NOTE
(Expenses matters)

Paul Munro (applicant) v The Keeper of the Registers of Scotland and Borthwick Campsite, LLP (interested parties)

[1] By our order of 30 March 2017 we decided this referral in favour of the applicant and found the Interested Parties liable to him in expenses on the Sheriff Court scale. The applicant’s agents have now moved (i) for the certification of Mr Ben Burbridge MRICS FAAV as an expert witness and (ii) for a 100% uplift of their fees. Both motions are opposed on behalf of the Interested Parties.

Certification of Mr Burbridge

[2] So far as the certification of Mr Burbridge as an expert is concerned, we are satisfied that he should be so certified. In this regard we consider the Interested Parties’ opposition to be misconceived to the extent to which it relies upon our statement at para [29] of our decision that one did not have to be a surveyor to be able to tell that by no stretch of the imagination did the plan annexed to the 1982 disposition put the boundary where it appears on the Land Certificate. That matter was not in dispute: the Keeper had accepted that there was a manifest error in the Register. The questions on which Mr Burbridge’s evidence was important and valuable were as to whether the plans attached to the 1981 and 1982 disposition were sufficiently clear to allow the relevant boundaries to be identified on the ground (so that they were bounding descriptions) and whether there was any overlap between them. On those matters Mr Burbridge’s evidence was critical.

[3] His certification as an expert witness is also opposed on the basis that, as it is put in the Interested Parties’ agents’ written submissions of 8 May, “a lack of attention to detail … renders the witness open to challenge as a skilled witness”. However, we dealt with those minor criticisms of Mr Burbridge’s evidence at para [13] of our decision where we made the point that they did not affect the validity of his conclusions.

[4] Accordingly we are satisfied that Mr Burbridge should be certified as an expert witness and we have done so.

Uplift in fees

[5] The uplift in fees is sought on the basis of three of the factors listed at para 5 of Schedule 1 to the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993/3080, viz (i) the complexity of the cause and the number, difficulty or novelty of the questions raised; (v) the importance of the cause or subject-matter of it to the client; and (vii) the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.

Head (i)

[6] So far as the first of these is concerned, in terms of the submission in support of the original motion dated 12 April 2017 it was argued on the basis that this was the first application to be heard by the Tribunal under sec 80(1) of the Land Registration etc. (Scotland) Act 2012 and it was said that “[t]he notification procedure and subsequent preparation of the case required investigation by the Applicant’s solicitor of new procedure where no existing case law was available for guidance”. This was added to in a Supplementary Submission dated 22 May, where the focus became the issues of substantive law in the case, rather than the complexities of new procedure. The heart of the matter, in terms of this supplementary submission, seems to be that before counsel was instructed the applicant’s solicitor had carried out “examination of the complex legal issues pertaining to the case and identified that because the 1982 title contained a bounding description it was not habile for prescription”.

[7] With all due respect to the applicant’s solicitor, the operation of sec 80 and associated provisions of the 2012 Act is not so complex, nor the significance of a bounding title in relation to prescription so difficult to discover, that either justifies an uplift of fees on the basis of complexity. No increase is awarded under this head.

Head (v)

[8] In opposition to the second head of claim – the importance of the cause or subject-matter of it to the client – the Interested Parties’ solicitors point out that the dispute related to a relatively small area of ground when compared to the applicant’s entire holding. We accept that point but it is not an end of the matter. There is also the “financial stress and emotional strain” arising, cumulatively, from this litigation and the two Sheriff Court actions which preceded it, being interdict actions, the first at the instance of the Midlothian District Scout Council in 2015 and the second, more recently, at the Interested Parties’ instance, whereby the applicant was excluded from the occupation of land now found to be legally his.

[9] A question arises as to whether those earlier court actions are relevant for present purposes. We have decided that they are. There is a very direct connection between them and the present proceedings in that the present application was necessary in order to establish that the interdict actions had proceeded on a completely false premise: that the land in question rightly belonged to the pursuers in those actions. Whereas the first Sheriff Court action had been abandoned, an interim interdict granted in the second one was still in force when this application was brought and heard. Eventual success or failure in that second action therefore depended on the outcome of the present case.

[10] We heard evidence of the toll taken on Mr and Mrs Munro by this course of litigation and certain things which were, apparently, happening on the ground at the same time. It was clear from his presentation both at the site inspection which preceded the hearing and when he was giving evidence that the applicant’s feelings were running very high. He presented as angry and overwrought and it was clear to us that the outcome of this case had come to be of enormous importance to him and that he was experiencing even greater levels of stress and strain than a litigant ordinarily might. Some of that may be to do with his normal temperament but, looking at it objectively, it does not seem unreasonable to attribute some of the behaviour exhibited to having faced two ill-founded interdict actions and having had to come to the Tribunal for vindication. (In describing the interdict actions in that way, we mean no criticism of those who brought them or their advisers. No doubt they were brought in good faith. We only make the point that it has now been established that they were not well-founded.)

[11] Having a client who is subject to such stress makes the solicitor’s job more difficult. That is, no doubt, the rationale for allowing an uplift in such situations and we are persuaded that we should grant an uplift in this case. In assessing how much that should be, we bear in mind the involvement of counsel who would have shouldered the ultimate responsibility for the presentation of the applicant’s case although it is the solicitor who has to do the day-to-day hand-holding of the client. We also bear in mind that we cannot be sure how much of Mr Munro’s deportment was down to the stress of the case and how much to his own personality, so we must be careful not to penalise the respondents for what may in part be simply customary impatience and irritability. But we are satisfied that it is safe to attribute at least some of the applicant’s stress to the importance of the case to him. Balancing matters as best we can, we think an uplift of 15% under this head is reasonable.

Head (vii)

[12] In relation to steps taken towards settling the cause, the applicant’s agents rely on an email exchange with the Interested Parties’ agent whereby they sought to persuade him that they were dealing with two dispositions both with bounding titles and of the significance of bounding titles in relation to prescription. That got pretty short shrift in the Interested Parties’ agent’s email of 6 May where it is said, under a reference to an Opinion provided by Professor Reid to the Interested Parties’ predecessors in title, “nothing in your email shifts my position”, “we won’t be litigating by way of correspondence” and “I look forward to hearing from you with a copy of your clients’ application to the Lands Tribunal”. Having seen Professor Reid’s Opinion (the Interested Parties’ agents offered to make it available to us for the purposes of this decision on expenses) we find their position understandable. Since that is the only matter relied upon under this head it does not seem to us that any uplift in fees is appropriate.

[13] On the whole matter, therefore, we have found the applicant’s agents entitled to a 15% uplift on their fees. The matter of certification of the application as suitable for the employment of counsel was dealt with in our order of 30 March.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 5 July 2017

Neil M Tainsh – Clerk to the Tribunal