1. This is a motion for expenses by the applicants. They seek expenses of the application from the date the respondents intimated opposition to it. In addition the applicants seek certification that the application was suitable for the employment of both junior and senior counsel. They also seek an additional fee. The respondents oppose the motion and seek a finding of no expenses due to or by either party failing which a modification of any award to 10% of expenses or such other percentage as to the Tribunal seems just. They submit the cause was suitable for the employment of junior counsel only. The motion for an additional fee was opposed.
2. This note should be read in conjunction with our Opinion of 2 December 2015. Following a three day hearing we upheld the application by holding that the title conditions contained within the relevant deed of declaration of conditions did not constitute valid real burdens and were not enforceable as real burdens quoad the subjects owned by the applicants. We upheld one and only one of the applicants’ arguments which was that the deed of conditions was void for uncertainty since the benefited property had not been adequately identified with reference to the “four corners” rule. The applicants had tabled six arguments, several of which contained sub-arguments. The first argument was that the relevant burden was a manager burden which had expired. This was deleted shortly prior to the hearing. The second argument was that the burden did not “relate” to the burdened property; the third was that the burden unlawfully created a monopoly; the fourth was that the burden was contrary to public policy for various reasons; the fifth argument was that the burden contravened the Competition Act 1998. These arguments failed. The sixth argument was that the burden was void for uncertainty for a number of reasons including the particular point which, as we have indicated, was upheld.
3. The applicants submitted that they had been wholly successful in the sense that they had succeeded on the only claim in the application, namely a declarator that the deed of conditions was not enforceable. They recognised that in terms of section 103(1) of the Title Conditions (Scotland) Act 2003 that the Tribunal:-
“… may, in determining an application made … 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. Reference was made to what the Tribunal said in West Coast Property Developments Ltd v Clarke 2006 LTS/TC/2005/21:-
“The position is, however, slightly more complicated, because the new rule is not precisely that ‘expenses follow success’, rather that the extent of success is to be a particular consideration. That would seem to require consideration of the extent of success of the applicant or the opponent without the necessity of any formal tender. We think that this is a reference to the extent of success of the application (or the opposition to it) rather than of individual arguments. For example we do not think it justifies any approach of counting up success in relation to the individual factors listed in section 100, unless some particular chapter or area of evidence in submission (on which the applicant has not been successful) can be identified as having taken up a substantial amount of time.”
5. Further reference was made to Elliott v J & C Finney (No. 2) 1989 SLT 241 and Clarke v Grantham 2009 LTS/TC/2008/49 where, in the latter, the Tribunal said:-
“6 … 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 in a line of argument on which they have in fact been unsuccessful.”
6. It was submitted that in the present case the unsuccessful arguments did not take up significant time when considered in the context of the whole submissions which required the setting out of the detailed factual background, the relevant provisions of the 2003 Act, the relevant case law and to deal with the nature of the burden as raised by the Tribunal. At most there should be a modification of expenses by 25%.
7. In response to the respondents’ arguments it was submitted that the Tribunal was not concerned with “substantive justice between the parties” but with the extent to which the application was successful, which was 100% successful. It was also submitted that the respondent had treated the case as a test case about the landowning model and it would have been open to them to concede that the deed of conditions was unenforceable on the four corners rule without any more general decision on the landowning model.
8. The applicants submitted that the cause was suitable for the employment of senior and junior counsel. The particular landowning management scheme had caused controversy and academic discussion. It was a difficult and novel area of law involving issues under the 2003 Act including the extent to which the Act had changed the common law. The Competition Act 1998 and Unfair Terms in Consumer Contracts Regulations 1999 all required to be considered by the Tribunal. Junior counsel had a special interest in competition law which is why he was engaged and was otherwise fully involved in the whole case. It was submitted there were substantial issues at stake for the applicants regarding whether their house was bound by the onerous obligations in the deed of conditions.
9. Turning to the additional fee it was submitted that there should be an uplift in the solicitors’ fees of at least 25% having regard to the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993. Although the case had proceeded to debate with counsel involved it was a difficult test case of significant public importance and to the client.
10. In terms of heading (i) complexity of the cause and the number, difficulty or novelty of the questions raised it was submitted that the cause was complex because of its novelty and the contrary opinions that had been expressed by different interests and experts in the public domain. The solicitors had to consider the numerous issues and advice from counsel on the points raised in the application.
(ii) The skill time and labour and specialised knowledge required of the solicitor
It was submitted that the cause concerned technical conveyancing issues; the solicitors’ conveyancing department had provided input; the issues had to be explained to the applicants; the solicitors had spent at least ninety hours including background reading.
(iii) The number and importance of any documents prepared or perused
The number of documents was voluminous; the papers included evidence provided by conveyancing experts to the Scottish Parliament, there was an extensive conveyancing file relating to the applicants’ purchase of their property and lengthy title deeds. There were two lever-arch files of general papers; there were two lever-arch files of authorities and one lever-arch file and one ring-binder of productions which all required to be copied.
(v) The importance of the cause or the subject matter of it to the client
It was submitted that the cause was of considerable importance to the client since it would determine whether or not the house was bound by the onerous obligations. The cause had a “more general importance” in terms of future deeds of conditions as the means of sufficiently describing amenity ground and the like.
(vi) The amount or value of money or property involved in the cause
It was submitted that although the sum potentially payable was not significant, the terms of the deed of conditions had an impact on the potential value of the property.
11. The respondents founded upon paragraph  of the Tribunal’s Opinion in which we said:-
“The applicants fought this case on a very wide front but (on the majority view) have been successful only on a relatively narrow and technical issue. As an attack on the landowning model per se it has failed. The applicants have succeeded not because of any structural flaw in the model but because the benefited land property was not adequately identified in the constitutive deed.”
