Agricultural land tribunal — Appeal by case stated and application for judicial review — Application by appellant to tribunal under sections 20 and 21 of the Agriculture (Miscellaneous Provisions) Act 1976 — Question as to appellant’s ‘principal source of livelihood’ — Appellant pooled all his resources with working wife — No findings made by tribunal on questions of law as to how the appellant’s source of livelihood should be calculated for the purposes of sections 20 and 21 or as to how the requirements as to the ‘principal source of livelihood’ could be ‘satisfied to a material extent’ — No findings either of facts sufficient to enable questions of law to be decided by the court — In the event the court did not know how the tribunal had directed themselves on the construction points or what conclusion they had reached as to the income derived from the agricultural unit — Thus tribunal had failed both on a common law requirement and under the Agricultural Land Tribunals (Rules) Order 1978 — As a result the case stated was unsatisfactory — The court did not have the material on which to answer the questions posed in the case — The matter was not a proper one for judicial review, but the case must be remitted to the tribunal — Guidance for tribunals as to procedure in judgment given in Industrial Court case of Alexander Machinery (Dudley) Ltd v Crabtree — Parties’ position on remission of case explained — Direction accordingly
The appellant
in the case stated and applicant in the judicial review application was Richard
David Moses, who had applied for a new tenancy of an agricultural holding under
the Agriculture (Miscellaneous Provisions) Act 1976 following the death of his
mother. The respondent was the landlord, Robert Andrew Hurst. The case
concerned 24 acres of arable land at Baythorpe Farm, Swineshead, near Boston,
Lincolnshire in the area of the Eastern Area tribunal.
Robert Pryor
QC (instructed by Roythorne & Co, of Spalding, Lincs) appeared on behalf of
the appellant; Seddon Cripps (instructed by Slaughter & May) represented
the respondent.
Giving
judgment, HODGSON J said: This, primarily, is an appeal by way of case stated
from a decision of the Agricultural Land Tribunal for the Eastern Area,
promulgated in a decision letter dated April 15 1983. The case concerns 24
acres of arable land at Baythorpe Farm.
The appellant,
Mr Moses, is a man now of some 43 years. He was born in 1939. Until his
father’s death in 1953, his father farmed this 24 acres along with other land.
On his father’s death, his mother, Emily Moses, became the tenant of the 24
acres. When he left school, the appellant farmed the land with his mother. The
appellant married on May 24 1958. His mother remained tenant of the land but
took no part in the farming. At the time of the marriage, the wife was a ‘gang
master’, and after marriage she continued with this work. This work is
providing labour for farmers who need it, by contract with the farmer, she
paying the labourers and the farmer paying her, and she, no doubt, making a
profit out of the transactions owing to the organisation needed and, I think I
was told, the transport.
The appellant
in 1975 farmed another 2 1/2 acres, to which a further 1 1/2 acres was added in
1976. The appellant mainly worked on the 28 acres, consisting of the 24 acres,
the subject of this case, and the other four acres. Throughout their marriage,
during which the wife worked in various occupations, the practice between them
was to deal with all their business arrangements in the same set of accounts.
And, as may not be uncommon in agricultural communities, the accounts had to be
produced by their accountant with the minimum of information, consisting of no
more than bank statements, cheque stubs, paying-in books and any receipted
accounts which were available.
Emily Moses
died on January 29 1981. On her death, the appellant sought to avail himself of
what I may call the ‘inheritance provisions’ in the Agriculture (Miscellaneous
Provisions) Act 1976. The provisions for succession to a tenancy on the death
of a tenant are contained in sections 18 to 24 of the Act.
Section 20(1)
provides that: ‘Any eligible person may within the relevant period apply to the
Tribunal for a direction entitling him to a tenancy of the holding.’ In section 18 is found the definition of
‘eligible person’. That definition reads: ‘An ‘eligible person’ means . . . . a
survivor of the deceased in whose case the following conditions are satisfied
(a) he falls within paragraphs (a) to (d) of subsection (1) above’ — those
subsections detail the relationships and it is not in dispute that the
appellant comes within those — ‘(b) in the seven years ending with the date of
death his only or principal source of livelihood throughout a continuous period
of not less than five years’ — leaving out an irrelevant sentence — ‘derived
from his agricultural work on the holding or on an agricultural unit of which
the holding forms part; and (c) he is not the occupier of a commercial unit of
agricultural land . . .’ There has never
been any suggestion that the appellant was that. He has always fulfilled (a)
and (c) of the definition and the whole question has turned on whether he can
bring himself within (b).
