Like the T-1000 in the Terminator series Colin Souter keeps coming back for more.

I previously blogged about the exchange of views between myself and Mr Souter published at Scottish Legal News. Whilst the original topic had been Crofting VATgate, Mr Souter had turned this into an attack against me providing legal advice to Upper Coll Common Grazings (before the former committee were removed from office by the Crofting Commission).

I responded to those attacks although I had already done so elsewhere with my previous comments simply being ignored by Mr Souter as though they were never written.

Once more that is the approach adopted by Mr Souter in his latest (and last) letter published by Scottish Legal News yesterday. “Last letter” in that Scottish Legal News have not surprisingly now closed debate between me and Mr Souter through their pages.

Whist Scottish Legal News have understandably brought the debate to an end through their own pages I will continue it here as there is a need to correct the misleading statements, once more, made by Mr Souter. I will, as I have done before, quote sections of Mr Souter’s letter (in italics) with my analysis following each section:-

I note Mr Inkster has shared another article published on Scottish Legal News. I have no intention of inflicting this debate upon your readers as a series of articles but will merely address what I believe to be THE crucial point, missed from all of his recent writings.

The Common Grazings is about ALL the shareholders and NOT the Committee. When a Committee takes it upon itself to make decisions, other than those relating to the maintenance of the Common Grazings, without reference to shareholders, it loses its mandate…..and its credibility. I have never disputed the rights of any individual to seek professional legal advice, nor would I do so. The point which I hope will not escape readers attention is that the Committee, in accessing and spending money which belongs to ALL shareholders, has exceeded their authority, if it does not first seek shareholder approval for that spend. And that is the case, as shown in the Minute Book.

The former committee have always maintained that their meetings were open to all shareholders and decisions were not taken in isolation. They were recently reported as stating:-

“The constable seems unable to understand that in the spirit of openness and transparency over the years in Upper Coll, all meetings were advertised and open to all shareholders, that all decisions were taken by the majority of those attending and that all these decisions were minuted.”

I imagine that the former committee would normally have had meetings with much more than 4 shareholders in attendance (that being the number of shareholders out of a total of 42 that Mr Souter proceeded to conduct business with on Tuesday night).

Mr Souter has taken many decisions on his own account without any recourse to shareholders: obtaining the Opinion of a QC on VAT matters via the Crofting Commission; writing to HMRC querying the right of common grazings (anywhere it would seem and not just Upper Coll) to be VAT registered; writing to numerous parties including myself concerning various spurious matters with insinuations and threats; meeting with Western Isles Council over matters decided by shareholders 8 years or more ago; seeking to involve the Crown Office & Procurator Fiscal Service in undisclosed matters.

In all the accusations about shareholders not being consulted over matters has Mr Souter ever thought to actually ask shareholders whether or not they approved decisions previously made?

If any didn’t (I doubt if there would be many decisions, if any, that would fall into that category) then that would be a matter for any such aggrieved individual shareholder to pursue (if excluded illegally from a decision making process that should have legally included them).

This is not something that Mr Souter can pursue in any way on their behalf. He is deluded in the extreme if he thinks he has such power even were his appointment a legal one.

As a continuing course of conduct, failing to consult and seek approval from the wider body of shareholders serves only to undermine the relationship between the Committee and the shareholders. The resulting friction and rift that has opened up over time, can be traced back to an evident lack of willingness on the part of the Committee to consult, seek and record shareholders views to support Committee activity. My conclusion follows a simple analysis of the records of the Grazings, including the Minutes of meetings of both the Committee and of ordinary shareholders. Doubtless, Mr Inkster will challenge the validity of my conclusions. I can only say, on a factual point, that I am better positioned to comment by virtue of possessing the historical Minute Book, which is the place where you would reasonably expect such detail to be entered. Even disregarding the official Minute Book (and why would you?), there is the evidence offered by shareholders themselves at more recent shareholder meetings, confirming my own conclusion.

Again Mr Souter’s conclusions “follows a simple analysis of records” and not what the shareholders say the position actually was. His reference to “the evidence offered by shareholders themselves at more recent shareholder meetings, confirming” his “own conclusion” can immediately be dismissed on the basis that this is what 4 out of 42 shareholders may have told him. I understand that those 4 shareholders did not often attend shareholders meetings although it was of course open to them to do so.

