NOTE
(Expenses)

Wendy Campbell-Gray v The Keeper of the Registers of Scotland and Michael Doherty and Deborah Wyton

1. This is a motion for expenses by the interested parties against the appellant in the light of our decision of 28 January 2015. Parties made brief written submissions. This note should be read in conjunction with our written opinion on the merits of the case of the above date .

2. The appellant concedes that an award of expenses will require to be made against her, but seeks modification on the basis that she was partially successful upon an issue which, it was submitted, the interested parties’ position was equivocal until the morning of the hearing.

3. The case involved a number of disputed areas of land, described as the yellow, red and green areas. In paragraph [63] of our opinion, we found that the appellant was not entitled to rectification of the register in respect of the red and green areas. We noted that it had been conceded that the appellant was entitled to rectification of the yellow areas to the extent these included the appellant’s cottage garden and its surrounding fence and wall; otherwise the appeal was refused.

4. The appellant submits that accordingly she was successful to the extent of rectification of part of the yellow areas. Reference was made to a letter by the interested parties’ solicitors of 6 March 2012 to the Keeper stating:-

“(Our clients) confirm that they do wish to maintain their right in respect of the area shown coloured yellow on the plan. We are told that this is a verge and ditch and lies, our clients believe, outwith Mrs Campbell-Gray’s boundary fence. Our clients require to ensure that the small area remains in their possession as it would severely hamper their carrying out any repairs to the road … Therefore, we would deduce from this further information that plainly the verge lies within the title of Fanan’s farm and not Mrs Campbell-Gray’s. Accordingly, our clients maintain their claim to the area shown coloured yellow.”

5. In answer 5 of the pleadings the interested parties stated:-

“(The Interested Parties) accept that an area of garden ground may have been registered in their title by mistake, but dispute the extent of the ground claimed. This particular disputed area is the area shown coloured yellow on print 1 produced by the Keeper.”

The appellant emphasised the word “may” in the above letter.

6. It was clarified at the beginning of the hearing that there was no dispute between the parties regarding any part of the yellow area comprising the garden wall, fence or area or garden. As we mention at paragraph [14] of our opinion, the Keeper’s plan A6 or print 1 is unclear as to the extent to which the yellow areas lie within the cottage garden or to which they comprise verge and ditch at the roadside.

7. We would point out that when a successful party has been awarded expenses generally, it is still possible for his opponent to argue before the auditor, on taxation of accounts, that the winner has been unsuccessful on some particular point of the case or that expense has been caused through his fault: Paragraph 9 of schedule 1 to Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993. The question for us is somewhat more broad, namely whether the result can be described as divided success as opposed to substantial success for the interested parties.

8. We are quite satisfied that subject to a small argument about rectification the real issue being litigated was the appellant’s claim to ownership of the verge of the road and ditch where it existed in the yellow, green and red areas. In this the interested parties were entirely successful. No part of the three day hearing was taken up with a claim for ownership by the interested parties of any part of the yellow areas comprising the appellant’s cottage garden. We think, fairly construing the formers’ correspondence and pleadings, that they never in fact disputed rectification regarding that area. It was clear enough that the contentious issue was that of ownership of the verge and ditch, and, to a lesser extent, whether rectification was possible. The reason for any diffidence in the interested parties’ written position appears due to the fact that the Keeper’s plan A6 was unclear precisely as to the yellow areas within and outwith the garden. Therefore the location of the true disputed area could not be clearly expressed by reference to the plan. This aspect of the case did not lie at the heart of the dispute and can be resolved by an accurate plan.

9. We therefore find the appellant liable to the interested parties for the expenses of the appeal on the Sheriff Court scale. Failing agreement, expenses should be taxed by the auditor of Oban Sheriff Court.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 31 March 2015

Neil M Tainsh – Clerk to the Tribunal