If an
appellant or an applicant is unable to bring himself within the definition
precisely of ‘eligible person’, there is a fall-back provision in section 21
which reads:
This section
applies to any survivor of the deceased who for some part of the seven years
ending with the date of death engaged (whether full-time or part-time) in
agricultural work on the holding, being a person in whose case — (a) the
conditions specified in paragraphs (a) and (c) of the definition of ‘eligible
person’ in section 18(2) of this Act are satisfied; and (b) the condition
specified in paragraph (b) of that definition, though not fully satisfied, is
satisfied to a material extent.
Within the
time-limit, on April 16 1981, the appellant applied to the tribunal for (a) a
direction under section 20(1) of the Agriculture (Miscellaneous Provisions) Act
1976 entitling him to a tenancy of the 24 acres and (b), and alternatively, for
a determination under section 21(2) of the said Act, that he was to be treated
as an ‘eligible person’ for the purposes of Part II of the Act.
On his
application, what the appellant had to satisfy the tribunal about, putting the
requirements together, was this: that in the seven years ending with the date
of death, his only or principal source of livelihood, throughout a continuous
period of five years — and here it was never contended for any period other
than the first five years — derived from his agricultural work on the holding
of 24 acres or on an agricultural unit of which the holding formed part. In
parenthesis, I may say on this point, that although at first his application
did not include the 4 acres to which I have referred, an amendment was allowed
and the tribunal found — and, I think, clearly found — that there was an
agricultural unit of 28 acres of which the 24 acres formed part.
Continuing, he
also had to satisfy the tribunal that he was a suitable person to become a
tenant, a requirement of section 20(2). That was never in dispute.
So what was
left on his main submission was this: that he had to satisfy the tribunal that
during the five years between January 29 1976 and January 29 1981 his only or
principal source of livelihood derived from his agricultural work on the
holding. Alternatively, if he could not satisfy the requirements of the
definition of section 18, he had a fall-back position, if he could satisfy the
tribunal that he came within section 21.
So far as
section 21 was concerned, his problem was not that he could not fulfil the
period of the qualification in the main part of the section, but that he might
be held to fall short of the ‘only or principal source of livelihood’
provision. That he could get over if he could show (1) that the condition as to
his sole or principal source of livelihood was satisfied to a material extent
and (2) (a requirement not applicable to a section 18 definition application)
that it was fair and reasonable for the applicant to be able to apply.
The
construction of these provisions has presented the courts and tribunals in the
past with problems. The two relevant ones, so far as
is living with a working wife and pooling all their resources; and (2) How can
the requirement of a principal source of livelihood be ‘satisfied to a material
extent’? The problem with that second
question was dealt with by His Honour Judge Fay, sitting as a deputy High Court
judge in a case to which I have been referred.*
*Editor’s
Note — Littlewood v Rolfe [1981] 2 All ER 51; (1980) 258 EG 168.
The hearing of
the application took place on February 15 and 16. The tribunal met again on
February 24 prior to sending their decision letter to which I have referred.
The appellant, his wife and an accountant, Mr Hemmant, gave evidence on behalf
of the appellant. No evidence was called on behalf of the respondent.
Before the
tribunal could come to a conclusion, they had first to direct themselves on the
law to be applied in this case, the construction of the statutory provisions,
and then to see whether the facts they found, within the context of the law,
satisfied them or not that the appellant came within the provisions.
The
appellant’s contentions on the construction of the statutory provisions were
set out in paragraphs 6(h) and (i) of the case in these terms:
(h) That anything more than one half of his half
of the joint income (that is one quarter of the joint income) was sufficient to
satisfy in full the requirement that his only or principal source of livelihood
should have derived from his agricultural work on the holding. (i) That anything
more than one quarter of his half of the joint income (that is one eighth of
the joint income) could and would be sufficient to satisfy the requirement to a
material extent.
The
respondent’s contention was set out in paragraph 7(i) in these terms: ‘That it
was the applicant’s half of the total joint income that was relevant when
deciding if he satisfied the livelihood test to a material extent.’
