Kevin Mahoney and Barbara Mahoney (Applicants)
Roy Cumming and Helen Cumming (Respondents)

Subjects: 56A Village, Sandend, Banff

[1] Section 103(1) of the Title Conditions (Scotland) Act 2003 enjoins us, when dealing with expenses in cases such as this, to “have regard, in particular, to the extent to which the application, or any opposition to the application, is successful”.

[2] This application sought two things: (1) the discharge of the servitude in the 1907 disposition (“issue (1)”), and (2) the discharge of the purported servitude said, by the respondents, to have been acquired by prescription (“issue (2)”). The application was successful on (1) but not on (2). That represents divided success but it does not follow that, as the applicants contend, there should be no finding of expenses due to or by either party. That is because the two matters were not equally contentious and did not take up equal amounts of time at the hearing. Indeed it was surprising that issue (1) was contentious at all. That was a matter on which the respondents changed their position. To begin with they were consenting to the 1907 servitude being discharged but they changed their minds and argued that it should be retained. However the evidence on that matter took up very little time and we had no difficulty whatsoever in finding against them on that matter. What was really contentious, much more important and took up by far the greater amount of time, was issue (2). On that the applicants were unsuccessful and the respondents successful.

[3] We are satisfied that the proportions in which the parties were successful and unsuccessful can fairly be represented by saying that the respondents were successful to the extent of 80% and the applicants 20%. Rather than making cross-awards restricted to those percentages, we think effect can be given to this divided success by finding the respondents entitled to their expenses but restricted to 60% of the expenses as taxed.

[4] Section 103(1) does not say that the extent to which parties have been successful is the only matter to be taken into account, only that we should have regard to it “in particular”. However we cannot identify any other factor in this case which requires us to deal with the matter differently, so we have made an order in the foregoing terms.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 25 June 2019

Neil M Tainsh – Clerk to the Tribunal