(1) This Note deals with written motions for expenses following the conclusion of the case. It should be read in conjunction with our opinion on the merits dated 9 November 2016. The appellants seek their expenses against the interested parties, and the interested parties seek their expenses against the appellants. No motions were made against the Keeper, who had adopted a neutral role in the proceedings.
(2) In summary, we found that the land register for the interested parties’ titles from points A to C, comprising a narrow strip of land of about 285m in length, was not inaccurate. Of this area, about 100m from point A is contained within the second interested parties’ title and the remainder is contained in the first interested party’s title. We found that the land register for the first interested party’s title was inaccurate between points E-C since the appellants have succeeded in establishing a real right of ownership in that land. This area extends to about 70m in length and is adjacent to the appellants’ cottage and garden. We have found that the land register should be rectified so as to exclude this area from the first interested party’s title. We have also recommended that the register contain a statement to the effect that where the boundary is the burn, it is to the medium filum of the burn.
(3) The interested parties submit that the second interested parties have been wholly successful in that their title does not require rectification and that expenses should follow success. As regards the first interested party, it was accepted there was an element of divided success, but that nevertheless there should be a full award to take account of the appellants’ conduct in the proceedings. It was pointed out that the appellants had not given fair notice of the acts of prescriptive possession founded upon until the morning of the abortive first hearing. Even when the appellants subsequently produced a colour-coded map to show the area where they contended they had planted trees, they sought to give evidence of planting beyond the areas shown. The written case was not clear as to the location of the fence which it was maintained had been erected since only a reference was made to brief diary entries. The case had proceeded for a lengthy period of time, largely due to the conduct of the appellants. The appellants’ degree of success at points C-E turned on matters which had not been previously canvassed in advance of even the second hearing. The interested parties resisted the motion for expenses against them for these reasons also.
(4) The appellants submitted to the tribunal’s clerk an email dated 17 January 2017; although its terms are somewhat informal we are prepared to treat it as a motion for expenses on their behalf. In opposition to an award against them, the appellants have made a somewhat diffuse submission by email dated 12 January 2017, and two unsolicited supplements by emails of 18 and 19 January. They contend they had no option but to submit the appeal on account of continuous damage to “their” property by the interested parties. They refer in some detail to the sheriff court interdict proceedings which were sisted in July 2014 after certain interim orders were made against them in March 2014. They attach significance to the fact that the sheriff court proceedings were sisted by agreement. They give an account of events leading up to those proceedings. They also made reference to their view of the Keeper’s position in the Tribunal proceedings which, as we discussed in our opinion, we on the contrary found to be essentially neutral. The appellants’ submission expresses the view that the interested parties had sought to own the appellants’ driveway. We recall no evidence to this effect. It also expressed the view that the interested parties had harassed the appellants’ agents. We should say that this is the sort of point from which we strove to steer the appellants clear during the hearing, not always successfully, since it did not assist us in determining the true boundary. It exemplifies the difficulty which the appellants have had in focusing upon what is relevant to the tribunal proceedings, and which is, we regret, relevant to the question of their conduct of the proceedings. The appellants also made reference to one of the interested parties’ productions, namely McConnachie’s text on Bennachie and submitted, contrary to our own findings, that it supported their position and not the interested parties’ position. Criticism was made of the registration process of the interested parties’ titles which, it was said, misled the Keeper.
(5) The second interested parties have been successful in that they have avoided rectification of the register of their title as sought by the appeal. They are entitled to their expenses. For the purposes of the auditor in making an apportionment between the expenses of the first and second interested parties, it will be noted that they were jointly represented.
(6) As between the appellants and the first interested party, there has been divided success. The interested party has, as it were, succeeded to a significantly larger length of the disputed area than the appellants. The area C – E where the appellants succeeded appeared to be a major flashpoint for the dispute, involving the destruction of property, and was undoubtedly very significant in the minds of parties. But it was not the only flashpoint by any means since there was also a dispute over drainage issues at point A, albeit technically a dispute between the appellants and the second interested parties. Nevertheless, in terms of outcome involving the appellants and first interested party, we think it can fairly be said that each party achieved a substantial degree of success, with the first interested party being somewhat more successful overall.
(7) In terms of the effort in bringing or defending the case, it is our impression that a significant amount would have been expended on title and historical matters common to both areas A – C and C - E. In our written opinion we observed that the evidence of possession of A – C was more controversial, and it is fair to say there was more evidence about possession of this area than C - E, if only because the interested parties offered little or no evidence to challenge the appellants’ possession of C - E. But taking a necessarily broad view, if either the appellants or first interested party had earlier conceded the area which they in fact lost, and only proceeded to litigate for the balance, we would venture that C - E proceedings alone if conducted efficiently would have been somewhat shorter than A–C proceedings alone. So in the time and effort sense, as well as the land recovered sense, the first interested party has been more successful by a degree. So taking the above factors into account as best we can, all else being equal, we would allow the first interested party one third of its expenses from the appellants.
