NOTE
(Expenses)

James MacDonald and Mrs Pamela MacDonald (Applicants) v Keeper of the Registers of Scotland (The Keeper) and Bernard Kay and Mrs Brenda Kay (Interested Parties)

part of subjects at Gateyard House, Balcurvie, Leven

[1] This note deals with a motion for expenses by the applicants which we are determining by means of written submission. The applicants move for expenses of process against the interested parties. They seek sanction for the employment of counsel. They seek certification of Mr Graham Wilson as an expert witness. They seek uplift in the expenses of 50% as an additional fee to the solicitors. The applicants did not seek an award of expenses against the Keeper.

Submission for Applicants

[2] The applicants have been successful in the issues in the case. They have shown that the interested parties’ underlying title was not habile to include the disputed area, and that in any event, any such title had not been fortified by prescriptive possession. The general rule is that expenses should follow success.

[3] The applicants sought sanction for the employment of counsel in terms of rule 28(4) of the tribunal rules. Reference was made to Scott v Teasdale LTS/TC/2008/56, 19 April 2010 and Sutherland Bros. v The Kastille WCK - A12-16, Sheriff Appeal Court 4th July 2018. It could be inferred that counsel’s advice had been justified, since the grounds of appeal had been well-founded. The interested parties had instructed a solicitor advocate, equivalent to counsel. The case presentation had been properly focused since time had not been wasted with extrinsic evidence about parties’ relations. The dispute involved the denial of access over the ground for commercial vehicles to the applicants’ property which rendered the house practically unmarketable. This gave the dispute a significant financial value. There were two related court cases waiting the Tribunal’s determination, namely an action by the applicants against the interested parties for interdict, and an action by the applicants for damages for professional negligence against the conveyancers who acted for them in respect of the purchase of their property. Counsel was involved in all three cases and it was reasonable to expect a continuity of representation in respect of each of those actions.

[4] The proceedings were not legally straightforward. Numerous legal authorities were referred to and detailed understanding of them was required e.g. as to the somewhat nuanced manner of the application of a presumption that a title “bounded by a public road” extended to its mid-line. Ultimately the applicants called eight witnesses as well as their own testimony; there was the requirement for evidence by television link and the historic evidence of maps going back some 180 years. The decision would affect what would appear on a public register for an indefinite period and regulate not only the parties but also third parties potentially including the roads authority. The employment of counsel was therefore reasonable.

[5] The applicants sought certification of Mr Wilson in terms of rule 28(5). Mr Wilson is an expert conveyancer with some 40 years’ experience. He prepared his written statement to the Tribunal and the Tribunal noted the utility of his evidence on the execution of plans at paragraph [14] of the Opinion.

[6] Turning to the uplift, the Tribunal had jurisdiction to award an uplift in expenses: Gray v The Keeper LTS/LR/2013/11, 19 April 2016. The Tribunal may have regard to the considerations in terms of the Court of Session and sheriff court rules, namely the complexity of the case and the difficulty and number of the questions raised, the skill, time and labour and specialised knowledge required of the solicitor, the number of documents prepared, the importance of the appeal and its subject matter to the applicants; the value of the property involved in the appeal; and steps taken with a view to limiting the matters in dispute or limiting the scope or hearing.

[7] The various matters set out above justified uplift. The applicants had been required to raise three sets of legal proceedings. The fact there was a potential ransom strip preventing commercial vehicles crossing the ground indicated the particular importance of the matter to the applicants. This had significantly prejudiced the applicants’ enjoyment of their house and effectively rendered it unsellable. Here there was a background error by the Keeper which made the case similar to Gray v The Keeper. There was a large volume of productions lodged extending to over 500 pages including a lengthy sequence of historic maps. Statements were taken from nearly 20 witnesses. The applicants took steps to limit the matters in dispute by taking the initiative to agree to the admissibility and use of written productions by joint minute.

Submission for Interested Parties

[8] It was submitted that in dealing with expenses the Tribunal had a discretion but must exercise that in the light of underlying principle: Brian Pattie & Anor v The Keeper & Ors LTS/LR/2013/01, 29 January 2014. Reference was also made to Nevis Estate v Cameron 2011 SLCR 117 at [64] that one should consider who caused the litigation. The present case was not normal since the registration indicated that the disputed area belonged to the interested parties and that this position was assented to by the applicants’ previous agents, which was not in dispute. The Keeper having agreed to the registration, the interested parties had no option but to contest the application. In these circumstances there should be no award of expenses to or by either side.

