[1] This is an application for expenses by applicants under Section 90(1)(a)(i) and (ii) of the Title Conditions (Scotland) Act 2003 in relation to a title condition which was a real burden involving a restriction on parking. Following an opposed hearing, the Tribunal rejected a submission by the respondent that the application was premature; found that the condition was unenforceable; and decided that the application for discharge was reasonable. We refer to our Opinion dated 18 September 2009. The application for expenses and opposition to it fall to be considered on the basis of written submissions.
[2] Having considered parties’ submissions, the Tribunal finds the respondent liable to the applicants in the expenses of the application from the date of receipt of the respondent’s representations opposing the application.
[3] Section 103(1) of the Title Conditions (Scotland) Act 2003 provides that in such an application the Tribunal may:-
“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.”
[4] The applicants simply submit that expenses should follow success.
[5] The respondents submit that whilst there was “success”, the basis of the applicants’ success was not as set out by the applicants and that the determination of the Tribunal was that in the present circumstances the title condition in the form of the real burden was not enforceable and on that basis they decided that it was reasonable to discharge it. They refer to the Tribunal’s Opinion in Douglas Cassidy and Another v Hugh H. McAdam and Others, LTS/TC/2008/33, 21.1.2009.
[6] The Tribunal can find no reason in this case to modify the normal rule that ‘expenses follow success’. The applicants succeeded on all three issues raised, i.e. whether the application was premature, whether the condition was enforceable and whether the application for discharge was reasonable. It is the case that the Tribunal did not accept all of the applicants’ submissions on the validity and enforceability of the condition. The Tribunal is prepared to consider at least modification of expenses where the successful party has in fact lost on an identifiable part of the case where the amount of time taken up on that part of the case is relatively significant and it can therefore be said that although successful the party can be seen to have caused expense by taking up time on a line of argument on which they have in fact been unsuccessful. In the present case, however, we do not consider that any significant additional expense was caused by submissions on the applicants’ unsuccessful argument that the condition was unenforceable for lack of precision.
[7] Each case must be considered on its own circumstances. We did not find the case referred to by the respondent of much relevance to this case. It involved consideration as to whether objectors who maintained opposition for relatively short periods to an application which, in its initial form, did not make the development proposal on which it was based very clear, should in the circumstances of the case be found liable in expenses.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 27 October 2009
Neil M Tainsh – Clerk to the Tribunal