Peter Trodden v James Cogle

[1] In this application, under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the Act”), in relation to servitude access rights, the Tribunal has been asked to consider issues of expenses some years after parties agreed a settlement. The matter concerned pedestrian access to the rear of houses in, effectively, a terrace of three. The applicant, at one end of the terrace, wished to extend his house. There was dispute as to the extent of the rights. The application was initially under both 90(1)(a)(i), for variation, and 90(i)(a)(ii), for a determination as to validity or enforceability. The respondent took issue with the competency of the latter part. The applicant immediately recognised that that part was incompetent. The proceedings continued for some months, characterised by tortuously long pleadings on both sides. Settlement, which was to involve a new Deed of Servitude, was reached very shortly before a contested hearing in November 2006, but not finally implemented until 2009. The agreed settlement was clearly on the basis that if parties remained in dispute about judicial expenses, they would refer that matter for the Tribunal’s decision on the basis of written submissions. The respondent’s original solicitors withdrew in June 2010. His current solicitors submitted the motion for expenses, and also for an ‘additional fee’ on various grounds, in May 2011. There are submissions, themselves extensive, on some preliminary issues raised by the applicant (who is a solicitor who has represented himself throughout) and on the ‘merits’. In the course of his submissions contesting the respondent’s right to expenses, the applicant has himself, alternatively, sought an award of expenses.

[2} Section 103(1) of the Act provides:-

“(1) The Lands Tribunal may, in determining an application made under this Part of this Act, make such order as to expenses as they think fit but shall have regard, in particular, to the extent to which the application, or any opposition to the application, is successful.”

[3] Competency The applicant argues that, there having been an extra-judicial settlement, the Tribunal has not ‘determined’ this application and cannot now do so, at least without a full hearing on the merits. We disagree. The application was not determined when the hearing on the merits was cancelled, merely continued for the implementation of the agreed settlement. The application is only now being determined. It is not unusual for the matter of expenses to be determined at a later stage.

[4] There is, however, force in the applicant’s suggestion that the Tribunal is not now in a position to take a view on the merits, unless – which neither side requests – we hear the whole matter. We should be careful indeed to take any view on the merits. In this particular case, the submissions reveal that parties discussed, and got close to agreement, on one particular alternative access route within the applicant’s garden, as long ago as 2004; negotiations at that stage broke down; the application, as well as questioning the validity of the servitude, proposed a different variation, by in effect routing the respondent’s access through the side of the applicant’s garden, into other land to the rear owned by the respondent, thus avoiding any need to enter the back garden of the middle house; but ultimately, parties agreed a third route, with the co-operation of the middle proprietor, involving another way through the back garden of the middle property. We can see these different routes on paper, but we are in no position to judge now about the reasonableness of parties’ respective positions as to matters such as gradient, suitability on the ground and so on. Nor can we offer a view on wildly differing views as to reasonableness through the negotiation process.

[5] Personal Bar The applicant contends that the respondent is personally barred from maintaining his claim for expenses, because, notwithstanding the parties’ clear agreement at the time that either could bring the issue of expenses to the Tribunal, the respondent by delivering the completed Deed of Servitude in effect waived the right to claim expenses. This is based on the terms of the settlement correspondence, and in particular Paras. 3, 7 and 8 of the respondent’s solicitors’ letter of 27 October 2006. We do not understand the respondent to dispute the relevance of that letter to the settlement agreement, and we see some force in the applicant’s contention: the arrangement does seem to have been that when the Deed was ready to be delivered, if the matter of judicial expenses remained unresolved, either party could then apply to the Tribunal in relation to expenses. It seems to us, however, that the matter falls just short of waiver, the applicant’s interpretation of “all his legal costs” in Para. 7 being to our mind rather strained. We cannot therefore give effect to this plea, but we do regard this background as relevant, along with the third and final preliminary argument raised by the applicant, in the exercise of our discretion under Section 103(1).

