NOTE
(Expenses)

Douglas Cassidy and Another v Hugh H McAdam and Others

1. This is a motion for expenses by the applicants. They applied under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for discharge of title conditions in a 1982 disposition, because they propose to erect an additional house, for which they have obtained planning permission, at the property which the first named applicant apparently acquired in 2003. They considered that the title condition might be enforceable by adjoining proprietors. Nine proprietors to whom intimation of the application was made on that basis lodged representations opposing the application. A short process of adjustment of the “pleadings” followed, and a hearing of the application was to take place some five months after it was lodged. All nine of the objectors withdrew their objections, in one case rather close to the date of the hearing. The application therefore became unopposed and the Tribunal made the order sought. The applicants seek expenses and also certification of the case as suitable for the employment of counsel, with a view to recovering from the objectors the expenses incurred to their solicitors and the expense of employing an advocate to represent them at the hearing.

2. Having considered the various submissions received from the applicants and the objectors, the Tribunal has decided in this particular case to make no award of expenses. This Note explains the reasons for that decision.

3. After obtaining planning consent for their proposed additional house, apparently against strenuous opposition from neighbours, the applicants lodged this application on 27 June 2008. The grounds for the application were set out very briefly. Intimation was made by the Tribunal, as required by Section 93 of the Act, to 13 neighbouring proprietors, on 3 July 2008. Nine neighbours lodged representations against the application. The applicants were allowed to lodge answers to the objections. They sought an extension of time to do so and then lodged quite lengthy answers, on 29 August 2008. Some of the objectors responded, quite briefly, to these answers, the general tenor on their part at that stage being that there was no real need for further such submissions and they were content to leave the matter for the Tribunal to decide. The application might then have been decided on the basis simply of written submissions, under Rule 26 of the Lands Tribunal for Scotland Rules 2003, but only if all parties consented. The applicants sought an oral hearing, and apparently instructed an advocate to represent them at this. Parties were advised by letter dated 16 October that the hearing would take place on 21 November. One or two of the respondents had by this stage already withdrawn their opposition to the application. All but one, Mr and Mrs Marshall, did so very shortly after the receipt of this letter. The Tribunal wrote again to Mr and Mrs Marshall on 12 November. On receipt of that letter, Mr and Mrs Marshall wrote by letter dated 14 November and received on 17 November, advising that they too wished to withdraw their opposition. Mr and Mrs Marshall’s withdrawal of their opposition accordingly came very close to the date of the hearing, although just within the period mentioned in the Tribunal’s letter of 16 October. The applicants had, in preparation for the hearing, intimated productions on 30 October and a list of their witnesses (in fact only the two applicants themselves) on 12 November.

4. The issue of expenses of opposed but successful applications to the Tribunal to discharge or vary title conditions may be seen as problematic. On the one hand, the respondents were the holders of, and benefited under, the title conditions on the basis of which they and the applicants purchased their properties: it might be seen as generally reasonable to defend their entitlement. On the other hand, since 1970, legislation has allowed the ‘burdened’ proprietor to apply to the Tribunal for discharge. Broadly, such applications are granted if the Tribunal is satisfied that it is reasonable to do so. Before the Act of 2003 the Tribunal, although it does have power to award expenses in this and other types of cases, followed a practice that even if unsuccessful in their opposition, ‘benefited’ proprietors should not have expenses awarded against them unless they had acted unreasonably in their opposition to the application.

5. The Act of 2003 changed that position. Despite extending very considerably the class of ‘benefited’ proprietors, so that neighbouring proprietors are now far more often ‘benefited’ (even under old feudal titles which were otherwise abolished), the Parliament enacted a new provision about expenses. Section 103 provides:-

“103 (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 fit but shall have regard, in particular, to the extent to which the application, or any opposition to the application, is successful.”

For reasons which we have explained in other cases (in particular, West Coast Property Developments Limited v Clarke and Others, 6.10.2006, LTS/TC/2005/21), we are clear that this provision, while it does confirm the discretion which the Tribunal (like courts) has in relation to expenses, required us to depart from our previous practice and, in the exercise of our discretion in each case, to pay particular attention to the normal rule in civil courts that expenses follow success. This ‘success’ rule is essentially based on the principle that the unsuccessful party has caused the successful party to incur expense and therefore has to pay for it. We are, however, required also to consider the particular circumstances of each case and only make such order as we “think fit”.

6. In the present case, although we have in the circumstances not considered the merits of the application to discharge, because an unopposed application such as this one became is granted as of right (Section 97(1)), the applicants must be taken as having succeeded. Prima facie, they may be entitled to expenses, subject to consideration of the particular circumstances. There is, however, no question of any award of expenses other than those of this application: the applicants cannot claim any of the expense involved in their planning application. Further, applying the general principle, we also do not generally award the expense of preparing and lodging the application to the Tribunal, because the applicants would require to do that anyway and, unlike most court situations, the ‘benefited’ proprietors have usually not in any sense caused that expense. So the only expense which we would consider awarding in the present case is the expense of answering the objections and the expense of preparation for the hearing. That is expense which can be said to have been caused by the objectors because it would not otherwise have arisen.

