Donald Parkin and Another v Martin Kennedy

[1] This application for variation of the route of a servitude right of access was settled by Joint Minute, which however expressly provided for the Tribunal to decide on any award of expenses. The respondent, who is the neighbouring proprietor, seeks an award of expenses. The applicants resist that motion and propose that there should be no award of expenses to or by either party.

[2] On a consideration of the parties’ submissions and the material available to it, the Tribunal has decided to make no award of expenses.

[3] The background is that the Tribunal previously refused an application, in effect holding against the applicants’ contention in that application that the servitude in question did not include a right of vehicular access. The applicants made the present application on the basis of accepting that decision and altering their plans, which were for an extension at the back of their house, so as to accommodate an alternative route which, as they submitted in this application, would be suitable for vehicular access.

[4] In this application, the applicants narrated that they had exhibited a drawing of their new proposal to the respondent, who had failed or refused to agree re-alignment of the route.

[5] The respondent lodged Answers, which, in summary, firstly tabled a plea of res judicata, secondly, opposed the application in principle, submitting that the existing access was essential to the servicing and enjoyment of his house, and, thirdly, argued that the applicants’ proposed alternative route would be impractical, or at least had not been shown to be practical.

[6] The agreement incorporated in the Joint Minute following some further procedure, is for variation to a route shown on an appended plan, subject to some conditions agreed in relation to various works to be carried out.

[7] It is evident to the Tribunal that the respondent has not succeeded in relation to either the first or the second submission summarised above. Further, on the material supplied, the Tribunal is not in a position to know how the agreement, with its conditions, compares with either the proposal said to have been put to the respondent before the application or the proposal in the application (except that there does appear to have been an inaccurate measurement, which has been corrected, in the plan on which the application was based). Nor does the Tribunal have any knowledge of the parties’ conduct of the negotiations which led to the agreement.

[8] In that situation, the Tribunal is not able to accept either that the respondent has succeeded in his opposition to the application or that there is anything else about the parties’ conduct through the proceedings which would justify an award of expenses in favour of the respondent. It is consistent with the information before the Tribunal that when the inaccurate measurement was pointed out, it was simply corrected.

[9] Generally, settlement of a litigation includes resolution of any dispute about expenses. Parties agreed in this case to leave that issue to the Tribunal, and the Tribunal has been prepared to proceed in that way, but the danger for a party seeking then to make a claim for expenses is that the Tribunal, not having heard evidence, has no clear basis of fact on which to uphold the claim. That is the position here. The respondent’s motion for expenses must be refused. There will be no award of expenses either way.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 July 2012

Neil M Tainsh – Clerk to the Tribunal