Ganley v Jones

An agricultural letting may constitute a tenancy from year to year even if livestock is periodically removed or the owner enters to maintain the land. The arrangement’s legal character is determined at inception. Temporary interruptions do not establish a revocable, non-exclusive grazing licence where the evidence shows exclusive yearly possession for rent.

A dispute about whether the grazing-period exception in section 2(3) of the Agricultural Holdings Act 1986 applies is a question for the courts, not a dispute about the operation of section 2 requiring arbitration. Mental incapacity requires inability, because of mental impairment, to make the relevant decision. Poor decisions and procedural default do not by themselves establish incapacity.

The appellant owned land with her late partner, who in 1989 agreed with the respondent’s father that sheep could graze a defined area for an annual payment. The respondent later claimed an agricultural tenancy, possession and damages. After an earlier default judgment was set aside, the appellant’s defence was struck out for failure to comply with a pre-trial checklist, and the county court declared that the respondent held a tenancy from year to year.

The appellant sought an extension of time and permission to appeal. The issues concerned jurisdiction and statutory arbitration, mental capacity and the need for a litigation friend, the refusal to adjourn the trial, and the delay in appealing.

1. Application refused. The court declined to enlarge time for appealing and therefore did not grant permission for the proposed appeal.
2. The evidence established that, at inception, the arrangement was a letting from year to year for £300, giving the respondent’s father the right, to the exclusion of others, to graze sheep on defined land. Periodic maintenance or clearance by the owner, and temporary removal of the sheep, did not alter the legal character of the holding. The suggested revocable, non-exclusive licence was unsustainable.
3. There was therefore an agricultural tenancy within section 1 of the Agricultural Holdings Act 1986. Section 2 was unnecessary. Alternatively, if the temporary breaks meant that the arrangement was initially for less than a year, section 2(2) would deem it a yearly tenancy unless the specified-period grazing exception in section 2(3) applied. Whether that exception applied was a dispute about the application of section 2(3), not its operation within section 2(4), so the county court retained jurisdiction. The court applied Goldsack v Shore [1950] 1 KB 708.
4. The court assumed, without deciding, that depression-induced paralysis of the will could fall within section 3(1)(c) of the Mental Capacity Act 2005. The medical evidence nevertheless did not show that, between mid-2008 and January 2009, the appellant was unable to understand, retain, use or weigh information about the litigation because of mental impairment. Poor decisions and the later appointment of a litigation friend did not establish incapacity at the material time.
5. The trial judge had not adequately evaluated the procedural default under rule 3.9 of the Civil Procedure Rules. The pre-trial checklist had no substantive effect, and the judge had not sufficiently considered the onerous diary-disclosure order, its effect on the defence, or a short adjournment. However, the approximately 20-month delay in appealing was inadequately explained, and the proposed appeal was highly unlikely to produce a different result. An extension was therefore unjustified.

• Court of Appeal (Civil Division): The application to enlarge time and obtain permission to appeal was refused.
• Cardiff County Court: HHJ Milwyn Jarman QC declared that the respondent held an agricultural tenancy from year to year and made orders for possession and damages after the appellant was debarred from defending.