate”; the other invoked “good husbandry”.
Those were statutory concepts, not decorative phrases. Under section 24 of the 1991 Act, the Land Court could consent to a landlord's notice where the proposed purpose was desirable for good husbandry or sound estate management. Even then, it was required to withhold consent if, in all the circumstances, a fair and reasonable landlord would not insist upon possession.
Conservation use was not automatically incapable of forming part of sound estate management. The Powhillon conflict was more fundamental. WWT was asking to recover the agricultural holding by reference to standards of farming and estate management while the tenant was already seeking adjudication of whether WWT's own failure to control geese and maintain the fixed equipment had prevented the holding from being farmed to those standards. The landlord's conduct was not collateral to possession. It was part of the factual foundation upon which the possession case depended.
From 1996 onward, two rent-related routes ran alongside the unresolved damages claim. They concerned different rent and used different statutory machinery.
The first was a Notice to Quit concerning the rent due at Martinmas 1995. WWT's later pleading dated the notice to 3 May 1996. Mrs Hill invoked section 23 of the 1991 Act and required arbitration of the statutory question. Marshall was appointed on 14 June 1996. Once arbitration had been required, section 23(4) suspended the notice until the arbiter issued his award.
The second was a direct action under section 20 of the 1991 Act. As the law stood in 1997, six months' unpaid rent entitled a landlord to raise an action in the Sheriff Court seeking removal at the next Whitsunday or Martinmas. The sheriff could grant removal unless the arrears were paid or caution was found for the arrears and a further year's rent.
The distinction matters because the second action expressly excluded the rent used in the first. They were not two descriptions of the same rent demand or the same statutory process.
By September 1996 WWT was pursuing Land Court proceedings as well as the Notice-to-Quit arbitration. In a letter dated 17 September 1996, K. A. Ross of Gillespie Gifford & Brown explained why the order in which the cases were decided mattered.
Ross wrote that it was not in Mrs Hill's interest for the Land Court applications or the Notice-to-Quit arbitration to be dealt with before the damages claim. He said they “all really relate to the same factual question”: whether the landlord had failed in its obligations under the lease, whether those failures had prevented the tenant from farming as required, and whether loss had followed.
The point was direct. If WWT's failures had caused the agricultural deterioration and financial loss later used to end the tenancy, possession should not be determined until that responsibility had been heard. Ross recommended a joint application or, if WWT refused, an application to sist the other proceedings. The damages evidence was not heard first.
On 20 March 1997 Sheriff Michael Fletcher granted the pre-trial warrant sought by Procurator Fiscal David Howdle. The following day officials began removing the entire herd. The source and extent of the power used, the absence of an ownership determination and the permanent disposal of the animals before trial are examined in Cattle Stolen.
Powhillon lost its cattle enterprise and the income, grazing system and working stock upon which the farm depended. The cattle were sold, died or were destroyed before Daniel's November trial. The resulting absence of stock and income later appeared in the damages arbitration as part of WWT's case for financial security. The consequence created by one proceeding became material in another.
Two months after the cattle were removed, WWT lodged a separate Initial Writ under section 20. It sought removal at Martinmas 1997 of Mrs Hill, Daniel as her manager, their families, sub-tenants, licensees and the farming partnership, together with cattle, goods and equipment.
WWT pleaded arrears at terms from Martinmas 1994 to Martinmas 1996. It also identified the earlier Notice to Quit and the arbitration already required over the Martinmas 1995 rent. The writ then drew the boundary in express words: “Accordingly this application does not relate to the rent due at Martinmas 1995.”
The direct rent action and the arbitrated Notice to Quit were therefore separate routes toward the same practical result. Both continued while the tenant's claim that WWT's breaches had caused the farm's loss remained awaiting proof.
By 1998 the goose-damage and consequential-loss claims still required witnesses. WWT's counsel estimated that the remaining proof would need at least ten days. A five-day hearing was fixed for August after earlier delay attributed by Marshall’s clerk to the unavailability of WWT’s counsel. WWT then applied for £10,000 caution for expenses, displacing the scheduled proof. Its case relied upon the absence of stock, the absence of an agricultural enterprise or income and the tenant's financial weakness.
Those circumstances did not arise in isolation. The herd had been removed under the March 1997 warrant. The agricultural business had lost the property and production from which income could be generated. Yet the resulting weakness was now being used to ask for money as a condition of continuing the claim which sought to establish responsibility for the farm's losses.
Marshall did not decide the caution motion. The arranged proof did not take place. On 23 September 1998 Mrs Hill's solicitor recorded that nothing could happen until caution was decided and that, after all those years, “not one single substantive issue” had received a hearing.
In a Statement of Claim necessarily produced after August 1998, WWT pleaded the route from the Notice-to-Quit arbitration into a removal action. It said Marshall had issued one award on 22 June 1998 and a final award on 20 August, had held the notice valid and had required Mrs Hill to remove. The underlying awards have not yet been recovered, so the pleading records WWT's case rather than replacing the awards themselves.
The same pleading expressly distinguished a separate irritancy proceeding, Summary Action H112/98. That accords with the 27 May 1997 writ: the Martinmas 1995 Notice to Quit and the action for other rent were different proceedings.
The pleading also contains a chronology which cannot be correct as written. It says a demand dated 11 August 1996 allowed two months for payment, but then says that failure to comply led WWT to serve the Notice to Quit on 3 May 1996—more than three months before the demand. It also calls the arbiter “John Gavin Marshall”, although the appointment records identify John Galloway Marshall. A statutory notice could not result from non-compliance with a demand issued three months later. The demand, notice, proof of service and actual awards are required to establish which date or allegation in WWT's pleading was wrong.
