1. This was an application by the owners of a house in a modern housing estate to vary a title condition so as to permit ‘multi-occupancy’ by students from a university which had recently opened its main campus close to the estate. The application was opposed by neighbouring owners and was refused after a hearing which lasted two days. We refer to the Tribunal’s Opinion dated 31 October 2008. The applicants do not oppose the respondents’ basic motion for expenses. They do oppose certification of counsel, or alternatively seek restriction of that to the conduct of the proof only. They also oppose certification as an expert witness of an experienced residential conveyancing solicitor who gave evidence for the respondents on certain matters. In accordance with our normal practice, we are dealing with these issues on the basis of parties’ written submissions.
2. Having considered the respective arguments, the Tribunal has decided as follows:-
(a) The employment of junior counsel should be sanctioned;
(b) this, however, is restricted to appearance on the respondents’ behalf at the hearing and reasonable preparation therefor, including one consultation; and
(c) certification of Mr Hunter as a skilled witness should be refused.
3. The respondents submitted that the matter was sufficiently complex and specialized to justify employing junior counsel. The legislation and the applicable test were not well established. There was no direct authority and the outcome had significant implications for approximately 500 properties. The applicants had instructed counsel. Further, it having been decided that counsel would conduct the proof, he was also instructed to draft the pleadings and, since these were answers, it was known that this was an opposed matter. As to the evidence of Mr Hunter, the experienced solicitor, his evidence had been accepted. He had investigated. It was not a pre-requisite to have provided a report, which would have incurred extra expense. Although the Tribunal is a specialist Tribunal, that did not mean that it had detailed knowledge as to the purpose and use of such title conditions.
4. The applicants submitted, in relation to certification of counsel, that the application was straightforward, there were no disputed legal issues and the legislation and tests to be applied were well established and not in dispute. Counsel would not generally be certified in ordinary applications amounting to issues of reasonableness in accordance with well established principles (Council for Music in Hospitals v Trustees for Richard Gerard Associates, LTS/TC/2006/61, 24.4.2008). The applicants had themselves instructed counsel very shortly before the proof and only after learning that the respondents were doing so, in order to obtain ‘equality of arms’. Alternatively, if sanction was given, this should be restricted to conduct of the proof only, there being no requirement for the pleadings to be drafted by counsel (c.f. Mark Gallacher & Anr v George Wood, LTS/TC/2007/02, 28.2.2008). Certification of Mr Hunter as an expert witness was opposed because he had given evidence in general terms; the Tribunal was a specialist Tribunal with the necessary expertise to deal with general questions; and Mr Hunter had not undertaken investigation or particular preparation to give evidence (c.f. Court of Session Rule 42.13).
5. The Tribunal is firstly of the view that sanction for the employment of junior counsel is appropriate in this particular case. We have indeed made clear that this will not always be appropriate in applications for discharge or variation of title conditions. We also accept that in this case there was no dispute on the law as such and that, although the law was extensively re-formulated by the Title Conditions (Scotland) Act 2003, the legislation and tests to be applied can, as the applicants contended, be described as well established and not in dispute. However, application of the law to the particular case, and handling of guidance from previous cases, may sometimes be difficult. The issue in this case – whether relaxation of modern housing estate title conditions so as to permit ‘multiple occupancy’ was reasonable in the circumstances - was not one which had arisen in a contested case before. The evidence required to be handled carefully. Further, as the applicants themselves freely acknowledged, if this application had succeeded, the way would have been clear for a substantial change in the character of the estate itself, so that the issue was of importance to quite a large number of householders. We accept that the applicants themselves only instructed counsel on learning that the respondents had done so, so that the respondents’ decision to be represented at the hearing by counsel was not simply reactive. However, we consider that it was reasonable in the circumstances of this case and that the applicants should bear this expense.
6. However, we agree with the applicants’ alternative argument that sanction should be limited to conduct of the hearing of the application, which we would take to include one consultation and other reasonable preparation for the hearing. We have reviewed the written pleadings and do not think that they were of a complex or detailed nature. There may very occasionally be cases under this jurisdiction where there is such complexity as to make it reasonable for expenses to include instructing counsel to draft pleadings, but this is not one of them. The fact that it was obviously known, when the decision was taken to instruct counsel to prepare the respondents’ pleadings, that this was an opposed matter, does not seem to us to alter the position.
7. We have narrowly reached the view that it is not appropriate to sanction Mr Hunter as an expert witness. Bearing in mind that we are a specialist tribunal with both legal and valuation expertise and that we are mindful of the possible expense burden on unsuccessful parties, we do not always sanction witnesses who, although clearly expert, give what amounts to quite general evidence on matters within the Tribunal’s expertise and experience. Whether the evidence was accepted or not is not really the issue here, and we certainly do not question Mr Hunter’s experience or expertise. The subject matter of his evidence was twofold: firstly, to give the view of an experienced residential conveyancing solicitor on the use and purpose of these title conditions, and secondly to give evidence as to the value levels of houses in this estate and effect on values in the event of this application being granted. The first of these is just the sort of matter which we are in a position to judge on the basis of submissions. In relation to the second, respecting Mr Hunter’s experience as in effect an estate agent, we think that his evidence could not be regarded as specialist valuation evidence on the particular case. We agree that an actual written report is not essential and also note, contrary to the applicants’ submission, Mr Hunter’s evidence that he had been to see the location and considered the titles. On balance, however, we think that his evidence fell just on the side of more general evidence from experience rather than particular expert opinion.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 3 February 2009
Neil M Tainsh – Clerk to the Tribunal