[1] This is an opposed motion by the applicants for expenses following the Tribunal’s determination of an application for discharge of a title condition to enable them to erect an extension to their house. The Tribunal heard the opposed application on 22 November 2006 and issued its decision and Order on 12 January 2007, when the application was granted to the extent of varying the condition so as to allow the particular development proposed by the applicants to proceed. The Order expressly reserved all questions of expenses. The motion for expenses was lodged with the Tribunal on 19 June 2008, and has been dealt with, by agreement, on the basis of parties’ written submissions. The principal, but not the only, point taken by the respondent related to the applicants’ delay. The Tribunal has considered that and the other points taken. In the particular circumstances of this case and for the reasons given below, we have decided to grant the motion and award the expenses of the application, from the date of the respondents’ representations opposing the application, in favour of the applicants, modified to three-quarters.
[2] Opposing the motion, the respondent doubted its competency, noted that there did not appear to have been any other case in which there was such a long delay, and referred to certain provisions in relation to finality of decisions of the Tribunal and final interlocutors of courts, and also to public policy. An application in excess of one year after the decision was unjustified and should be refused. Alternatively, any award should be modified significantly because of the delay. It was unreasonable to expect the Tribunal to consider matters so far away from the date of the original hearing.
[3] Further, the Tribunal generally did not award the entire expenses of a general application for discharge of the title condition when the decision was only to vary. The submission also referred to the applicants’ concession in the course of the evidence that they would move the boundary back 9 inches from the original proposed building line. No other extension to the same extent as proposed had been built within the development, and the respondent had a genuine and clearly significant issue to try. She was entitled to consider that there was potentially a material infringement of her right, use and enjoyment of her property and to oppose the application on that basis. There should be no award of expenses to or by either party.
[4] In response, the applicants resisted the argument that the time delay was fatal. There were no constraints upon the Tribunal in that respect. The reason for the delay was that there had been an ongoing action of interdict by the respondent and it was appropriate that the question of expenses be dealt with once the decision on that was reached. Reference was made to the interdicts granted, and refused, and an award of expenses in favour of the respondent as the successful pursuer in that action. However, the respondent had failed in her intention, in opposing the application to the Tribunal, of preventing the applicants from building the extension. The general rule that expenses follow success should be followed.
[5] We consider first the question of delay. On the face of it, it certainly appears unsatisfactory that a motion for expenses should be made 19 months after the decision on the merits of the application, even although expenses were reserved. We would have thought that normally such a motion could easily be made within, say, three months of the decision. However, it seems to us firstly that the motion is competent, expenses having been reserved and there being no particular rule of our procedure, or by analogy with court procedure, to prevent it; and secondly, considering the exercise of our discretion, that the delay can be excused in the particular circumstances of this case, where the parties have been carrying on another litigation connected with the same proposal in relation to extension of the applicants’ house. The respondent has not contradicted the applicants’ assertion that this was the reason for the delay or suggested that there has been any delay following the conclusion of these other proceedings. That seems to us to put the matter in a different light. If the dispute about the extension proposal had been over and done with once the Tribunal’s decision was given and not appealed, and there was then complete silence from the successful party, we think the time must come when the unsuccessful party is entitled to conclude that expenses were not being claimed. In such circumstances, while each case depends on its own circumstances, we can envisage refusing to award expenses or perhaps marking disapproval of the delay by modifying. Here, however, dispute was ongoing and we think that the respondent, having sought and been awarded expenses in the other proceedings, might reasonably have expected that the applicants might at the end of the whole litigation seek to recover, or perhaps set off against the respondent’s award in the court proceedings, those expenses to which they were entitled.
[6] We have considered the other points advanced by the respondent. Her submissions implicitly recognise that the normal rule, introduced for this type of case by Section 103(1) of the Title Conditions (Scotland) Act 2003, is that expenses follow success, although the provision does refer to the extent of success and each case has to be decided, in an exercise of discretion, on its own facts and circumstances. The respondent first points to the applicants’ more limited success in so far as they maintained an application for discharge of the burden (which would have meant that their property, unlike the others in the property community, would have been relieved of this burden in relation to any future proposal to extend, alter, etc.) but were only granted a particular variation. It is correct that the applicants have in this respect not had complete success. There are cases in which this aspect can be seen to have caused some of the expense claimed, or caused the respondents some identifiable expense, or indeed the respondent may be able to say that she would not have opposed an application merely to vary. In the present case, however, we do not think any of these things can be said. The argument was focused fairly and squarely on the applicants’ particular proposal, which was clearly being opposed even if made in the form of an application to vary. The court hearing, evidence and submissions in this particular case were all commendably brief and succinct and it cannot be said that any time was taken up on any general argument about discharge. In this particular case, therefore, we do not think that this aspect caused any expense which would not otherwise have arisen and we do not think that it would be right to modify expenses on this account.
[7] However, the respondent also referred to the applicants’ concession, in the course of the hearing, that they would build their extension 9 inches back from the boundary. If an applicant makes a material concession at a late stage, that could be relevant to expenses. In this case it could be argued that the concession was not material to this application. We referred to this at pages 8 and 12 of our Opinion. It is also the case that the respondent maintained her position despite the concession. However, it was evident to us that she only learned of this change of position by the applicants during the course of the hearing before us. This means that until that point the applicants were seeking the Tribunal’s approval of a proposal involving overhanging of the respondent’s property. While that was a matter to be dealt with in the ordinary court, it seems fair to conclude that it may have played some part in the respondent’s approach to these proceedings. Taking a broad view of the significance of this matter in these proceedings, we do consider it appropriate to reflect this in the award of expenses.
[8] As far as the general reasonableness of the respondent’s position is concerned, we can accept that, with this extension proposal going slightly further than other extensions within this estate, there was a genuine issue to try, but the effect of Section 103(1) is that we have to proceed on the general approach that expenses follow success. Prior to the 2003 Act, the Tribunal’s practice was not normally to award expenses against unsuccessful benefited proprietors, but the Act changed that. We have in effect decided that, on a consideration of all the circumstances, the effect of the extension proposal on the respondent was not such as to swing the balance against the proposal, so that the applicants succeeded and as in court litigations it is not enough for the unsuccessful party to say that the opposition was reasonable.
[9] As we have indicated, each case depends on its own facts and circumstances. Having looked at all the matters raised in this case, we have decided that the applicants are generally entitled to expenses, but that the aspect considered at Paragraph 7 above justifies a modification of that award by one-quarter, to three-quarters. That is the award which we shall make. Our normal practice is, however, only to award expenses from the date of the representations opposing the application, because the applicants would have required to apply to the Tribunal anyway, and we see no reason to depart from that position in this case.
[10] The applicants have submitted their account of expenses to the Tribunal. As this is a full account of expenses, it will however require to be taxed by the Sheriff Court auditor in the ordinary way, unless of course parties can reach agreement on the amount.
Note issued: 20 August 2008
Members: J N Wright, QC; I M Darling, FRICS
Case Ref: LTS/TC/2006/04
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 20 August 2008
Neil M Tainsh – Clerk to the Tribunal