1. In this application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), the applicants sought discharge of two title conditions, one relating to servitude rights of access and the other relating to septic tank rights. Each of these discharges was opposed. Following a hearing and site inspection, the Tribunal granted the first but refused the second. In relation to the first, the Tribunal had first indicated that it would be reasonable to grant the application only on the basis that the applicants gave up certain reciprocal rights, and also that the respondents should have an opportunity of claiming compensation. Reference is made to the Tribunal’s Opinion dated 18 June 2009. In the event, the applicants were agreeable to having their own access right discharged and the parties also agreed a modest amount of compensation payable to the respondents.
2. The respondents now seek an award of expenses modified, in view of the divided success, to 80%, with certification for the employment of counsel. The applicants in turn seek expenses, modified to 75% to reflect divided success. This matter is to be decided on parties’ written submissions.
3. The Tribunal has considered the competing submissions and reached the view that there should be no award of expenses to or by either party in the circumstances of this case.
4. Section 103(1) of the Act 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 fit but shall have regard, in particular, to the extent to which the application, or any opposition to the application, is successful.”
The parties’ submissions amount to competing claims in relation to the overall extent of success and failure and the time taken up by the two aspects of the application. The respondents also refer to the “compromise solution” and to their success in obtaining an award of compensation, in relation to the access rights.
5. The respondents claim that the application in regard to the septic tank rights was a “key aspect” of the application. The applicants refute this and also claim that the majority of the time before the Tribunal was in fact taken up by the access issue. The Tribunal, however, sees no reason to differentiate between the claims either as to relative importance or as to time taken up. The Tribunal sees this application simply as containing two separate claims for discharge neither of which occupied significantly more time either in the pleadings (or, so far as the Tribunal can see, preparation) or at the hearing.
6. The respondents clearly had outright success in relation to the septic tank rights.
7. As regards the access rights, the Tribunal does not consider that the applicants’ success was divided in the way suggested by the respondents. Rather, the Tribunal, in its consideration of the reasonableness of this application for discharge, felt that the natural corollary would be discharge of the reciprocal rights in the applicants’ favour, and also identified a possible claim for compensation which might be open to the respondents. Happily, the parties agreed on both points. What is to our mind important is that the respondents opposed this part of the application, not on the basis that the applicants had not offered to give up their reciprocal rights or pay any compensation, but on the merits in relation to the access issue. The opposition, pursued through the hearing, was on the basis that the respondents should not be required to give up these access rights. They failed in that opposition. The respondents’ submission on expenses claims that “the Applicants were not prepared to make these concessions in advance of the Tribunal proceedings”, but there is no indication of any offer by the respondents to agree on that basis and certainly no such position was taken up at the hearing.
8. In these circumstances, the Tribunal sees no reason to differentiate in any way between the two aspects of the dispute: each party’s success in one is balanced by failure in the other. Accordingly, we have decided to make no award of expenses.
9. Had we been making any award of expenses in favour of the respondents, we would (narrowly) have decided to sanction their employment of junior counsel. Applications under this jurisdiction often do not justify the employment of counsel, but in this case we would have been persuaded that the issues were just complex enough to justify sanction, considering also the particular sensitivities of a case in which there had been considerable animosity and a complicated tale of an unsuccessful settlement agreement which might have been thought to make the respondents’ position more difficult.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 24 November 2009
Neil M Tainsh – Clerk to the Tribunal