1. In this application to vary a title condition to the extent of permitting the erection of a single storey double garage, the respondents initially opposed the application as a whole, but then agreed to the application in principle and sought to have certain conditions attached to the Tribunal’s order, and also sought an award of compensation. The application was disposed of on the basis of written submissions and a site inspection attended by the parties’ solicitors. The application was granted, subject to some conditions – rather less than sought by the respondents – with no award of compensation. The applicants seek an award of expenses from the date of the respondents’ representations opposing the application. The respondents argue for no expenses due to or by either party. Expenses have also been dealt with on the basis of written submissions. Expenses of court proceedings brought by the respondents for interdict before this application was brought are of course not a matter for the Tribunal to decide.
2. The Tribunal has decided to award expenses to the applicants, restricted to 80% to reflect the small measure of divided success in relation to the matter of conditions to be attached.
3. Put shortly, after referring to the statutory provision in relation to expenses of this type of application (Section 103(1) of the Title Conditions (Scotland) Act 2003) and to the Tribunal’s consideration of the principles involved in West Coast Property Development Limited v Laurence Clarke and Others, LTS/TC/2005/21, the applicants submitted that they were entirely successful. They developed a number of points in support of that basic position: the respondents’ answers had contained a plea of res judicata and inaccuracies on factual matters; the applicants had required to answer in detail; the inaccuracies would not have arisen had the respondents’ previous solicitors’ file been consulted earlier; the Tribunal had drawn attention to some perceived difficulty with the plea of res judicata; the respondents had then withdrawn their opposition in principle and reverted to opposing the terms of the order to be made; finally, they had sought conditions to be attached, and also sought compensation; the applicants had not seriously contested those conditions which had been granted and had successfully resisted the claim for compensation.
4. For the respondents, it was pointed out that there had never been a formal determination of the plea of res judicata, and it was not accepted that there were factual inaccuracies in the respondents’ representations. Thereafter, when opposition in principle was withdrawn, attention turned to the question of conditions, as to which the respondents had made serious efforts to negotiate. The ongoing opposition to the application had been justified in securing conditions which were not conceded. The question of compensation had taken up only a limited amount of time. The site visit would have been necessary, to consider the conditions, anyway. There was divided success.
5. To this the applicants responded that res judicata, and the factual matters which it was still maintained were inaccurate, had required consideration, thus causing expense. Correspondence produced by the respondents in relation to possible settlement had been without prejudice, and the respondents had in any event been insisting on conditions which were not granted. The respondents’ continued opposition had been unreasonable. If the conditions actually imposed by the Tribunal had been the respondents’ only demand, it was unlikely that the application would have proceeded.
6. There is no doubt that the applicants succeeded on the merits of the application and the respondents caused expense by opposing, albeit they withdrew their opposition in principle before an adjudication was made. In relation to the merits, therefore, there is no need to consider the respondents’ conduct, and the question is whether there is anything in the circumstances to suggest that the applicants should not receive their expenses caused by that opposition. The applicants apparently proceeded with the work before lodging this application (perhaps on the view that there was in fact permission to do so), leading to an interdict action, but there is nothing to suggest that the respondents’ consent would have been granted if they had first requested it. Nor was there in our view anything unreasonable about the applicants’ conduct of these proceedings on the merits. In relation to the merits, the applicants should receive their expenses from the date of the representations opposing. The position is clearly the same in relation to the respondents’ claim for compensation; happily, the way in which the respondents conducted that matter ensured that not very much expense was caused by that, but that does not alter the applicants’ entitlement to such expense as they did incur on it as they were clearly successful.
7. The expenses related to the dispute as to whether any conditions should be attached to the Tribunal’s order has caused us slightly more difficulty. There is, we think, something to be said for the view that had the conditions sought only been the ones granted and, had nothing else been left in dispute, the expense of contesting this issue may not have arisen. We would add that the correspondence produced by the respondents confirms that they were insisting on some claims, including their claim for compensation, which they did not ultimately achieve; so their willingness to negotiate, while commendable, does not advance their argument. However, it has to be said also that the applicants indicated unwillingness to agree any conditions; and although Mr. Geddes on their behalf sensibly indicated when we heard parties at the site visit that if the other conditions were not going to be attached, he would no longer oppose the three which were, there was a small element of divided success.
8. We do not consider it appropriate to divide the issues up and make a different disposal in relation to the ‘conditions’ issue, as everything is really bound up together. Accordingly, we can only make an award on the basis of our estimation of the approximate proportions of expense caused by each element. Endeavouring to do that, we have wondered whether the correct reflection of the element of divided success in relation to conditions is really de minimis, but have narrowly reached the view that an equitable application of the principles, on the basis of the views which we have indicated, is to award the expenses to the applicants restricted to 80%. We so order.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 March 2008
Douglas Ballantyne – Depute Clerk to the Tribunal