Heritable Property – Title Conditions – Discharge or Variation – Expenses – Principles to be applied – Requirement to have regard in particular to extent of success – Whether Tribunal’s former practice of not normally awarding expenses against unsuccessful benefited proprietors still appropriate – Liability of benefited proprietors who submit representations , take no further part, but do not withdraw objections – Consideration of particular circumstances – Successful applicants seeking expenses against objectors, some of whom did not attend hearing – Modification of award to 70% where (a) applicants successful only in obtaining variation, (b) failure of applicants to discuss possibility of agreement, (c) introduction of legal submissions on title at late stage, and (d) respondents’ understandable unfamiliarity with recent change in law on expenses – Allocation of liability among objectors – Several liability, in fixed proportions – Slightly higher awards against objectors who attended hearing – Expert Witness certification – Expenses of unsuccessful claim for compensation – Title Conditions (Scotland) Act 2003, Section 103(1) – Lands Tribunal for Scotland Rules 2003, Rule 28(2)

West Coast Property Developments Limited v Clarke and Others (Expenses)
6 October 2006

Applicants who were successful in obtaining variation of title conditions sought awards of expenses against all the objectors, some of whom attended the hearing but others of whom took no part after lodging representations objecting but did not withdraw. Various issues in relation to expenses were raised.

Held, making awards of expenses totaling 70%, in certain fixed proportions, while the Tribunal appreciated the concerns of unsuccessful objectors who were benefited proprietors seeking to defend their rights, as a matter of interpretation, Section 103(1) of the Act required the Tribunal to depart from its previous practice of not normally awarding expenses against such unsuccessful objectors. Parliament must be taken to have been aware of that previous practice and, in requiring Tribunals to have regard in particular to the extent of success, to have intended that it should change. The general principle that the party who caused expense should bear it was reflected in the basic ‘success’ rule, exceptions to which were based on the general principle. However, in order to apply its discretion, the Tribunal must also look at the particular circumstances of the case. Since the extent of success had to be considered, there would appear to be no necessity for any formal tender as in other cases, and it was permissible to consider the fact that only variation, and not complete discharge, was ordered where the latter had been sought. Applicants would be well advised to consider carefully how much to ask for. Normally, expenses would only run from the date on which objections were lodged and would not be awarded in unopposed applications. Disapproval of an aspect of the successful party’s conduct of the proceedings might be marked in expenses, as where the terms of an application had been vague and objectors could not be expected to decide until a later stage whether to oppose. Consideration of the approach and efforts of parties towards reaching agreement, perhaps including conduct in relation to an offer of mediation or the like, might also be relevant.

In the particular circumstances, the applicants had clearly succeeded. They had applied for discharge and succeeded only to the extent of obtaining a variation, but the opposition was really to both, so only limited effect could be given to this aspect. The applicants’ motive of financial gain in developing the subjects was irrelevant to expenses. The applicants had failed to negotiate, or even contact the objectors, but it had to be remembered that there had been some 31 benefited proprietors some of whom had demonstrated extensive opposition: it was unrealistic to think in terms of achieving unanimous agreement and this consideration also could not carry much weight. For the same reason, the applicants’ failure to offer mediation was understandable, and in any event none of the objectors had proposed that. Certain criticisms of the applicants’ conduct of preparations for the hearing were without foundation. They had, however, at a very late stage indicated their intention to make submissions on title and interest and this had contributed to some further procedure. On the matter of intimation of the risk of expenses, it was not true that the Tribunal had ‘invited’ representations, and the objectors had been notified of the position on expenses in the Tribunal’s standard letter in advance of the hearing. Property owners should appreciate the legal nature of proceedings regarding property rights. However, some slight effect could be given to the submission that the position under the recent legislation was not widely known. In all the circumstances, the applicants were entitled to expenses modified to 70%.

Rule 28(2) of the Tribunal’s rules allowed it to give effect to concern about the possible effect on individuals of a joint and several award by making separate proportionate awards on the basis of several liability. In doing so, it was appropriate to reflect the slightly greater expense caused by those objectors who attended the hearing, although it should be remembered that those who did not attend received, as it were, the benefit of the oral evidence and submissions of those who did. Those who did not attend might have been in a better position if they had asked the tribunal to decide on the basis of their written submissions. The 3 who attended should pay 10% each; the 5 who did not, 8% each. One particular respondent was not made liable as she had not really lodged representations but merely agreed to her name being added to a letter of representations which she did not sign, and she had not received the Tribunal’s correspondence during the proceedings.

Sanction for the applicants’ architect as an expert witness was refused as it was not shown that he had specially prepared to give evidence in this case.

The applicants were entitled to expenses in full in relation to an unsuccessful claim for compensation by one of the objectors.

Authorities referred to:-

Dobbie v Fife Council LTS/COMP/1996/8, 14.1.1998
McTaggart v Campbell & Another LTS/LO/2000/23, 10.1.2002
Parks of Hamilton (Holdings) Ltd v South Lanarkshire Council LTS/LO/2001/46, 4.10.2002
Donnelly & Regan v Mullan & Others LTS/TC/2005/01, 1.9.2006

See full decision:  LTS/TC/2005/21 (Expenses)