The irony is that Mr Souter keeps saying that all shareholders should be consulted yet he is holding meetings with just 4 shareholders and making decisions that affect all shareholders (sometimes without any meetings at all) when he knows that at least 26 out of 42 shareholders (i.e. a clear majority) do not support him or his actions.

All parties involved have a duty to act responsibly and engage positively to help move towards a point of resolution. The most recent meeting of shareholders on 13 September saw fit to vote and unanimously support my activity in office to date, and a series of continuing actions outlined by me, to the meeting, as just one of a number of votes that took place. Many present stated this was the first opportunity they had had in recent years to vote on matters and hoped it was a sign of things to come. Shareholders also voted on a new set of Grazings Regulations, consulted upon over the last three months and once endorsed by the Crofting Commission will, I believe, go some way to improving the framework under which the grazings operates.

Again Mr Souter omits the all important numbers and actual facts as though they do not exist. The unanimous support he refers to amounts to possibly only 4 out of 42 shareholders. Mr Souter was presented with a petition by 26 out of 42 shareholders which reads:-

“I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.”

The “many present” is possibly a maximum of 4. Their “first opportunity” may possibly be because it is the first time they have chosen to attend a shareholders meeting.

Mr Souter was critical of me before for not divulging numbers of attendees at a meting called by shareholders when I didn’t actually know the numbers. In that case he claimed “9 out of 42 shareholders was never a majority“. He knows the numbers in this instance and so perhaps it is he who is now painting “a rather disingenuous picture“? Especially when 4 out of 42 is certainly nowhere near a majority. But 26 out of 42 is.

Mr Souter was also of the view that those who didn’t attend meetings called by the shareholders were “voting with their feet“. On 13 September there were 11 shareholders who actually walked out on his meeting. That is voting with your feet if ever you saw it. If you follow Mr Souter’s view on shareholders meetings and actual support then 38 out of 42 shareholders voted with their feet on 13 September against Mr Souter. He must therefore accept, by his own reasoning, that he has no mandate at Upper Coll.

It is a matter for regret that Mr Inkster has failed to correspond with me, to answer my query and to confirm the existence (and provide a copy) of his letter of engagement, for review by Upper Coll shareholders. His claim that I am “illegally appointed” has been rejected by the Crofting Commission in their letter to shareholders of 8 September. It is simply his opinion on the matter but I nevertheless defend his right to hold that opinion.

Mr Souter yet again completely ignores the fact that I have in fact responded to his letters by way of a seven page letter copied to him but directed to his ultimate employer, the Scottish Government. After all Mr Souter does declare on his LinkedIn page that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity“.

If I take issue with his behaviour in correspondence issued by him to me, as I do, then I am well within my rights to take that behaviour up with his employers, as I have done. That is certainly not a failure to correspond.

I clearly cannot provide someone who has not instructed me with information provided to someone who did! The Law Society of Scotland would have something to say about any solicitor being persuaded to unethically do so.

My opinion that Mr Souter has been illegally appointed is shared by others and indeed rather ironically reflects the policy adopted by the Crofting Commission but mysteriously departed from by them, contrary to legal advice presumably received by them, on at least three occasions.

Any challenge on the question of the legality of the appointment of grazings ‘constables’ to the Crofting Commission has been met by a simple assertion that as it was a “final decision” of the Commission it is one that cannot be revisited by them. Even although they are unable to show where in law it is stated that they cannot revisit decisions and this is something they have been seen to do on other occasions!

Thus, in effect, the Commission are saying that they may well have made an illegal decision but they have no power to reverse or change such an illegal decision!

Should he wish to press the matter further, then he is clearly aware of the legal process to follow.

Indeed I am, which is more than the Crofting Commission appear to be aware of.

The continual misrepresentation of the situation in the press by disaffected former Committee members and the media profile enjoyed along with their followers, is a matter of ongoing disappointment. For my own part, I will continue to invite all shareholders to participate at official meetings and contribute positively to the future of their Common Grazings.

From the other side of the fence the misrepresentation is clearly on the part of Mr Souter and the Crofting Commission. A reading of this latest letter from Mr Souter alone taken together with my responses thereto is evidence enough of that.

Given the nature of the ongoing dispute, this article does not reflect the views of all Upper Coll shareholders.

Indeed. It may possibly reflect the views of 4 out of 42 of them.

Brian Inkster

Image Credit: T-1000 in Terminator: Judgment Day © Carolco Pictures; Pacific Western Productions; Lightstorm Entertainment; Le Studio Canal+ S.A.