(8) However it is necessary to consider whether this outcome should be altered on account of the conduct of the parties. In this context we think it is right to focus upon the cause of the expense of the process of litigation, not the cause of the underlying dispute. As the Tribunal indicated in Gray v The Keeper and Horrell LTS/LR/2013/11, 19th April 2016, parties must be taken to have assessed their positions at the outset of the litigation. We are dealing with conduct which has caused unnecessary expense in the tribunal litigation process itself.
(9) We have formed an unfavourable view of the appellants’ conduct in these proceedings. Much of what we say here is self-evident from the case papers. We think that it took the appellants too much time to produce an adequate colour copy of the important sasine plan applicable to their title. The interested parties identified by means of adjustments in October 2014 the fact that this plan had not been produced. They subsequently made a request for a debate on 20 March 2015 for this reason, which led to a request by the Tribunal on 21 April 2015 for a full copy of the correct plan standing an anomaly in a plan which had in fact been produced by the appellants. The appellants did not produce a good colour copy of the “correct” plan until 16 July 2015. It will be recalled from our opinion that the true sasine plan provided the appellants with less assistance that the incorrect plan which they had earlier produced, and which nevertheless they proceeded to found upon. We think this was the overriding reason why little progress was made in the case during the above period and should be taken into account in assessing expenses.
(10) In addition, we were under the impression that a section of the 70 minute cross-examination by Mrs Tock of Mrs Mearns at the September 2016 hearing was hostile in demeanour and unhelpful to us in addressing the real issues. Indeed, at one point it necessitated our refusing to allow Mrs Tock to continue the cross-examination. We were not however asked to quantify how much time was wasted on this exercise, which we suspect would be an almost impossible task to carry out effectively.
(11) However, we do think the amount of tribunal time unnecessarily lost can be quantified in the case of the appellants’ inability to give fair notice of their case. The Tribunal’s website gives guidance as to the giving of fair notice and, following the production of the correct sasine plan, the Tribunal issued a Note of 29 July 2015 to parties. Amongst other things this gave guidance as to the requirement for the giving of notice of the general nature of the possession on which the appellants intended to rely, as well as the need to lodge documents. The pre-hearing letter of 20 April 2016 indicated that all productions intended to be used or put in evidence required to be lodged on 2 June 2016. It was therefore a matter of some dismay that at the hearing on 16 June 2016 the appellants appeared intent on leading evidence of various acts of possession, including the planting of many trees, supported by a large number of diary entries over a period of many years going back to the 1980s and tendered at the hearing. The interested parties had not been forewarned of this course in any written pleading. The Tribunal was of the view that historical diaries of this nature and with potential significance should have been lodged as documents. Standing the opportunities which the appellants had been given to make their case in proper form, the hearing was only discharged with reluctance and reserving the question of expenses. Only following this discharge did the appellants make it clear in “adjusted pleadings” that they intended to rely upon tree planting, building of fences, water gates and burn maintenance as taken from Mr Tock’s diaries. We also have some sympathy for the interested parties that this document did not disclose a specific intention to lead evidence of tree planting between points C - E, although it was tolerably clear when taken along with other productions as to the main locations where it would be maintained various other acts of possession had taken place. These acts included the construction of substantial deer fences at C – E. Accordingly we conclude that the appellants, without justification, failed to give adequate notice of their case between 29 July 2015 and 21 June 2016 and that this had a marked impact upon the progress of the proceedings.
(12) We now turn to the appellants’ submissions. The fact that their application has been partially successful in respect of some of the disputed area has been recognised in the above analysis. Beyond that, we think that the criticisms made of the interested parties, for what they are worth, do not arise in the context of causing unnecessary expense in the tribunal litigation. We do not think the reference to the sheriff court interdict proceedings, or to the registration process of the interested parties’ titles, are relevant to the efficiency of the conduct of the proceedings before us. Moreover, given that the interested parties had registered titles, apparently with indemnity from the Keeper, it is to be expected that they may have relied upon that fact in their actions. The submissions of the appellants did not alter our view that the period of the Tribunal litigation between 21 April 2015 and 21 June 2016 was largely abortive for the reasons given above. We would accordingly allow the first interested party its expenses for this period.
(13) We allow the second interested parties their expenses against the appellants in defending the application. We allow the first interested party its expenses against the appellants in defending the application for the period between 21 April 2015 and 21 June 2016, including the expenses of the discharged hearing on 16 June 2016; otherwise we find the first interested party entitled to one third of its expenses from the appellants. In the event that parties are unable to agree the level of expenses, we would nominate the Auditor of Aberdeen Sheriff Court for taxation on the sheriff court scale in terms of rule 28(3).