[1] In this application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), the Tribunal, following a hearing, granted the application in its original terms, viz. to vary title conditions to the extent of permitting a proposed mews house development and sub-division of the burdened property. The respondents’ claims for compensation were heard at the same time and refused. Reference is made to the Tribunal’s Opinion issued on 27 June 2008. The applicants have moved for expenses, including certification of an expert valuation surveyor as a skilled witness in relation to the compensation aspect. The respondents recognise that the applicants have had complete success and are entitled to an award of expenses, but make certain points in support of some modification of the award, and they also oppose the certification of the expert surveyor. The motion has been dealt with on the basis of parties’ written submissions in accordance with the Tribunal’s normal practice.
[2] In summary, the respondents first suggest that it was important to challenge the application, as much because of the precedent it would set as on the merits of the particular application, in order to have any prospect of preventing a significant change in the area to the rear of their properties. Next, it is pointed out that they simplified matters with their composite response and conduct of the hearing, to the applicants’ benefit. Thirdly, it could not be said that their position was untenable or vexatious, and they conducted the proceedings reasonably. Finally, certification of Mr Heaney as a skilled witness was opposed: firstly, because he had been instructed very late, thus putting the respondents to extra expense; and secondly, because the Tribunal, while reaching the same conclusion as he had, had noted that he had directed himself to the wrong question.
[3] In answer, the applicants argue that the respondents’ motivation or the reasoning behind their opposition is irrelevant, and in any event the tribunal’s findings on the extent of the precedent had been limited. The applicants were only seeking one award of expenses and did not see the relevance of the ‘composite’ point. In relation to certification of the expert surveyor, firstly, the timing of intimation of Mr Heaney’s report had been dictated by the timing of intimation of the respondents’ expert’s report, and in any event the respondents would have required to consult in relation to Mr Heaney’s report, regardless of when it was intimated; secondly, instruction of this expert had been necessary where the respondents had made substantial claims for compensation and had instructed their own expert surveyor: the compensation issue had been one of competing expert opinions. There was no basis for refusing certification or modifying the award of expenses.
[4] Although it did not find in their favour on the question whether the application was reasonable, or on compensation, the Tribunal readily acknowledges that the respondents’ decision, as benefited proprietors, to oppose the application and their conduct of that opposition were both reasonable. We agree that the position taken up by them was a tenable one. We do not, however, find ourselves able to accept any of the points made on their behalf in relation to expenses. The general position is that Section 103(1) of the Act requires us primarily to consider the extent of the applicants’ success. The previous practice of the Tribunal, where a benefited proprietor unsuccessfully opposed an application to discharge or vary, was otherwise. We set out our approach to application of the new provision in West Coast Property Developments Limited v Clarke and Others, LTS/TC/2005/21, 6.10.2006, particularly at pages 10 to 15. Generally, the unsuccessful benefited proprietors’ motivation in opposing does not affect the issue of expenses. We do, however, have discretion to consider the position in the particular circumstances of each case, and in doing so we essentially require to apply the general principle that the expenses are to be borne by the party who caused them. We might, for example, disapprove of some aspect of the successful party’s conduct of the case as having caused unnecessary expense, or we might find ‘divided success’ in some respect. In general, there is nothing of these kinds in the present case. In general, the applicants, like the respondents, conducted the case reasonably and with due regard for the need to avoid unnecessary expense. We are unable to identify any general reason, in the present case, for modifying the award of expenses in favour of the applicants.
[5] The respondents have, however, raised two matters in relation to the applicants’ expert witness, Mr Heaney. It was clearly appropriate for the applicants to instruct an expert for an opinion on valuation. In relation to lateness of his report and the claim that this caused additional expense to the respondents, we have considered the timings involved. There is no doubt that the respondents had, in the composite answers prepared on their behalf, made clear their intention to claim compensation on the basis of alleged material effect on the values of their properties. The applicants could therefore have instructed their expert earlier and, it can be said, did not need to await sight of the respondents’ expert report. However, we do not think it is unreasonable, in a case such as this, where the claims had only been stated in very general terms, to await the fuller indication from the respondents’ expert report of the reasoning in support of the respondents’ claims. It is not clear to us that this would have caused the respondents substantial extra expense.
[6] It is also true that the Tribunal did not entirely go along with all of Mr Heaney’s reasoning. That does not, however, in our view, take the case into the area of ‘divided success’, and it does not seem to us have caused extra expense. It cannot be suggested that Mr Heaney was not an appropriate expert to instruct, and in the end of the day his opinion in fact prevailed.
[7] In these circumstances we do not think that there is any basis for challenging the certification of Mr Heaney or restricting the award of expenses. We have decided to grant the applicants’ motion for expenses, from the date on which opposition to the application was intimated, against the four respondents who jointly opposed at the hearing, on a joint and several basis; and also to certify Mr Heaney as a skilled witness.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 September 2008
Neil M Tainsh – Clerk to the Tribunal