NOTE
(Expenses – Additional Fee)

Emms v Stewart and Keeper of the Registers

[1] This appeal under Section 25 of the Land Registration (Scotland) Act 1979 has been settled extra-judicially after periods of sist for negotiations. A Joint Minute executed by the appellant, the respondent (who was actually the opponent with the opposing interest) and the Keeper (designed in this case as the “Interested Party”), reflects agreement that the respondent’s registered title is to be rectified. It is further agreed that the Keeper is to be liable to the appellants as taxed by the Auditor of the Court of Session, with sanction for the employment of junior counsel, but otherwise no expenses are due to or by any party. The appellants now seek an additional fee having regard to the factors specified in Act of Sederunt (Rules of the Court of Session 1994), Rule 42.14(3)(a), (b), (e) and (g).

[2] Although the case was sisted for substantial periods, the application and Answers were adjusted in some detail, and the Tribunal accordingly has quite detailed pleading, in addition to the written submissions on this motion, before it. The motion has not specified the extent of the uplift sought and it appears that although the appellants refer to an uplift of 150% they are content that if the motion is granted, this should be left to the Auditor. This appears to the Tribunal appropriate in this case, where there was no hearing before the Tribunal, and also particularly because there appears to the Tribunal to be this slightly unusual element in this case, that the appellants have agreed not to seek expenses from the respondent, the true opponent, while seeking not only expenses but an additional fee from the Keeper. The Auditor will apparently have to consider, and will be in a better position to consider, any resultant issues which may arise about allocation of the appellants’ expenses. It is not, however, suggested that any of this stands in the way of consideration by the Tribunal whether any or all of the factors set out in the Rule and referred to in the motion should lead to allowance of an additional fee.

[3] The appellant’s complaint was that the Keeper wrongly included in the respondent’s registered title a strip of ground which had previously been the subject of a “Section 19 agreement” between them and the respondent’s predecessors, resulting in inaccuracy in the respondent’s registered title and subsequent refusal to rectify. The contention of inaccuracy was resisted in the pleadings by the respondent. The Keeper, however, came to accept in the pleadings that there was inaccuracy, leaving issues in connection with possession.

[4] On consideration of the competing written submissions, the Tribunal has reached the view, in this case, that factors (a) and (g) do justify a modest additional fee; but that factors (b) and (e) would not do so. Accordingly, the motion will be granted.

(a) “the complexity of the cause and the number, difficulty or novelty of the questions raised”

[5] It appears to the Tribunal that this was a complex case; quite a number of questions were raised; some of the questions were difficult; and some appear to have been novel. In opposing the motion, the Keeper argues that the issue was no more complicated than in other Section 25 appeals where possession has been in dispute and the case was “no different from other section 25 appeals” and that the Keeper made her position on indemnity clear to the appellants’ agent at an early stage, this apparently a reference to the possibility of indemnity payable to the appellants. Reference was also made to the appellants’ instruction of counsel and the agreement on sanction for counsel.

[6] The issue is not the complexity of this case in comparison with other Section 25 appeals, but in comparison with the ordinary run of Court of Session litigation. There are relatively few Section 25 appeals. We are far from saying that they are all complex, but they certainly can be. There is slightly more guidance from reported cases than may be indicated in the appellants’ list of difficult questions which arose, but the issues of inaccuracy – which was in dispute in this case – and possession can be complex and difficult. Possession can be, and in this instance appears to have been, very fact-specific, making every dispute different. That does not make all disputes complex, but in this case reference to the pleadings (for convenience, the appellants’ pleadings as adjusted in December 2010 may be taken) reveals, in the Tribunal’s view, substantial complexity and quite a number of different questions related to both inaccuracy and possession. The position about the agreement with the respondents’ predecessors (said by the respondents to be a “purported” agreement which would not affect their position) appears novel (and indeed appears to have caused the Keeper some difficulty). Then, as regards indemnity, the issue in this application does not appear to have related to any claim by the appellants (which would come later, if necessary) but to an argument that, if they were found to be in possession, the respondents would not be prejudiced by rectification. That again is a difficult, if not novel, question. We do take into account the instruction of counsel, but it seems to us that the pleadings in this case do reveal a high level of complication for the legal representatives involved.

[7] In these circumstances, the Tribunal considers that both parts of the test indicated in (a) are satisfied in this case.

(b) “the skill, time and labour, and specialised knowledge required, of the solicitor …”

[8] This factor appears to us to focus attention on the solicitor involved, in the situation where counsel is instructed. Something different from complexity must be required. Section 25 appeals do call for skill and specialised knowledge, but the question is whether, where counsel is instructed, these are involved to a sufficient degree to merit an additional fee. It is not suggested that the solicitor drafted the pleadings, the difficult stage of preparation for a hearing had not been reached, and we do not feel that there is sufficient indication of this factor to set this case apart in this respect from the ordinary run of work of litigation solicitors.

(e) “the importance of the cause or the subject-matter of it to the client”

[9] We are also, as a matter of degree in comparison with other litigations, not satisfied under this head. The dispute was clearly important to the appellants, but we are not sure that the fact that the problem had persisted for many years adds to this factor. We have the impression of an irritant, no doubt a very considerable irritant, in the appellants’ farming business, and we do not think that this is sufficient under this head.

(g) “the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing”

[10] These are alternatives. We are satisfied, from the appellants’ submission, which derives a degree of support from the Tribunal’s correspondence file, that the appellants and their solicitors were throughout intent on trying to achieve agreement. The appellants are correct to leave out the references to settlement attempts prior to raising the application, and we do not accept their contention that those prior matters make it “equitable that an additional fee be granted for the recoverable period”. It seems clear, however, that the respondents, with their solicitors, were actively involved in trying to resolve matters during both the two sists, and of course the attempts were successful.

[11] There appear to be three strands to the Keeper’s opposition under this factor. Firstly, it is argued that the extent of steps taken did not take this case out of the normal range. Secondly, it is suggested that the appellants might have taken one further step, viz. instruction and/or disclosure of a valuation report. Thirdly, there is a reference to the Keeper’s own eventual agreement to rectification. This is not an easy factor for us to judge, and it is particularly appropriate that the Auditor, who will have more material available to him, should assess the degree of uplift appropriate, but our impression is that the appellants have throughout been doing what they could to bring about resolution, as was eventually achieved. Reference to this factor in Rule 41 apparently reflects a policy of encouraging such activity, recognising that it can have the effect of considerably reducing expense overall. This should be no less so where the party who has raised the proceedings is in effect working for acceptance of the claim made. In the particular, difficult, context of a dispute of this nature, we think that this case is properly brought within this factor.

Extent of Uplift

[12] As we have indicated, this is to be left to the Auditor, on the basis of the two grounds upheld. We are, however, somewhat surprised by the appellants’ references to “at least 100%” and “150%”. The appellants will have an opportunity to persuade the Auditor of these levels, but for our part, on the basis of what we can see of this case, we would have been looking at a very much lower figure.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 8 June 2012

Neil M Tainsh – Clerk to the Tribunal