(i) Executor of Michael Stephenson & (ii) Geraldine S Chamberlain v Graham Thomas & Another

[1] The Tribunal refused an application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 for discharge of a title condition or a purported title condition in the form of a disused servitude right of access (“the access right”). Reference is made to the Tribunal’s Opinion of 21 November 2012. Although refusing the application, the Tribunal commented on the weakness of the respondents’ evidence in relation to the prospect of resuming exercise of the access right and indicated that if the respondents could not demonstrate that the access could be re-formed within a reasonable timescale, a future application might require to be viewed differently.

[2] The applicant, Mr Stephenson has unfortunately died since the hearing, and his executor-nominate has been sisted as a party in order to establish his estate’s liability (in this case joint and several with Ms Chamberlain). References in this Note to the applicants are references to the original applicants.

[3] The respondents’ application for an award of expenses is resisted by the applicants. In accordance with the Tribunal’s normal practice the issue of expenses has been considered on the basis of written submissions lodged by the parties’ solicitors. We have decided, in exercise of our discretion under Section 103 of the Act, to award expenses in favour of the respondents, from the date of receipt of the application onwards (including the expenses of this application for expenses), restricted to one half, reflecting our view that the respondents contributed materially to the circumstances in which the application was brought and pursued.

[4] The respondents move the Tribunal to find the applicants jointly and severally liable in the expenses of the Tribunal procedure. Their submission is essentially on the basis that expenses should follow success. They note that any future application will have to be assessed on facts then prevailing but they consider that that should have no relevance to the fact that in this application the applicants were unsuccessful. There was, they submit, no divided success. Their parallel action in the Sheriff Court was in their view required to prevent the operation of long negative prescription. They had no alternative but to raise the action for declarator. Consequently the application to the Tribunal should be considered premature and it resulted in unnecessary expenditure for the respondents.

[5] The respondents also submit that the applicants have not acted in good faith and allege that aspects of the old bridge forming part of the access were interfered with by them. They also suggest that the respondents tried to settle by indicating a willingness to buy the land over which the access right ran but no sale price was ever proposed by the applicants.

[6] The applicants submit that the normal presumption that expenses should follow success should be departed from in this case, failing which there should be substantial modification of any expenses awarded. They submit that the applicants are not bereft of the prospect of ultimate success since the respondents now have to “put their money where their mouth is and form the access route”. If they do not, they face the prospect of a further application which might well be successful. There is at least, as it is put, a “kernel of success”.

[7] The applicants recognise that they initiated Tribunal proceedings but that has to be seen in the context of the servitude’s disuse for at least some 14 years. When the right of access was asserted it was not unreasonable for the applicants to resist this. The respondents then initiated proceedings in the Sheriff Court. The applicants suggest that the respondents are the “aggressors”.

[8] The applicants note that it was accepted by the Tribunal that acquiescence was a relevant factor, not only by the respondents, who took 7 years to raise the matter, but also the fact that their predecessors in title had apparently not regarded the access as a “live right”. In short, if the respondents had “made a fuss in 2003” or shortly thereafter, proceedings before the Tribunal might have been avoided. The applicants also note that in the Tribunal’s Opinion it was stated that the case was evenly balanced.

Tribunal’s Consideration

[9] Section 103(1) of the Title Conditions (Scotland) Act 2003 provides:-

“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 general rule is that “expenses follow success” and therefore the party who does not succeed has caused expense to the successful party. The respondents as benefited proprietors opposed the application. Had they not done so the applicants would have been entitled to succeed and the action raised by the respondents in the Sheriff Court to preserve the access would have been of no relevance.

[10] The Tribunal may modify the general rule. The main underlying principle is one of causation of expense. In the present case, the applicants, although they considered the title condition no longer valid, brought this application in which the Tribunal could not rule on the validity of the access right. The question raised was whether, on the footing that the access right was valid, so that it was at least a “purported condition”, it would be reasonable to discharge it. The applicants failed to establish the reasonableness of their position and basically caused the expense. The respondents may also be correct in characterising the application as premature, given the existence of the court proceedings in which the applicants’ contentions on abandonment and prescription had been raised.

[11] However, we consider that there are other material factors in the exercise of our discretion. It seems to us that in the particular circumstances the respondents contributed to the bringing and pursuing of this application. Firstly, considering that the access right had obviously not been exercised for a lengthy period of time prior to their purchase, the respondents in our view contributed by their inaction for several further years. Secondly, we think that their failure during the proceedings to advance any clear evidence of the feasibility of resuming exercise of the right (in the face of the applicants’ evidence about that) had some effect on the proceedings. In short, while there can be no certainty in the matter, we think that the applicants are entitled to suggest that they might not have proceeded as they did in this application but for the respondents’ conduct.

[12] We consider that the appropriate way to mark the respondents’ contribution to the expense of these proceedings is by modifying the award to which they are entitled by one half, i.e. the applicants will have to pay, in addition to their own legal expenses, one half of the respondents’ expenses.

[13] We do not consider that any bad faith on the applicants’ part, in relation to alleged interference with the old bridge, had any significant effect on the course of the proceedings or should reflect in expenses.

[14] Expenses will be on the sheriff court scale and, in the event of non–agreement, will be taxed by the Auditor of Dunoon Sheriff Court.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 1 March 2013

Neil M Tainsh – Clerk to the Tribunal