1. This Note deals with a motion for expenses on behalf of the applicant following a debate and our Opinion of 17 April 2020. The respondents had made submissions attacking the relevancy and specification of the application. We refused the respondents’ motion for dismissal and for deletion of certain averments. We have allowed the case to proceed to a full evidential hearing, which shall be heard in due course.
2. We would deal with the motion for expenses on the basis of written submissions. The applicant has moved for the expenses of process from 11 July 2019 being the date when the respondents had sought a procedural hearing to determine further procedure, to date, according to the Table of Fees payable in the Court of Session. He also sought sanction for the employment of senior counsel. The respondents had submitted a note of argument with proposed arguments for debate. The applicant had instead sought an evidential hearing. A procedural hearing was held on 25 September 2019 at the instance of the respondents, and the debate was fixed. Having succeeded at debate the applicant submitted he was entitled to expenses from the date when the respondents sought the procedural hearing.
3. Detailed written submissions on expenses were received which we would summarise as follows:
4. The respondents submitted that they had sought a procedural hearing and debate on the basis that the second applicants did not have title and interest to seek compensation, and the various heads of claim had been unsupported by relevant averments. The applicant had sought an evidential hearing but also significant periods of adjustment. The Tribunal had noted at the procedural hearing that while basic facts were not in dispute, there were important legal issues that might usefully be determined prior to a full hearing. In an adjustment period following the procedural hearing but prior to the debate, the applicant removed two heads of claim and also removed the second applicant from the claim. The insertion of the second applicant as a party was an error, as in effect conceded by the applicant at the procedural hearing. The procedural hearing had been necessary and justified, and as a result of the position taken by the respondents a number of issues had been resolved.
5. The respondents also pointed out that the applicant had argued at debate, and on paper, that the Pointe Gourde principle was not applicable. In summary it was not appropriate for expenses to be awarded because:
a) The applicant had substantially adjusted his pleadings to deal with points raised by the respondents at the procedural hearing.
b) Expenses of adjustment would have been incurred whether or not there had been a procedural hearing; and
c) It remained to be determined whether the respondents’ arguments in relation to the Pointe Gourde principle would be determined in favour of the respondents as the Tribunal had not been persuaded by the applicant’s arguments that the principle could not be applied to the present circumstances.
The respondents had also been willing to fix a full hearing subject to a debate taking place first. The respondents did not oppose sanction for senior counsel.
6. The procedural hearing and debate had been fixed primarily on the basis of the respondents’ stance on the relevancy of the applicant’s claim. The applicant had offered a full hearing but this had been rejected and a debate and procedural hearing had been sought by the respondents. The applicant did not seek the costs incurred in adjusting to remove the second applicant and two ancillary heads of claim at this stage, but should be entitled to the expenses incurred in connection with the debate.
7. In relation to the question of title and interest of the second applicant, the applicant had emailed the respondents on 12 August 2019 explaining the position that the first applicant held the land in trust for the second applicant, the second applicant being a farming partnership. The involvement of the second applicant had not been an “error.” The applicant offered to remove the second applicant from the claim if the respondents accepted certain matters to the effect that the claim was not invalid for failure to include the second applicant. The respondents belatedly did not accept the position until the day of the procedural hearing, and thus the respondents could have dealt with the matter more expeditiously.
8. Although the applicant had accepted in email correspondence that the legal principles were contentious, that did not justify a debate. The respondents had introduced the question of the Pointe Gourde principle and the applicant had been required to respond. The applicant did so on a number of levels. At debate the applicant had not disputed the potential application of the Pointe Gourde principle as being part of the “value to owner” concept, but had questioned the identification of a scheme which was self-evidently best addressed in the context of evidence.
9. The main issue debated related to the respondents’ argument that the applicant had “put it out of his hands” the ability to deny access to the cable. The respondents’ note in seeking a debate had expressly sought dismissal of the application, which request was unsuccessful. The same outcome could have been achieved by the respondents accepting the applicant’s offer to proceed to a full hearing. It was also pointed out that the applicant was a private individual and there was a disparity of resources between the parties. Interest did not run on claims for compensation of the present nature. So the delay will have adversely affected the applicant.
10. We would apply the general rule that expenses should follow success. We think that “success” primarily requires to be assessed in terms of outcome. Neither party has argued otherwise in the light of any refinement of the rule applicable to compensation cases.
11. The applicant’s main position was that the case should be allowed to proceed to an evidential hearing, so if he has not been wholly successful in all the arguments he has at least been successful in the result. He has been entirely successful in avoiding dismissal of the application. We consider that is sufficient for him to be awarded the expenses of the debate.
12. We accept we did not uphold all of the applicant’s arguments on the application of the Pointe Gourde principle, on the basis that we considered it too early a stage to determine parties’ arguments on the matter. Nor did we uphold the respondents’ arguments on Pointe Gourde, for similar reason. However we bear in mind the fact that the respondents themselves have introduced the principle as part of their defence to the claim, and it was their position that the application should be dismissed at debate on account of application of the principle. In that context we think the applicant’s arguments can reasonably be seen as a response to that position. In these circumstances we do not think it appropriate to make any modification to the award of expenses for the debate.
13. We agree that the Court of Session scale of fees is appropriate given the potential value and complexity of the case, which point was not contested. We also accept that the case was appropriate for the employment of senior counsel.
14. We have some sympathy with the applicant in that ideally the procedural hearing could have been avoided on the question of title and interest to sue. Nevertheless, we think that the procedural hearing was a useful step in process, at least as far as the Tribunal was concerned, in order to gauge whether a debate had the potential to dispose of any or all of the applicant’s claims. We were assisted by both counsel at that hearing. It also has to be borne in mind that the picture changed somewhat following the procedural hearing, since perhaps recognising some force in the respondents’ arguments, the applicant deleted two heads of claim prior to the debate. So we do not think it would be appropriate now to make any award of expenses in respect of the procedural hearing or in respect of a particular period of the process generally. That can wait until the final outcome of the application.
15. We shall allow the applicant his expenses of the debate on the Court of Session scale. We sanction the employment of senior counsel. Failing agreement, the amount of expenses should be as taxed by the auditor of the Court of Session. Meantime we make no further order for expenses regarding any other part of the process.