[1] In this application to vary a title condition so as to permit the erection of an additional house on the applicants’ property, the Tribunal refused the application. With the consent of the parties, the Tribunal disposed of the application on the basis of written submissions and a site inspection. The applicants were legally represented. The objectors did not have legal representation. One of the respondents, Dr Robertson, seeks an award of expenses, totalling £525 made up of reimbursement of the statutory fee for lodging representations (£25, to which he is clearly entitled) and a sum of £500 in respect of the time and effort involved in conducting the case. The latter claim, which has been supported by a tabulation of the time said to have been involved, is opposed. No objection is apparently taken to the principle of an award of expenses, it being clear that Dr Robertson’s opposition to the application was entirely successful and there being no criticism in any way of his conduct of the case.
[2] One ground of opposition is that Dr Robertson has not identified “any valid expenses incurred by him” (apart from the fee outlaid). It is, however, clear that Dr Robertson is entitled to recover a reasonable payment in respect of work done, specific provision allowing such recovery being made by the Litigants in Person (Costs and Expenses) Act 1975, which applies to both the Scottish Land Court and this Tribunal. This Tribunal can remit issues of quantification of expenses to be formally audited by a court auditor, but also has power, under Rule 28(2) of the Lands Tribunal for Scotland Rules 2003, itself simply to award a specific sum. We consider the latter course appropriate in this case.
[3] Our Rules do not provide any more detailed guidance on the approach to claims of this kind by party litigants. What we have to do is to attempt to fix an appropriate payment for time and effort spent by a layman on the issues in the case. It may be of some assistance to note by way of comparison the relevant rule of the Land Court (Rule 99 of the Scottish Land Court Rules 1992), which provides inter alia:-
“ … In any application the Court may make an award of expenses (and outlays) in favour of a party litigant and where expenses of a party litigant are ordered to be paid by another party to the application the Auditor of Court may allow as expenses such sums as appear to him to be reasonable, having regard to all the circumstances in respect of:-
“ … work done which was reasonably required in connection with the case, up to a maximum of two-thirds of the sum allowable to a solicitor for that work under the current Table of Fess for solicitor …
“Without prejudice to the generality of the above, the circumstances to which the Auditor of Court will have regard in determining what sum, if any, to allow in respect of any work done may include (1) the nature of the work; (2) the time taken and the time reasonably required to do the work; (3) the amount of time spent in respect of which there was no loss of earnings; (4) the amount of any earnings lost during the time required to do the work; (5) the importance of the case to the party litigant, and (6) the complexity of the issues involved in the case.”
We may note that in this case, on the one hand, the law relating to title conditions and applications under the tribunal’s jurisdiction to vary or discharge is quite involved, but on the other hand the issue is essentially an issue of reasonableness in the particular circumstances of this case and the written submissions made by Dr Robertson consisted largely of points made (entirely appropriately) in relation to reasonableness rather than any particular legal submission.
[4] Dr Robertson claims to have spent at least 29 hours on the case; he has made reference to his normal charge out rate as a company director; (in excess of £100 per hour); but has then stated his claim at 10 hours at £50 per hour. In response, in addition to the general point noted above, the applicants’ solicitors take issue with some of the items of work claimed and time charged.
[5] We do not consider it necessary to analyse the claim of work done in detail. This is not an exact science; there is no generally applicable hourly rate (and there may be cases where different rates might apply to different parts of the work, although we do not think that that applies here); and there is always likely to be some correlation (albeit not in any exact way) between the rate allowed and the time allowed. In relation to the time claimed by Dr Robertson, it seems to us that some parts should be seen as normal aspects of owning property or at least not actual work conducting the case, for example discussions with the applicant and other neighbours. Other time allocations, for example in relation to some of the documentation and correspondence, seem excessive. In relation to the hourly rate, we would observe that reference to a ‘charging out’ rate by a business may be very misleading, because that will have to cover overheads, etc; and in any event, the litigants’ actual earnings are not in themselves the appropriate measure (there being no suggestion of actual loss of earnings by either Dr Robertson or his company), although it does seem reasonable to have some regard for the litigant’s earning capacity.
[6] We are entirely satisfied that Dr Robertson should receive some remuneration for the work done in connection with this case. Our best approximation, on the material available, of a reasonable sum in the circumstances is £360, based on 12 hours at £30. We were not persuaded that £50 per hour was justified, and arrived at £30 per hour as an appropriate rate for this case. However, as we were not accepting his hourly rate, we did not feel restricted to the number of hours to which Dr Robertson restricted his claim, and felt that 12 hours at £30 was a fair reflection.
[7] Our award of a fixed sum of expenses will therefore be £385, i.e. £360 plus the outlay of £25.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 14 May 2008
Neil M Tainsh – Clerk to the Tribunal