[9] The interested parties nevertheless accepted that sanction should be granted for the employment of counsel in the light of the complexity and difficulty of the litigation, and also agreed that Mr Wilson should be certified as an expert witness. The interested parties had led the evidence of their solicitor Mr McKenzie for much the same reasons as those advanced by the applicants.

[10] The interested parties disputed that any uplift should be granted. The solicitor’s role had been minimised by the input of counsel which had been central to the conduct of the case. There had been much photocopying which was not pertinent to the issue of the uplift. The number of witnesses was not out of the norm. The only matter out of the norm was the setting up of the video link with New Zealand but this was not particularly unusual either.

Discussion by Tribunal

[11] The general rule is that expenses follow success, and the applicants have been successful. The interested parties have set store on an apparent acknowledgement by the applicants’ previous agents that the disputed area belonged to the interested parties. This matter was touched upon during the evidence, but we do not think was ever formally set out by means of producing relevant correspondence. Whatever the earlier background, it is however clear that the interested parties were aware of the applicants’ final position via their present solicitors many months before the present proceedings were raised, and indeed before the Keeper’s act of registration. The issues of habile title and prescriptive possession were both disputed and the interested parties’ solicitors were aware of this. This can be taken from the Keeper’s letter to the interested parties’ solicitors dated 20 February 2016, acknowledged on 23 February.

[12] In these circumstances we think we should follow the Tribunal’s approach mentioned in paragraph 6 of Gray v The Keeper:-

“We accept that there may be circumstances in which it is appropriate to have regard to the actings of parties before the start of litigation but we are satisfied that the general position in relation to expenses is that parties must be taken to have assessed their positions at the start of litigation. Our concern is with the cause of the expense of the process of litigation, not the cause of the dispute.”

[13] Bearing the above in mind, we do not think any previous concession on the part of the applicants or their agents requires us to depart from the general rule. We shall therefore award expenses to the applicants on the sheriff court scale.

[14] We agree that the litigation was sufficiently complex and difficult to justify the employment of counsel. We would also endorse the point that counsel’s ability to focus upon what was relevant spared the Tribunal from having to deal with potentially other areas of historical difficulty between the parties which would have been unlikely to have assisted us in reaching a decision.

[15] We shall certify Mr Wilson as an expert witness. As the applicants point out, his evidence was of assistance and we consider that it was reasonable for him to have given evidence.

[16] Turning to the motion for an additional fee, we do not propose to deal with each of the familiar heads in detail. Suffice to say that our impression was that the case was more complex than a routine sheriff court case. There were two separate issues in play, namely habile title and prescriptive possession, each involving issues of fact and law. A significant amount of historical mapping research was carried out to a high standard which, if not undertaken by the solicitor personally, at least required his oversight and understanding.

[17] But in this case we think the importance of the cause to the client to be particularly significant, and that on an objective basis. We agree that the access issue could be seen as something of a potential ransom strip in terms of marketability of the applicants’ title for their dwelling house. With access denied to the courtyard, any commercial vehicle would require to park on the main road. As there is a 90 degree corner at the applicants’ access, this restriction would be all the more inconvenient, since the vehicle would require to park a safe distance away from the access, thus increasing the distance for manual carriage etc. Entrance for any mechanical equipment might also be compromised.

[18] It is of course the case that the implied restriction in the title was not binding in the final analysis. But the existence of a restriction was apparent on the face of the title, and thus likely to impair the marketability of the title. Given the stance taken by the interested parties in seeking to enforce a restriction, prospective purchasers would be cautious. We conclude that it was indeed important to the applicants for the matter to be resolved, thus increasing the burden upon the solicitor. In all the circumstances we consider that an uplift of 20% would be reasonable.

Decision

[19] Accordingly, we shall allow the applicants their expenses against the interested parties. We sanction the employment of counsel. We certify Mr Graham Wilson, solicitor, as an expert witness. We shall allow the applicants’ solicitors an additional fee of 20% of the fees authorised by our order. In the event that parties are unable to agree the level of expenses, we would remit the case to the Auditor of Kirkcaldy Sheriff Court for taxation on the sheriff court scale.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 7 February 2019

Neil M Tainsh – Clerk to the Tribunal