NOTE
(Expenses)

James Miller and Another v The Keeper of the Registers of Scotland and Others

[1] This was an appeal under Section 25 of the Land Registration (Scotland) Act 1979. The appeal was, however, withdrawn shortly after the Keeper and the interested parties lodged Answers, those of the Keeper being really only formal and those of the interested parties setting out reasons why, they submitted, the appellants’ case was “completely without foundation, is lacking in any specification or meaningful detail and should accordingly be refused.” The Interested Parties now seek an award of expenses; and, further, seek expenses on the higher, “solicitor and client” basis rather than the normal, ‘party and party’ basis.

[2] In summary, the Tribunal has decided:-

(i) the interested parties are entitled to the expenses incurred in lodging Answers to this appeal;

(ii) however, those expenses should be on the normal, “party and party” basis, and not on the higher, “solicitor and client”, basis claimed.

[3] Rule 28 of the Lands Tribunal for Scotland Rules 2003 gives the Tribunal power to award expenses in the same manner as in court proceedings. Apart from some particular situations (none of which arises here), this is, generally, the same discretion in relation to expenses as in ordinary courts. Rule 28(1) provides: “… the Tribunal shall deal in such manner with expenses as in its discretion it thinks fit.” This discretion, however, is usually exercised in accordance with the general principle that “expenses follow success” because the party who is unsuccessful must normally be taken to have caused the expense to the successful party. Where proceedings, such as this appeal, have been commenced and then withdrawn, generally the party against whom they have been raised will be regarded as successful and entitled to any expenses incurred before the proceedings were withdrawn. In such cases, the Tribunal of course has not considered who was right and who was wrong, but has to proceed on the basis that the appellants have failed to establish their case. It is clear in this case that although the appeal was technically against a decision of the Keeper of the Registers, the interested parties, who apparently have a registered title covering a disputed area of land, were the real opponents and were entirely justified in entering the proceedings and lodging Answers. Having considered all that the appellants have submitted in relation to this matter, the Tribunal can find no reason to depart from the general rule and must find the appellants liable to the interested parties in such expenses as have been incurred in these proceedings, i.e. the expense associated with lodging Answers.

[4] Normally, court expenses (and the Tribunal is no different in this) are awarded on set scales for court expenses, in this case the Sheriff Court Table of Fess (“party and party” expenses). In this case, the interested parties have claimed expenses at the different, almost certainly higher, level of “solicitor and client” expenses, i.e. based not on the court scale but on the level which a solicitor would, apart from the restrictions in that scale, be entitled to charge the client.

[5] Guidance on the principles applicable where such a claim is made was summarised by Lord Hodge in McKie v Scottish Ministers 2006 SC 528, at 530. After indicating that the court had a discretion which scale to award and that normally awards were on the “party and party” basis, Lord Hodge said this:-

“But, thirdly, where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. Fourthly, in its consideration of the reasonableness of a party’s conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party’s behaviour before the action commenced, the adequacy of a party’s preparation for the action, the strengths or otherwise of a party’s position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example to progress or delay the resolution of the dispute.”

[6] This appeal was based on the appellants’ claim that in registering the interested parties’ title, the Keeper had extended a boundary by some 32 metres and thus given a portion of the appellants’ land to the interested parties. Apparently, their properties had been under one title which was split, the appellants’ contention being that when, later, one of the titles (the interested parties’) was for the first time registered, the boundary was put in the wrong place. It seems that both the Keeper and the interested parties rejected that view and there might also have been other issues in relation to possession, etc., under Section 9 of the 1979 Act.

[7] The argument for ‘solicitor and client’ expenses, in summary, is that the appellants had been repeatedly called upon to obtain independent legal advice but apparently only did so after submissions were lodged in answer to their appeal. They had raised the proceedings without making certain that they had a stateable case and acted unreasonably.

[8] Put shortly, the appellants, who were not represented in lodging this appeal, contend that they had indeed previously had legal advice which had, at least to an extent, supported their basic position on the titles, but having already incurred substantial expense they decided to apply themselves to the Tribunal. After Answers had been lodged by the Keeper and the interested parties, the Tribunal’s Clerk had (as is sometimes done, particularly where a dispute of this kind can have considerable legal complication) advised the appellants to seek legal advice and referred to possible expenses implications. The appellants, who are apparently pensioners without substantial means, subsequently took advice from another solicitor who made them clear as to the difficulty of representing themselves and the cost implications. They then withdrew the appeal (although they had submitted further material in response to the answers shortly before withdrawing).

[9] The Tribunal cannot of course know the details of the advice given to the appellants before they raised these proceedings. It is no doubt unfortunate that they only finally decided not to pursue this appeal after the interested parties incurred the expense of lodging Answers. However, advice at that stage of course had the benefit, not previously available, of having seen the answers which had been lodged in the appeal. It seems very clear that the appellants genuinely believed, and still, believe that the Keeper made a mistake. There can be disputes where an area-based Sasine title description is translated onto the map-based registration system. Most significantly, the appellants accepted the Clerk’s advice to seek legal advice and then accepted that legal advice and withdrew the appeal. Whatever can be said about the raising of these proceedings, they were not dragged out incompetently or unreasonably. Considering all the relevant circumstances, we do not consider that the higher level of expenses is justified in this case.

[10] The interested parties will receive their expenses on the normal basis. These are only the expense incurred in response to these proceedings, and, hopefully, they might be agreed without the need for the further expense of formal “taxation” by the Sheriff Court auditor.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 April 2012

Neil M Tainsh – Clerk to the Tribunal