On those two
questions of law, the tribunal made no finding at all. It does not appear from
the case that they ever addressed their minds to the problem at all. Nor do I
know — nor can I know — what the evidence, relevant to those two questions of
law, within the context of which those two questions of law should have been
asked, was. As I say, if they did so direct themselves, it does not appear.
Thereafter what they had to do was to find facts sufficient for them to come to
conclusions and it is obvious that they had to find what, in fact, the
appellant’s livelihood was, and what was the source of that livelihood.
The appellant
sought to satisfy these requirements, first of all, by producing accounts to
show what had been, during the relevant five years, the joint income of himself
and his wife; and, secondly, by proving by oral evidence what proportion of that
joint income came from his agricultural work on the agricultural unit.
In
parenthesis, I should mention — because the tribunal mentioned it — that
undoubtedly over a considerable period prior to the hearing, the respondent’s
solicitors had been trying, unavailingly, to get detailed accounts from the
appellant.
The framework
of his oral evidence, and I imagine that of his wife and accountant also, was
the written statement, at first in its very sparse form, at pp 119 to 126 in
Bundle C, to which he gave some flesh by amendments which were added to those
documents on the first morning of the hearing, in the amended statements which
are before me.
Those amended
statements are in this form. They purport to show, in relation to the 28 acres,
the crops which were grown in each year; the number of acres on which those
crops were grown; and the gross receipts from those crops less purchases,
labour, contract and other expenses, arriving for each year at a net figure for
profit.
There seems no
doubt that had those figures been accepted, or even substantially accepted, by
the tribunal; and had the contention in law of the appellant been also
accepted; then the appellant would have brought himself fairly and squarely
within the requirements of the Act.
The tribunal
accepted the evidence as to the joint income and made their findings as to
that, which are, I think, unchallenged, in para 4(j) of the case. But it is in
the way in which they dealt with the oral evidence which was before them that
the main burden of Mr Pryor’s complaint is made.
How they did
it appears in subparagraphs (e) and (f) of para 8. What they said was this:
The applicant
has produced figures in his calculations which, if accepted, might have led us
to such a conclusion.
That is the
conclusion that he satisfied the requirements of the Act.
However, it
was our unanimous conclusion, bearing in mind the way in which these figures
were produced without any documentation of any kind, that the figures could not
be relied upon at all.
(f) In those circumstances the applicant has not
satisfied us of the matters specified in section 18(2)(b) of the Act either
fully or to a material extent. He is not, therefore, an eligible person to make
this application and his application must therefore fail and be dismissed.
To understand
that finding, I think it is necessary to refer to the decision letter where Mr
Cripps’ argument is set out at considerably greater length than in the case
itself. That appears at para 15 of the decision letter and reads thus:
Mr Cripps on
behalf of the respondents suggested that in the absence of any contemporary
documents the applicant could not satisfy us that his principal source of
livelihood derived from his agricultural work on the holding or on an
agricultural unit of which the holding forms part.
If that
argument is read literally, it was plainly wrong, and I do not think it is
contended otherwise. There might be occasions in other circumstances where the
mere lack of a document without explanation might itself be enough, but that is
certainly not this case, particularly, perhaps, in view of the finding of the
tribunal in their decision as to the total income of husband and wife, as to
the sparsity of the documents on which the accounts were drawn up by the
accountant.
What I do not
know, and what nowhere appears in the case, is: (1) did the tribunal accept the
appellant’s recollection as to what crops had been grown on the land? If they did not accept it wholly, to what
extent did they reject it? And, (2) did
the tribunal accept the estimation of profit made from whatever crops they
found had been grown on the land? If
not, to what extent were those estimates wrong?
I am told that
the appellant was cross-examined at length as to the accuracy of his
recollection, but that no suggestion was made that he or his witnesses were
being dishonest or deliberately attempting to mislead the tribunal.
The position
now is that the appellant wishes to challenge the tribunal’s finding as being
wrong in law. But he cannot do so because: (1) he does not know how the
tribunal directed itself on the two construction points and (2) he does not
know what conclusion the tribunal reached as to the amount of income deriving
from the agricultural unit.
