[1] The successful respondents in this application for variation of a title condition have lodged motions for expenses. For the circumstances of this application and our decision and reasoning, we refer to our Opinion dated 22 December 2009. The points in issue in relation to expenses are: the respondents’ entitlement to expenses (including possible modification); certification of an expert witness who did not in fact give evidence at the hearing (certification of two others not being opposed); and sanction for employment by the first named respondents of counsel. In accordance with the Tribunal’s normal practice, these matters are being dealt with on the basis of written representations.
[2] In summary, we have decided as follows:-
(i) Each of the respondents is entitled to the expenses of opposing this application, without modification;
(ii) Each of Messrs Rae, Hutchison and Harper is certified as an expert witness; and
(iii) The employment of junior counsel for the first named respondents is sanctioned, limited to appearance at the hearing, including one consultation and preparation for the hearing.
[3] The applicants opposed awards of expenses in favour of the respondents (or alternatively sought modification thereof), submitting that, although expenses normally followed success, the Tribunal had a discretion which should be exercised in the applicants’ favour because this was a reasonable application to implement a development for which planning permission had been granted and which the Tribunal had found to be, but for the condition, a natural development on an obvious residential site and a reasonable use of the land. The application had been reasonably made, with reasonable anticipation of a successful outcome. The applicants’ conduct had been reasonable.
[4] In the event of expenses being awarded, the applicants did not oppose certification of the two surveyors, Messrs Rae and Hutchison, who had prepared reports and given evidence for the respondents, but did oppose certification of Mr Harper, an architect who had prepared a “mock-up” photograph of the applicants’ proposed dwellinghouse seen from the first respondents’ garden. Mr Harper had not given evidence, nor had his report been referred to in evidence.
[5] The applicants also opposed sanctioning the employment of counsel. This, it was submitted, was a case of no particular novelty or complexity, the issue being an issue of reasonableness in accordance with well established principles. While the applicants themselves had counsel, this was a matter of choice not necessity. There was nothing novel about the case.
[6] Each of the respondents relied on their complete success in the case (including on the issue of compensation if it arose). Had the respondents not opposed, the application would have been granted unopposed, as of right. The applicants had caused the respondents’ expense. Accepting that the Tribunal had a discretion, the normal rule was that expenses followed success. Most cases would be expected to be brought reasonably, or stateably. Planning considerations were different from the issues of private rights involved in applications to discharge or vary. In any event, the applicants’ conduct had not been reasonable. The planning permission was only in outline and the applicants had only produced detailed plans for the proposed house at a late stage. They had also not made any approach to the respondents to discuss or negotiate before the hearing.
[7] As regards Mr Harper’s position, he had produced the two ‘mock-ups’ which were referred to at the hearing and were clearly relevant, particularly as the applicants had not produced any representation as to the impact on the respondents’ property. He had not been called as a witness, nor had his report explaining his methodology been referred to, because it was evident by that stage that no particular issue was being taken as to the ‘mock-up’ presentations.
[8] As regards the employment of counsel, the first respondents pointed out that the applicants had themselves considered that the case merited counsel. The respondents’ concern about the applicants’ proposed development went beyond the financial considerations which had presumably influenced the applicants’ decision. The fact that the second respondent had not employed counsel was partly because she was aware that the first respondents had. The circumstances surrounding the relatively recent imposition of the title conditions were novel.
[9] In our opinion, each of the respondents is entitled to expenses on the normal basis, without modification.
[10] Prior to the Title Conditions (Scotland) Act 2003, the Tribunal followed a practice of not generally awarding expenses against unsuccessful benefited proprietors unless there was something unreasonable about their position. The rationale was that such proprietors were defending their entitlement under title conditions. The effect of section 103(1) of the Act of 2003 is to end that practice, substituting the normal general rule that ‘expenses follow success’ even in that situation. Benefited proprietors who might quite reasonably oppose applications to discharge or vary run the risk, if unsuccessful, of being found liable in expenses.
[11] A fortiori, burdened applicants, who do not start with entitlement but rather seek to have title conditions overturned, are at risk, under the normal rule about expenses, if their application is unsuccessful. Their application may very often be characterized as reasonable, particularly no doubt where they have a planning permission, but that in itself is of little or no avail if they do not succeed. The rationale of the expenses rule is that the party who does not succeed has caused expense to the successful party.
[12] The Tribunal does have some discretion in the matter of expenses, but this is exercised on the basis of the general rule that expenses should be borne by the party who has caused them. Thus a successful party may sometimes not be awarded full expenses because he has, in one way or another, brought some element of the expense on himself. Or, very exceptionally, he may not be awarded any expenses. Again, very exceptionally, the court or tribunal may feel it appropriate to mark disapproval of the successful party’s conduct in some respect. The particular circumstances have to be considered.
[13] Looking at the particular circumstances of this case, we can find no reason at all why the respondents should not receive their expenses. They had to resist this application and there is no suggestion that any conduct by them in any way increased the expense or caused expense to the applicants. There is no criticism at all to be made of their position. Even accepting the applicants’ position to be reasonable, the respondents are entitled to expenses. Nor has any valid reason been advanced for any modification.
[14] We do not find it necessary to consider further whether the applicants’ conduct was in any way unreasonable.
[15] We are also satisfied that Mr Harper should be certified as an expert witness who prepared a report with a view to giving evidence in the proceedings. His report described how he produced the two ‘mock-up’ photographs, which were clearly relevant and were referred to in the evidence. He was using relevant expertise. Such graphic representations of a development proposal might be open to challenge. We accept the respondents’ explanation as to why he did not actually give evidence. The fact that his expertise was not in the event challenged, so that he was not required to give evidence, does not affect his status as an expert witness. If any question arises as to the extent of expenses incurred to him, for example if he did actually attend court ready to give evidence, that will be a matter for the auditor.
[16] We have also, quite narrowly in this case, decided to sanction the employment by the first respondents of counsel. The applicants correctly point out that we do not always do so. The applicants’ own decision to instruct counsel is some indication of the suitability of the case for the employment of counsel, but we agree that it is not conclusive and we also note that there is no suggestion that the first respondents only used counsel because the applicants did so. Equally, the fact that the second respondent did not employ counsel is also not conclusive. In this case, it seems to us that the matter was of considerable significance, going beyond financial significance, to the first respondents in particular. Further, although the case was decided on well established general principles, we are persuaded that the particular title conditions involved were slightly outside the normal run of building restrictions, so that the arguments required particularly careful handling. We are of course far from saying that the case could not have been handled by a solicitor, but on balance we think that the employment of counsel was reasonable.
[17] However, as in other cases in which we have sanctioned the employment of counsel, we consider that this should not go beyond the actual hearing together with necessary preparation, including one consultation with the clients. We do not consider that the “pleading” stage, particularly for respondents, of a case such as this requires counsel’s involvement.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 19 April 2010
Neil M Tainsh – Clerk to the Tribunal