[1] This was a successful opposed application for variation of a title condition restricting structural alteration. The applicant seeks an award of expenses, in a fixed sum of £587.50 which she has vouched by production of a Fee Note from her solicitor.
[2] 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 this Act, make such order as to expenses as they think fir but shall have regard, in particular, to the extent to which the application, or any opposition to it, is successful.”
This provision requires us primarily to consider the question of success in the application. The principle is that the unsuccessful party has caused the successful party expense for which the successful party should be reimbursed, not by way of penalty or financial reward but simply because expense has been caused by the unsuccessful opposition. The fact that the respondents were entitled under the condition to refuse consent, and were merely seeking to retain that right, is no longer regarded as a reason to refuse expenses to a successful applicant.
[3] However, the expense must relate to the pursuit of the application after the opposition to the application has been taken. In the present case, the Tribunal is not satisfied that this can be said of the legal expense claimed by the applicant. She was not legally represented in this application, which was decided on the basis of parties’ written submissions and the Tribunal’s site inspection, which was not attended by any lawyer. None of her submissions bear the hallmark of skilled legal preparation. In her letter of 14 February 2008, applying for the award of expenses, the applicant wrote:-
“The circumstances … left me no choice but to engage a solicitor in order to defend myself with regard to:
Douglas & Others v Ritchie
I would like to try and recoup these extra expenses incurred by me under Section 103 of the Act. I enclose a copy of my solicitor’s fee notice for your perusal.”
The case referred to appears to be a civil action in relation to alleged breach by the applicant of the condition. It is the case that the solicitor’s fee note relates to:-
“advice in connection with preparation, submission and progress of Application to the Lands Tribunal for Scotland”.
We do not doubt at all that legal advice, no doubt in connection with the application, was given, but in the circumstances we are not satisfied that this fee note represents actual legal expense incurred in the handling of this application after the stage at which it was opposed.
[4] In these circumstances, despite the applicant’s success, we are not satisfied that the expense claimed by her is properly related to the conduct of this application. We refuse this application for expenses.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 30 April 2008
Neil M Tainsh – Clerk to the Tribunal