In view of the
finding of fact that the appellant mainly worked on the holding concerned and
on his other land, it seems difficult to believe that the tribunal could have
found that there was no income derived from the land. If they had so found,
then one would clearly have expected a finding of fact to that conclusion.
Apart from the
common law requirement — to which I shall come in a moment — the Agricultural
Land Tribunals (Rules) Order 1978 (SI 1978 no 259) specifically requires that
the decision of the tribunal shall be given in writing together with a
statement of the tribunal’s reasons for their decision.
On receipt of
the decision letter, which was sent on April 15 1983, the appellant, on April
28 1983, 13 days later, sent a request for a case to be stated under section 6
of the Act. That was not received until May 3 1983 by the tribunal.
There has been
some controversy as to whether the appellant’s request was signed timeously,
and some day examination of the not very happily drafted rule may be called
for. But, in this case, on June 28, the chairman, of his own volition, granted
an extension of time which he was clearly entitled to do under rule 37. Even
had he not done so, I would have done so myself, so there is no point in my
burdening this judgment with any consideration of that rule and its drafting.
A draft case
was settled by counsel, who properly left a space in their draft for the
tribunal to refer to the evidence which they accepted or rejected and/or to
make such findings of fact as they arrived at. Unhappily, the tribunal did not
respond to this implied invitation. It did not refer to the evidence saying
what view they formed of any of the witnesses or make any of the findings of
fact to which I have referred and which, evidently, needed to be made.
The
deficiencies of the decision letter led to counsel for the appellant drafting
the questions of law in the case in a not very satisfactory way because each
one, in effect, refers to the evidence before the tribunal. Had the decision
letter contained what it ought to have contained, then that mistake would not
have been made and
the questions of law.
However, I
gave Mr Pryor leave to amend the case, so as to exclude from para 11 references
to the evidence adduced to the tribunal. But even with that amendment, it does
not seem to me to be possible for me to answer the questions because I simply
do not have the material upon which I could do so.
True it is
that I could either generally, or on the basis of hypothesis, say what, in my
judgment, should be the correct construction and application of the statutory
provisions, in particular those relating to livelihood and material extent. Mr
Pryor requests me to do that, but I do not think I ought to. It is very dangerous
to make general pronouncements as to the law in the absence of the specific
facts of the case. In this case I think it would be wrong, until I know what
the relevant findings of fact are, to make any such pronouncement.
To conclude
the history of the matter, the appellant decided to try to add another bolt to
his locker by seeking, in addition to relief by way of appeal by way of case
stated, an application for judicial review. On consideration of the documents
alone, which included in the solicitor’s affidavit the fact that there was an
appeal by way of case stated, he got leave. Suffice it for me to say that on
the plain authorities, this was a case where the only proper method of
challenging the decision of the tribunal was by way of case stated and that
this was not a proper case for a review of the tribunal’s decision under the
provisions of Order 53.
What am I to
do? In my judgment, the statement of
case is quite unsatisfactory and I am unable to answer any of the questions
which are posed in the case itself. As to what I am to do, I gain considerable
support from the judgment of Sir John Donaldson when he was President of the
Industrial Court in Alexander Machinery (Dudley) Ltd v Crabtree
[1974] ICR 120.
That was an
appeal from the industrial tribunal, sitting in Birmingham. It was an appeal
from their decision that an employee had been unfairly dismissed on the ground,
among others, that the decision was contrary to the weight of the evidence. The
tribunal, in accordance with the practice of that court, gave their reasons.
Perhaps it would be helpful if I set out the reasons as they appear in paras 1
and 2 of that tribunal’s decision.
1. We are
satisfied first of all that the reason for his dismissal was that the
[employers] thought that [the employee’s] performance as a salesman was
inadequate but we have not before us sufficient information to satisfy us that
that conclusion was justified. For instance we have had no comparable figures
of the sales of other representatives in relation to their target figures. We
are not satisfied that [the employee’s] failure to reach his target figure was
not due to the circumstances of the recession in the machine tool industry
which was at the relevant time shortly before [his] dismissal in April 1973 in
a very bad way indeed. We note that the [employee’s] area was changed and so
for a time were the sales lines which he was handling, and finally at the time
of his final dismissal he was not given any opportunity to give any explanation
or to state his case.
