1. These opposed proceedings under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 involved a title condition which is an ongoing building restriction in a Feu Contract relating to bungalows in a residential street. The applicants wished to extend their house. The respondent is an immediate neighbouring proprietor. The applicants’ initial position was that the condition was not enforceable by the respondent and they sought a determination under Section 90(1)(a)(ii) to that effect, but that contention was given up very shortly before the hearing. The Tribunal’s decision on the application for discharge or variation was to vary the condition to the extent of permitting the proposed development, and also to refuse the respondent’s claim for compensation. Reference is made to the Tribunal’s Opinion dated 22 August 2007. We have now considered various motions in relation to expenses on the basis of written submissions.
2. Our decisions on expenses are as follows:-
(i) We find the respondent liable to the applicants in the expenses of the proceedings, from the date of receipt of the respondent’s representations onwards, restricted to three-quarters.
(ii) We sanction the employment of junior counsel, but only in respect of the hearing of the application, including one consultation and preparation.
(iii) We do not certify Mr Mackay and Mr Gray, witnesses for the applicants, as skilled witnesses in relation to these proceedings.
3. The applicants sought an award of expenses, both in relation to the merits and in relation to compensation, from the date of the application. In summary, they claimed that their application had been entirely successful. They were critical of the respondent’s conduct in a number of respects. In relation to these proceedings, the respondent’s objection had been unreasonable and inconsistent; the respondent had ‘sought unreasonably to delay’ the hearing; he had introduced irrelevant material in relation to the planning process; and the presentation by his counsel at the hearing had been slow and repetitive (as the Tribunal had indeed observed). The respondent’s position in relation to the possibility of agreement was also relevant: his commencement of interdict proceedings prejudiced the chance of reaching an acceptable compromise, and he had rejected a proposal for slight revision of the applicants’ plans, a matter which had involved the applicants in further expense. The respondent had achieved no success with his claim for compensation.
4. The applicants further sought sanction for the employment of junior counsel, again from the date of the application: they had felt disadvantaged, the respondent being an experienced advocate and his wife a litigation solicitor; the respondent had interdicted them; the relative novelty of the legislation resulted in a degree of uncertainty; and the respondent had himself employed junior counsel.
5. Further, the applicants sought certification of two expert witnesses, viz. Mr Mackay, an experienced property solicitor who had dealt with questions about the cost of alternatives to extension and also with the compensation position, and Mr Gray, their architect, whose evidence had been adduced by affidavit to minimise expense and who had addressed aspects of the respondent’s opposition in relation to overshadowing.
6. The respondent opposed all these motions and himself sought the expenses of the application (but not sanction for counsel) up to the date of the hearing, with no award of expenses of the hearing due to or by either party. He complained that the applicants, having obtained planning permission, “believed that they could proceed as they like” on the view that the condition was unenforceable and had maintained positions on enforceability, and also complete discharge, of the condition right up until the hearing and had thus substantially failed to achieve what they had applied for. The respondent drew our particular attention to the applicants’ failure, despite letters from the Tribunal, to intimate their position on enforceability and discharge. This had had the effect of limiting scope for discussion. The respondent had always made clear that he was not objecting to variation in principle and was merely opposed to one aspect of the extension proposal. As far as the compensation claim was concerned, this had been purely subsidiary and no witnesses or productions had been required to deal with it.
7. On the issue of sanction for junior counsel, the respondent submitted that there was no particular novelty or complexity of the case as ultimately argued by the applicants, i.e. without the enforceability argument, and it was only because of the form of the original application that he had instructed counsel. The applicants had instructed counsel before the respondent did.
8. On the question of expert witnesses, the respondent argued that Mr Mackay had simply spoken from general experience. Mr Gray had not demonstrated objectivity; he had spoken to facts within his knowledge as the applicants’ architect; and his evidence had contained inaccuracies.
9. Section 103(1) of the Title Conditions (Scotland) Act 2003 provides as follows:-
“(1) The Lands Tribunal may, in determining an application made under this Part of the 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.”
We are thus required primarily to consider the extent of success, on both sides, but we also have a discretion to reflect other matters, particularly any conduct in the course of the proceedings which may have had an effect in causing expense.
10. Subject to one important matter to which we will come back, this is a case in which the applicants succeeded both on the merits and in resisting the claim of compensation and we can find no relevant criticism of their conduct of the proceedings. Generally, the applicants required to bring these proceedings in order to try to escape from the burden imposed by this title condition, so as to enable them to proceed with their proposed extension. The proceedings were necessary because the respondent did not consent. He opposed. Basically, he lost: we varied the condition so as to permit the applicants to proceed with the extension proposals in their entirety. Although there was, as is unfortunately not uncommon in cases of this sort which reach the Tribunal, some degree of aggravation between the parties, we do not consider that the applicants’ conduct prevented discussion as to the possibility of compromise and thus caused expense. Indeed, we note that there was some discussion and in fact an offer by the applicants of a small modification of their proposals. This was not accepted, and the applicants proceeded and were basically successful. While the extent of both sides’ pleadings was on the prolix side for this type of case, we do not find anything unreasonable in the applicants’ conduct, subject, as we say, to one matter.