12. The respondents submitted that they had been overwhelmingly successful in respect of the issues argued before the Tribunal. The applicants had succeeded on only one ground, but it would not do justice between the parties to assess “success” on those terms.
13. Reference was made to Howitt v Alexander & Sons 1948 SC 154 per Lord President at 157, Shepherd v Elliott (1896) 23 R 695 per Lord President at 696, Fleming v North of Scotland Banking Co (1882) 9 R 659; Dalkeith Police Commissioners v Duke of Buccleuch (1889) 16 R 575; Dean v Walker (1873) 11 M 759. In the light of these authorities it was submitted that the Tribunal should look to who had caused the litigation and that it was well recognised that where there was divided success it was appropriate for no expenses to be awarded due to or by either party.
14. It was further submitted that it was the applicants who had brought the application as a “test case” with the clear aim of challenging the landowning model. The respondents were faced with a challenge to the very basis of their business and were bound to resist the application on every front. The ground on which the application succeeded however was one which arose purely from the particular terms of the title deeds; the remaining grounds on which the respondent had succeeded were the ones which had raised more fundamental and systemic issues concerning the “Greenbelt” landowning model.
15. Accordingly there should be no expenses found due to or by either party, or in any event any award of expenses in favour of the applicants should be restricted to 10%, being a figure which might represent a reasonable estimate of the proportion of time and cost which was actually incurred in relation to the issue on which the applicants succeeded.
16. With reference to the cases cited by the applicants, it was clear that the applicants had lost on “an identifiable part of the case” in that they had been unsuccessful in relation to four identifiable parts, and had departed from one substantive argument.
17. The respondents submitted that the issues raised in the case ought reasonably to have been argued by junior counsel alone.
18. Turning to the motion for the additional fee it was submitted under reference to Scottish Lyon Insurance Co v Goodrich Corporation  CSIH 34 that the uplift is to reflect unusual and burdensome work which has to be carried out by the solicitor. This was a case which had very much been in the hands of counsel on both sides. Further reference was made to Szaranek v Edmond Nuttall Sons & Co (London) Ltd 1968 SLT (N) 48, in that the case required to be an abnormal one of its own type, judged in the light of the factors to be taken into account.
19. In terms of heading (i) complexity of cause and number, difficulty or novelty of questions raised, it was submitted that the applicants had only been successful on the application of the “four corners” rule which was not of itself a complex or novel point. Regarding the other points, there were no difficult factual issues which required significant investigation. In terms of head (ii) the skill time and labour and specialised knowledge required of the solicitor, it was submitted that the actions undertaken by the solicitors detailed in the motion did not appear to be more than normal and it did not appear why specialised conveyancing input was required. Ninety hours of time would be manifestly unreasonable and there were no skilled witnesses or experts required for the conduct of the case. Turning to head (iii) the number and importance of documents prepared or perused, the documents did not appear extensive. The titles were standard form land certificates. In terms of head (v) the importance of the cause or the subject matter to the client, the payment obligation on the applicants amounted to no more than £164.42 per year and it could not be said that this factor imposed some special burden on the applicants’ solicitors. Similar comments could be made regarding head (vi) the amount or value of money or property involved in the cause and there was no evidence before the Tribunal to take the view that the impact on the potential value of the property could be significant.
20. We are satisfied that this is a case in which there should be modification of expenses. In terms of the Tribunal decisions cited to us we accept that the successful applicants have in fact lost on identifiable parts of the case which in themselves are significant. The applicants can readily be said to have caused expense by taking up time on the unsuccessful arguments. The ground upon which the applicants succeeded was relatively straightforward in our view. We think that the majority of the overall burden of the application was taken up by the unsuccessful written and oral arguments, and that by some margin. We recognise that much of the introductory submissions and material would have been required to be put before us in any event. But that does not outweigh the fact that the respondents have succeeded on numerous points. Very broadly, we would allow the applicants their expenses, modified by sixty percent.
21. We accept that the arguments advanced were technically complex and, in addition, there was a wider public interest in a number of the issues being debated. It was important that we had full and concise submissions. Accordingly we sanction the application as suitable for both junior and senior counsel.
22. Turning to the motion for an additional fee it has to be recognised that this is a fee which reflects abnormal and burdensome work required by the solicitor. We accept it was not a “normal” title conditions case, and would have been out of the ordinary in terms of Sheriff Court cases upon which taxation will be based. The case was also well prepared. But we must also recognise that both junior and senior counsel were involved and the case was disposed of at debate.
23. Turning to the specific heads in terms of (i) it seems to us that although the questions raised could be said to be complex, numerous and novel they were all essentially legal issues predominantly to be dealt with by counsel. Moreover we cannot ignore the fact that the single argument upon which the applicants did succeed was, as we have said, not particularly complex. In terms of paragraph (ii) we accept that there was skill, time, labour and specialised knowledge required of the solicitor to some extent going beyond what would be expected in other cases, but lengthy reading time, labour etc. can be explained by the lengthy written arguments which were unsuccessful. We are not therefore persuaded to allow an uplift under this head. We are unimpressed with the other grounds (iii), (v) and (vi) substantially for the reasons put forward by the respondents and shall say no more about them. Accordingly we shall refuse the motion for an additional fee.
24. We allow the applicants the expenses of the application from the respondents from the date on which the respondents intimated opposition, modified by sixty percent (i.e. awarded to the extent of 40%). We certify the application as suitable for the employment of junior and senior counsel. We refuse the applicants’ motion for an additional fee. In the event that expenses cannot be agreed the matter will be required to be taxed by the auditor of Alloa Sheriff Court.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 19 April 2016
Neil M Tainsh – Clerk to the Tribunal