by OUR COURT REPORTER
A Borders family who claim to have been defrauded of millions of pounds after their property was 'stolen' by bankrupt businessman Martin Frost will appeal a judgment ordering them to leave the farms they have worked for 60 years.
The Orrs, of Sunwick Farm in Berwickshire have failed in a bid to overturn a sheriff court decree in favour of UK Agricultural Lending Ltd. [UKALL] a finance company owed £3.25 million after Sunwick and Harcarse Hill farms were used as standard security for a loan.
It has been alleged the cash was used by Mr Frost to fund the failed Avocet Group of Companies, and that he defrauded the occupants of Sunwick after marrying one of the family, Janet Orr. Avocet shareholders have since complained to Police Scotland that Mr Frost had misappropriated their investments for his own use.
In a Court of Session judgment, Lord Braid has upheld the original plea by UKALL for possession of Sunwick while rejecting the case advanced by Alexander Orr and his mother Aileen that Alexander held a valid lease for the farm.
But Aileen Orr, a member of Scottish Borders Council who represented the family in court, told us this was not the end of the road, and there would be an appeal "based on fresh evidence".
Lord Braid states: "This commercial action arises out of a series of transactions which the pursuers (the Orrs) aver were part of an allegedly fraudulent scheme orchestrated by one Martin Frank Frost against them and the wider Orr family culminating in the theft (as the pursuers would have it) and imminent loss of the family farm which they have farmed for over 60 years."
The original decree, granted to UKALL in Jedburgh Sheriff Court in 2022 followed an action brought by it against Orrdone Farms Ltd (in administration) (previously known as Avocet Agriculture Ltd). That decree, it appears required Orrdone Farms Ltd, and its sub-tenants, dependants and others deriving a right to occupy the premises from it, to remove from Sunwick Farm and Greenwood Farm.
"The farm is occupied not by Orrdone Farms Ltd but by the pursuers, who also seek interdict preventing the defender from removing them from the farm, on the strength of averments that Alexander Orr is the lawful tenant of the farm by virtue of a lease granted in his favour dated 20 September 2016.
"The defender maintains that the lease is a sham and has either been fabricated so as to delay the pursuers’ removal, or at any rate, was never intended by either party to it to have legal effect; failing which, that despite the use of the term “lease”, it is not a lease under Scots law; and moreover, that it was entered into in bad faith."
According to Lord Braid, Mr Frost introduced himself to the Orr family in about 2012 having been aware of litigation in which they had been involved. He offered to help them.
"He subsequently became romantically involved with the sister of Duncan Orr Senior and Andrew Orr (the now-deceased husband of Aileen Orr, and father of Alexander), Janet Orr, whom he married. At some stage he established a business under the “Avocet” banner, the precise nature of which remained unclear on the evidence, but involved innovative fuel technology for which Mr Frost claimed to hold valuable intellectual property rights. The precise extent to which the Orrs had a financial interest in that business is unclear. "
In November 2015, at the instigation of Mr Frost, a the family purchased Harcarse Hill, a small farm 'but one with a very desirable farmhouse, for the use/residence of Mr Frost and his Avocet business', at a price of £1.2 million.
The loan to pay for Harcarse Hill was later re-financed by UKALL. The arrangement was changed to facilitate a £3.25 million loan to Avocet Agriculture, a company controlled by Mr Frost The Orrs maintain they were unaware of the true position.
Lord Braid's judgment reveals that UKALL has raised actions for payment against Duncan Orr Senior, Duncan Orr Junior, Alexander Orr and John Orr, founding on the guarantees granted by those individuals in respect of the loan to Avocet Agriculture Ltd. But those actions are all defended on the grounds that the guarantees were fraudulently obtained, and are presently due to proceed to proof in April 2025.
The Orrs claimed that the purported signatures of Andrew Orr and Duncan Orr Senior on the original standard securities were forged, and that the loan was not received by Hamilton Orr Ltd., a company with family connections.
But the judgment concluded there was insufficient evidence that the Orr signatures were forged
"There are aspects of the transaction which raise suspicions (as does the subsequent name change of Avocet Agriculture Ltd to Orrdone Farms Ltd, signifying, as it does, that the Orrs have been 'done'; but that in itself is an insufficient basis upon which to find that a fraud was committed - it may simply indicate that they agreed to a poor bargain).
"However, I am unable, on the evidence, to conclude that the transfer of the property to Avocet Agriculture Ltd was a fraud perpetrated on the Orrs by Mr Frost. The fact is that the circumstances do not come close to establishing that substantial justice requires the sheriff court decree to be reduced; they point in the other direction - that justice requires the decree to remain intact and enforceable".
The judge said Mrs Orr indicated that in the event the family members were unsuccessful they would wish to stay on the farm until the police investigation was completed.
"That would not be appropriate but I will be sympathetic to a motion that the pursuers be afforded a reasonable period to make an orderly removal from the farm and to make arrangements for their livestock to be moved elsewhere."
A defiant Aileen Orr said: "There will be an appeal. The farming community will be thinking Sunwick is for sale now. It isn't".
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