On 15 October 1998 a new summons was issued in case H206/98: Wildfowl Trust (Holdings) Limited against Mrs Janet McKie Hill. It sought recovery of Powhillon and removal of Mrs Hill, her family, sub-tenants and dependants, together with their possessions. The case was called for 17 December 1998.
The court process sheet records the result on 2 March 1999: “Decree ejection with Exps as craved.” Sheriff Clerk P. J. McGonigle later confirmed that the action was WWT against Mrs Hill and said that, to his knowledge, no case had been raised against Daniel personally.
That did not spare Daniel, June or R Hill & Co from the result. The decree sought against the named tenant extended in practical effect to her family, sub-tenants and dependants occupying through her. The court proceeded against Mrs Hill as tenant while the people who lived at and farmed Powhillon were removed with her.
In later correspondence dated 2 December 2003, Patricia Fiddes recorded the court's understanding that Sheriff K. G. Barr granted the decree after hearing the pursuer's solicitor and the Quinns, but without evidence being heard. Austins separately confirmed that WWT instructed enforcement after decree.
H206/98 was not the ten-day damages proof. In the account later given by the sheriff clerk, the decree followed submissions rather than evidential proof. That possession proceeding did not determine the tenant’s separate claim that WWT’s alleged breaches had contributed to the condition of the holding and the agricultural losses. Mrs Hill's own solicitors had warned in 1996 that possession and damages depended upon the same issue: whether the landlord's failures had prevented the farm from operating as required and caused the loss used against the tenant. By 2 March 1999 that question was still waiting for its first substantive hearing.
Nothing in the surviving decree records a determination that WWT had fulfilled its lease obligations, that its conduct had not caused the tenant's losses or that the damages claim lacked merit. The court granted possession while those matters remained outside the evidence it heard.
The statutory term dates were part of the proceedings. The 1997 section 20 writ sought removal at Martinmas 1997. WWT later pleaded that the arbitrated Notice to Quit was also expressed for Martinmas 1997 but had been suspended while Marshall decided the challenge. Under section 23(5), an award issued less than six months before the date of removal allowed an application to the Land Court within one month for postponement of up to twelve months. WWT alleged that no such application was made.
Barr granted decree on 2 March 1999. Under the Term and Quarter Days (Scotland) Act 1990, Whitsunday was 28 May and Martinmas was 28 November. Whitsunday 1999 passed. On Friday 11 June, Scott & Co's notice fixed physical ejection for the following Tuesday.
The historical law governing an extract decree of removing used a forty-eight-hour charge; Parliament did not substitute fourteen days until years later. The four-day notice does not, by itself, demonstrate breach of that minimum. It demonstrates the human operation of the rule then in force: after generations at Powhillon and years of unresolved litigation, the family had four days' final warning to leave a farm, a home and the remaining property of the business.
The ejection went ahead on 15 June. Mrs Hill was the defender named in H206/98. Daniel and June were among the people removed under the order sought against the tenant's family and those occupying through her. The operating farm was brought to an end before the damages evidence about why it had failed had been heard.
The Final Notice does not identify the case number or decree it enforced. The surviving archive contains the H206/98 summons, court process sheet and decree immediately preceding the ejection, but not the extract decree or execution warrant linking that case directly to Scott & Co's act. That missing link matters because WWT had also pursued the separate section 20 action identified as H112/98. The physical result is documented. The precise execution chain between the parallel routes still requires the extract and warrant.
Ejection did not dispose of the Damages Arbitration. Government continued extending Marshall's period for making an award. On 2 July 1999 his clerk recorded that the connected references remained inextricably linked, that WWT's caution motion had displaced the August 1998 hearing and that a further stated case was still being prepared.
Years later Marshall's former firm described the arbitrations as “dormant” following WWT's caution motion. It did not say the damages claim had been withdrawn, rejected after proof or finally determined. Replacement-arbiter proceedings continued after Marshall's death. The statutory mechanism eventually failed without the underlying agricultural evidence being adjudicated.
The order of events is recorded. The cattle were removed in March 1997; their absence and the loss of agricultural income later featured in WWT’s caution application; the damages proof was displaced in August 1998; and decree of ejection followed in March 1999. The underlying claim concerning WWT’s alleged lease breaches had still not reached proof.
The eviction history began before the final rent cases. WWT's counsel was considering termination and the tenant-identity problem in March 1993. WWT withdrew the residence arrangement it had previously accepted, attempted immediate irritancy, abandoned that notice after accepting rent, served further notices based upon good husbandry and sound management, arbitrated a later Notice to Quit and raised a separate section 20 action.
During the same years, the tenant was pursuing the opposite side of the agricultural relationship: that WWT had allowed goose pressure to damage the grazing and had failed to maintain the buildings, drainage, water, fences, sea wall and other fixed equipment required to farm Powhillon. The tenant's own solicitor identified the common question and warned against deciding possession first. Nevertheless, the herd was removed, the resulting absence of stock and income was used in the caution dispute, the damages proof was displaced and decree of ejection followed without evidence being heard.
The successive proceedings reached different results. WWT obtained decree and recovered possession, although the Final Notice does not identify the particular extract decree used in enforcement. The tenant’s allegations against WWT remained unresolved in the damages arbitration. Possession and liability were not determined together.
On 15 June 1999 WWT recovered Powhillon. The dispute over who was responsible for what had happened there survived. Possession was decided. Responsibility was not.
1978
Caerlaverock
forever missed
Barnacle Geese
Simmental Cross
September equinox
In Loving Memory
WWT
Animal Rights Farming
Wader Habitat Destruction
Gary McAteer Beltrami
"doesn't contain antibodies"
Procurator Fiscal
Sheriff