Holmes Mackillop director welcomes first case confirming Scottish Land Court's power to dismiss cases for delay
Holmes Mackillop Solicitors director, Craig Donnelly, has welcomed the Scottish Land Court’s dismissal of a landlord’s application to evict a tenant farmer from Flenders Farm, Clarkston, Glasgow, following what the Court described as an ‘inordinate and inexcusable delay’ spanning nearly two decades.
In an important decision issued on 22 January 2026, the Court ruled in favour of tenant James Stewart Miller, finding that the landlord’s 19-year delay in progressing the case created a substantial risk that a fair trial was no longer possible.
The decision is notable as it appears to be the first case confirming the Scottish Land Court's inherent common law power to dismiss cases for delay, following the practice established in the sheriff court and Court of Session.
The Court applied the established three-part test from cases such as Tonner v Reiach & Hall and Hepburn v Royal Alexandra NHS Trust which requires there to be an inordinate and inexcusable delay with an added element of unfairness.
The application was originally commenced in 2006 by Major John Carmichael Kirkpatrick Young, seeking to terminate Mr Miller’s tenancy based on a notice to quit dated 26 May 2006. Mr Miller’s father, Matthew Miller, had been the original tenant before his death in May 2007, with Stewart Miller inheriting the tenancy under the Agricultural Holdings (Scotland) Act 1991.
Following the commencement of proceedings, virtually no procedural steps were taken between 2009 and 2022.
In 2010, parties had entered into a conditional settlement agreement which provided for dismissal of the application, sale of part of the farm to the tenant, creation of a limited-duration tenancy over other parts, and provision for the possible development of the land. However, this agreement fell through when the required third-party consents were not granted.
The case remained dormant for over 12 years following the failed settlement, with the Court only intervening in December 2022 to require parties to lodge proposals for further procedure.
Lord Duthie and Mr John Smith, a farming expert who sits on the Court, found that the delay satisfied the three-part test required for dismissal: it was inordinate, inexcusable, and created unfairness amounting to a substantial risk that a fair trial was no longer possible.
The Court noted that the landlord and five of the eight individuals who would be key witnesses are now deceased, with the whereabouts of a sixth person unknown. The remaining witnesses would be required to recall conversations from nearly 40 years ago. Additionally, documentary evidence relating to rent reviews, repair costs, and correspondence has been lost or is no longer available.
In its opinion, the Court stated: ‘Delay of that magnitude goes well beyond what is tolerable in civil litigation’ and concluded that ‘the present proceedings can no longer be resolved fairly.’
The Court rejected the landlord’s arguments that delay was excusable due to Major Young's deteriorating health, noting that a power of attorney had been in place since 1996 and there was ‘no legal impediment to procedural steps being taken on his behalf.’
Craig Donnelly, a litigation director with Holmes Mackillop, said: “We are pleased to have been able to assist Mr Miller in bringing this matter to a successful conclusion. This appears to be the first reported case from the Scottish Land Court confirming that it has the inherent power to dismiss proceedings for inordinate and inexcusable delay.
“The decision serves as an important reminder to pursuers and applicants that the onus is on them to progress an action timeously – there is no burden on a defender or respondent to push matters forward on behalf of the other party.
“Delay of this magnitude, particularly where key witnesses have died and crucial documents are no longer available, undermines the fundamental right to a fair trial.”
Stewart Miller added: “After 19 years of uncertainty hanging over my head, I am relieved that this long-running case has finally come to an end.
“My family has farmed this land for over 140 years, and we can now focus on what we do best without this legal battle consuming our time and energy.
“I look forward to having meaningful discussions with the landlord’s representatives about the farm and how we can work together constructively in the future.
“I am deeply grateful to Holmes Mackillop, Michael Upton, advocate, and Martin Hall of Davidson & Robertson, rural surveyors, for their unwavering support and excellent representation throughout this difficult period.”
ENDS
For further information please contact on Craig Donnelly on tel 0141 226 4942