11. In these circumstances, criticism of the respondent’s conduct does not really add to the applicants’ argument for expenses. We would, however, record our view that, although he lost, there was in general nothing in any way unreasonable in the respondent’s opposition to the application. He had a perfectly understandable position in relation to the applicants’ extension proposal. Whether or not it was necessary to bring interdict proceedings (a not uncommon scenario in relation to disputes about the application of title conditions) does not seem to us to be relevant to expenses in this case, and the expenses of those proceedings are of course not a matter for us. The respondent was willing to, and did, discuss the possibility of reaching agreement. He clearly harboured a grievance about the way in which the planning process had proceeded, but he generally accepted the Tribunal’s indication at the hearing that this jurisdiction is not used as a form of appeal against planning decisions. The somewhat slow and repetitive presentation by his counsel is in the circumstances a matter of limited weight.
12. However, the respondent rightly points out that the applicants did not in fact have complete success, because they abandoned their cases on enforceability and on complete discharge of the condition. They did so at a very late stage despite the Tribunal having written well in advance of the hearing asking them to intimate their position on enforceability – a matter which arguably raised a difficult issue of law in relation to the application of Section 53 of the 2003 Act and which might well have required substantial argument – not later than 14 days prior to the hearing. They advised the Tribunal of their change of position seven days prior to the hearing, but the respondent apparently only learned of this by an informal exchange between counsel the day before. We note that in the submissions on expenses the applicants make no reference at all to this and offer no explanation. They also in the event did not press their case for discharge, as opposed to variation, of the condition. We do consider that this matter requires to be reflected in the award of expenses.
13. Despite this matter, we can see no justification for the respondent’s claim for expenses up to the date of the hearing. Issue was well and truly joined on the question whether it was reasonable to relax the title condition, and there is nothing which indicates to us that this dispute, on which the respondent unsuccessfully maintained his position, was not live throughout.
14. The applicants certainly succeeded on compensation and are entitled to the expenses referable to that, but we tend to agree with the respondent that this issue did not in fact take up much time and will not have put the applicants to substantial expense. The claim was stated very generally, with no suggestion that the applicants would require to meet expert valuation evidence or that they prepared to do so. We do not propose to deal separately with expenses on this part of the claim.
15. That brings us to the question to what extent to reflect the applicants’ lack of success on enforceability and discharge and their very late intimation of abandonment of their position on these. The respondent was put to the expense of resisting these claims, as well as the claim for variation, until a very late stage. On the other hand, we do think that the case was certainly going to proceed in any event and of course did so, with success for the applicants. We think that the extent of evidence for which the respondent would require to prepare was not much affected. We propose to reflect the extra expense to which the respondent was put, as well as the proportion of their expenses which the applicants should not receive, and the whole circumstances, by restricting the award of expenses in favour of the applicants to three-quarters.
16. This award of expenses will, contrary to the applicants’ submission, run from the date of the respondent’s representations against the application in accordance with our normal practice, as the applicants would almost certainly have required to lodge the application anyway and we can see nothing in the circumstances which would entitle them to recover that initial expense.
17. In relation to the applicants’ employment of junior counsel, we have, narrowly, reached the view that in all the circumstances this should be sanctioned, but only for the hearing, including one consultation and preparation. We appreciate the respondents’ submissions that the matter only had real legal complexity in relation to the abandoned claim that the condition was not enforceable by the respondent, but the fact remains that there was concerted opposition involving, for example, detailed assertions about the planning process. While we can accept the assertion that the applicants were the first to instruct counsel, we do not see any indication that if the applicants had withdrawn their claim on enforceability earlier the respondent would not have been represented by counsel at the hearing. We do not, however, in a case of this nature see any requirement for the instruction of counsel at earlier stages: the ‘pleadings’ in an application of this kind should be of a straightforward nature which can be handled without undue difficulty by litigation solicitors.
18. We have decided not to certify either Mr Mackay or Mr Gray as skilled witnesses. We should make clear that we do not question the qualifications of either of them as skilled witnesses, nor do we consider certain criticism levelled at Mr Gray by the respondent relevant to this issue, but the question in a case of this sort is whether they have particularly prepared themselves to give skilled evidence in the particular case. We are not satisfied as to that. Mr Mackay spoke from his general experience as a solicitor involved in the property market, and he is not an expert valuer, although his very general view in relation to the effect of the applicants’ proposals on the value of the respondent’s property was useful, but we are reluctant to involve unsuccessful parties in the expense of leading such witnesses before a specialist Tribunal which has the expertise to reach similar conclusions. There is a line between detailed expert opinion which qualifies for this certification and more general evidence from an experienced professional. Mr Gray was in our view really relating the steps taken in the planning process rather than offering an expert opinion on the (different) issue which this Tribunal had to decide.
Members: J N Wright, QC; I M Darling, FRICS
Decision issued: 28 February 2008
Case Ref: LTS/TC/2007/02
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 28 February 2008
Neil M Tainsh – Clerk to the Tribunal