2. In all the
circumstances the [employers] have not satisfied us that they were justified in
coming to the conclusion that his performance was inadequate and bearing in
mind the provisions of section 24(6) of the Industrial Relations Act 1971,
namely, that the determination of the question whether the dismissal was fair
or unfair having regard to the reasons shown by the employer shall depend on
whether in the circumstances he acted reasonably or unreasonably in treating it
as a sufficient reason for dismissing the employee, shall be determined in
accordance with equity and the substantial merits of the case. As we hold that
the [employers] have not satisfied us that they acted reasonably in all the
circumstances we hold that the dismissal was unfair.
Sir John Donaldson
dealt with those reasons in this way. In my judgment, what he said is
peculiarly applicable to the facts in this case. He said:
A number of
points have been taken in the notice of appeal in relation to those paragraphs.
Some depend upon a submission that the decision was contrary to the weight of
evidence; some deal with the burden of proof. We have decided that these
paragraphs ought to be expanded and we propose to remit the case to the
tribunal in order to enable them to do so. We have already said that it is
unsatisfactory and amounts to an error of law for a tribunal simply to state
the amount of compensation which is to be awarded without showing how that
figure has been arrived at: see Norton Tool Co Ltd v Tewson
[1972] ICR 501. The basis of this proposition is that in the absence of reasons
it is impossible to determine whether or not there has been an error of law.
Failure to give reasons therefore amounts to a denial of justice and is itself
an error of law.
In the
present case it is clear that the whole argument which the employers wish to
address to us depends upon the tribunal’s evaluation of the evidence relating
to the reasons for the employee’s dismissal and the reasonableness of the
employers’ conduct in all the circumstances in dismissing him on the basis of
those reasons.
Pausing for a
moment there; it seems to me that that is particularly applicable to this case
because, as I have already said, it is impossible to attack the decision as
wrong in law when one does not know either how they directed themselves in law
or, more importantly, how they dealt with the evidence and the facts adduced
before them.
The tribunal
said that they were not satisfied with the reasons set out but gave no detailed
explanation of why they were not satisfied.
Whilst there
can be no appeal from findings of fact, the absence of evidence to support a
particular finding is an error of law. Similarly a finding of fact or a refusal
to find a fact will involve an error of law if the finding or refusal is a
conclusion which no tribunal, properly directing itself, could reach on the
basis of the evidence which has been given and accepted by it. I stress the
word ‘accepted’ because it is important that tribunals, in reaching findings of
fact, should set out in substance what evidence they do or do not accept.
When the
matter is reconsidered by this tribunal, no further evidence should be called,
but the parties will be entitled, if they wish, to elaborate their contentions
based on the evidence which has been given. We trust that the tribunal will
record those contentions and make all necessary findings of fact in relation to
them. The tribunal should also state briefly, if appropriate, why they find or
do not find a particular fact — stating, for example, that they are not
satisfied in relation to the evidence given by a particular witness, or that
they are satisfied, and so on. It is impossible for us to lay down any precise
guidelines. The overriding test must always be: is the tribunal providing both
parties with the materials which will enable them to know that the tribunal has
made no error of law in reaching its findings of fact? We do not think that the brief reasons set
out here suffice for the purpose.
He then dealt
with another matter and concluded:
For those reasons
we remit the case to the tribunal in order that they may elaborate their
reasons in accordance with the considerations which we have sought to set out
in this judgment.
What I am
going to do in this case is precisely what Sir John Donaldson did in that case.
Under the powers of Order 56 rule 11, I am going to order that the case be
returned to the tribunal for amendment in the way in which I hope I have
clearly indicated. I cannot do better than add to my order the precise
requirements set out in the judgment of Sir John Donaldson, particularly in the
paragraph where he deals with what should happen when the matter is
reconsidered by the tribunal.
I would only
add that in this case, the parties will be entitled, if they wish, not only to
elaborate their contentions based on the evidence which has been given but also
to reiterate and, if thought necessary, expand their submissions on the points
of law raised by the requirement of construing the statutory provisions.
But for that
slight addition to what Sir John Donaldson said, I would direct the tribunal in
this case precisely in the same terms. The case will be submitted to the
tribunal in that way.
No order for costs except in so far as respondent’s
costs were caused by the application for judicial review, in which case they
would be taxed and paid by appellant.