7. We should make clear at this stage that we can see no justification in this case for certifying the employment of counsel. Applicants are of course fully entitled to employ legal representation, including by counsel, but the question here is whether the expense of employing counsel should be expense which may be recovered from the other side. Proceedings of this nature before the Tribunal do not normally require the involvement of counsel, unless there is some difficult issue of law or complexity about the facts. The applicants have not suggested any such difficulty or complexity about this case, and we can see none.

8. Accordingly, we would not anyway be making an award in respect of the expense of instructing and meeting with counsel. The expense under consideration is therefore simply the expense involved in solicitors preparing answers to the objectors’ representations and preparing for the hearing until informed that the opposition was withdrawn. We note that the list of productions comprised some copy titles and the planning consent, all of which had in fact been lodged along with the original application, together with copies of the ‘pleadings’. There is no indication that any new documents were created or that the applicants incurred expense, or further expense, in relation to any expert witnesses (or indeed any witnesses other than the applicants themselves) during the period with which we are concerned.

9. We have looked at the circumstances of this case. The expenses in question were modest. It also seems to us that even these expenses may to some extent have been increased by the way in which the applicants conducted these proceedings. When this motion for expenses was received, the Tribunal asked the applicants to provide details of any consultation with any of the respondents prior to lodging the application in relation to discharge of the title condition. In response, the applicants provided a history of the planning and building warrant applications, but no indication of any effort at any time before applying to the Tribunal to raise or discuss with their neighbours the possible discharge of the title condition. One might have expected recent purchasers considering building an additional house and appreciating, as they must be taken to have done, that there was a title condition prohibiting such building, to have raised the matter with at least their immediate neighbours. The original application to the Tribunal contained only a bare minimum of detail of the grounds on which they satisfied the test under sections 98 and 100 of the Act. In these circumstances, it seems to us hardly surprising that the ‘benefited’ proprietors should, initially and for a short period, oppose it, and the further work for the applicants’ solicitors, in fleshing out the justification for the application, might be seen as no more than an extension of what they might have done in the first place. We can understand why the applicants might present their application in relatively short terms but the application form does set out the requirement on applicants to set out the circumstances “as fully and accurately as you can.” The history provided certainly does confirm that some at least of the objectors have been so clearly opposed to the proposal as to suggest that they might be unlikely to agree to discharge the title condition. However, the fact is that, for whatever reason, there is in fact now no opposition. The notice sent out by the Tribunal intimating the application draws attention to the possible award of expenses: had the accompanying application set out the full grounds for the application, the objectors might reasonably have been expected to decide at that stage, as they ultimately did, that it would be unwise, from the point of view of expenses, to object.

10. Not having heard the application, we can offer no view as to the accuracy or otherwise of the objectors’ representations, but we can find nothing in any way improper about them. The applicants appear to consider that the objectors were in some way abusing the Tribunal procedure by using it to re-fight the planning application, but this ignores the fact that the issues in relation to title conditions are not the same as in planning applications.

11. After the applicants answered the objections, the opposition was quite short-lived and even while the objections were live, the objectors in our view did nothing which would increase the applicants’ expense. Mr and Mrs Marshall, for example, wrote a brief letter on 19 September making two very short points and concluding that they would accept any decision made by the Tribunal on the basis of the paper submissions which were before it.

12. We have also noted that the objectors were content to have the matter decided on the basis of the written submissions already made, so that the expense of preparing for an oral hearing arose because of the applicants’ wish for such a hearing.

13. We should make clear that we are not critical of the applicants’ conduct of this case, merely looking at the circumstances relevant to expenses. We feel that such short-lived opposition to the application should not in the circumstances of this case attract an award of expenses.

14. In the case of Mr and Mrs Marshall, however, we have also considered the significance of their delay until so shortly before the hearing. Everyone else had withdrawn opposition by 3 November. Their withdrawal was received on 17 November, only some 4 days before the hearing. Mr and Mrs Marshall’s reasons for not responding sooner to the Tribunal’s letter of 16 October are not entirely convincing, but they did respond by the date actually stipulated, 17 November. There is some confusion here between the question when the opposition was withdrawn and the response to the Tribunal’s enquiry as to attendance and representation at the hearing, so that it is not strictly accurate to speak about withdrawing within a time limit set. Nevertheless, the expense which might properly be related to the respondents’ opposition, even including the two weeks in which Mr and Mrs Marshall were the only ones opposing, still appears relatively modest. In all the circumstances we do not consider that any substantial expense was caused and we think it appropriate to view the position of Mr and Mrs Marshall in the same light as that of the other respondents. We shall not make any award of expenses against them either.

15. We should also make clear that in considering this matter we have taken no account of anyone’s financial circumstances.

16. For these reasons, we refuse the applicants’ motions.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 21 January 2009

Neil M Tainsh – Clerk to the Tribunal