[6] Delay The applicant also complains of delay, a further 19 months having elapsed between delivery of the Deed of Servitude and submission of this application for expenses. Envisaging the need, if this application was competent at all, for a full hearing, the applicant suggests that he would be prejudiced by this delay. The Tribunal, however, takes a slightly different approach to this. There is no specific time limit for the lodging of applications for expenses, but the right to apply for expenses cannot be of indefinite duration: there must, in our view, come a time when delay becomes relevant, depending on the particular circumstances. For example, a reasonable period for negotiation on expenses seems appropriate, but there must come a time when it is reasonable for an opposing party to consider that the matter is at an end. In the present case, nearly three years had elapsed before the settlement was implemented. We do not ascribe responsibility for that, but in that situation the respondent should, in our view, have been ready, at least at or very shortly after implementation of the agreement, to make this application. There is no indication of any use of either the time before then, or the time since then, to discuss or negotiate on the matter. We do not regard this as an absolute bar but, along with the indication in the settlement agreement that the matter of expenses was to be raised at the time of completion of the Deed of Servitude, we regard it as an important factor. This point of course applies even more strongly in relation to the applicant’s claim for expenses, as he has only advanced that in answer to the respondent’s belated claim.

[7] Application under Section 90(1)(a)(ii) It is clear that this part of the application was incompetent, as the applicant conceded. The respondent clearly succeeded to this extent. The applicant points out that this did not cause much expense. We do, however, note that although the section of the application specifically directed at it (pages 28 to 31) is relatively brief, that passage did refer to, and incorporate brevitatis causa, relevant passages in the earlier, extremely lengthy, pleading, quite a lot of which does seem directed at questions of validity or enforceability. So this was not a minor part of the application, but it was promptly departed from.

[8] Conduct of Proceedings Like ordinary courts, the Tribunal, in the exercise of its discretion, may sometimes go beyond considerations of success and consider parties’ conduct of the proceedings, and the fact that there was no hearing on the merits does not, we think, prevent such consideration if appropriate. In this case, the respondent refers, under this head, to the length of the application and subsequent adjustments, and it is submitted, difficulty in comprehending it. We agree that the applicant’s pleadings were unreasonably long. We recognise that there was some degree of complication in the title provisions about access. We also allow a reasonable degree of latitude. However, this was at base an application which was not competently concerned with the validity of the servitude, and was in fact essentially of the simplest sort, a very familiar situation of a need to alter the route of pedestrian access to enable an extension to be built. That should not require anything approaching 31 pages, or the quite extensive subsequent adjustment. We do not go along with the suggestion that the applicant’s pleadings were not comprehensible, but we do consider lengthy passages either irrelevant or at least unnecessary. This caused expense to the respondent. On the other hand, it might be said that the respondent, to an extent, joined in this verbosity.

[9] We do not accept the respondent’s submission that the whole application for variation was misconceived because the applicant’s proposal in effect involved extinction of the respondent’s right of access. It was suggested that the Tribunal could not have granted such a variation. We disagree. Certainly, the applicant’s proposal could be said to involve quite a change in the nature of the access, previously taken along a path immediately behind the two neighbouring houses. That would have been part of the argument about reasonableness, but we do not consider it made the application either incompetent or without merit.

[10] Decision Drawing these considerations together, the respondent is in our view entitled to an award of expenses limited to one third. The respondent succeeded on Section 90(1)(a)(ii), and we also feel, in relation to Section 90(1)(a)(i), that the applicant’s unduly lengthy pleadings caused the respondent expense. We are not, however, prepared to go further in favour of the respondent, firstly because we cannot adjudicate on competing submissions about the merits or about the negotiation process, and secondly because we are concerned by the delay, particularly where parties appear to have envisaged issues of expenses being, if necessary, contested at the time of implementation of the final settlement.

[11] Additional Fee We do not agree that the Tribunal has no jurisdiction to award an additional fee in line with the provisions applicable in the Sheriff Court or Court of Session in appropriate cases. The Tribunal does occasionally make such awards. Generally, the Tribunal, in the exercise of its jurisdiction under Section 90 of the Act, follows the practice of the courts in relation to expenses.

[12] However, we see no justification for an additional fee in this case under any of the headings referred to. There might conceivably have been some justification under the complexity head if the validity of the servitude right or rights was in issue, but it was not. None of the other heads seems to us to get off the ground in a dispute of, essentially, a very straightforward type. We cannot see that the cause or the subject matter of it can be characterised as of particular importance to the respondent. The steps eventually taken by the applicant and the respondent’s solicitors to achieve a settlement agreement were commendable but not, as we see it, exceptional.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 20 January 2012

Neil M Tainsh – Clerk to the Tribunal