(1) This Note should be read in conjunction with our Note and Order of 15 March 2021. We sought the applicant to confirm whether he intends to continue with the application in the light of our Note. In addition we required him to amend his application and provide further particulars as to (a) whether there is a current and live dispute with the respondents or any of them as to maintenance, liability and/or charges in respect of land held under DMB3165; (b) to set out the relevant title conditions applicable to the ward’s subjects with regard to common maintenance and liability charges; and (c) to set out the basis upon which it is argued that those title conditions do not apply to the maintenance or upkeep of the DMB3165 land.
(2) In response the applicant has provided a five page “Response.” The document is not in the form of a standard minute of amendment to the initiating application. The document states that the applicant intends to continue with the application and amongst other things seeks to address points (a), (b) and (c). Solicitors for the respondents have responded by stating that the applicant has failed to provide the further particulars sought by the Tribunal and seek dismissal of the application with expenses in favour of the respondents.
(3) As we indicated in our earlier Note, we had found the applicant’s written submissions to be difficult to understand. They are somewhat lengthy and diffuse. Our Note stated that the omission of a reference to a practical underlying dispute and lack of clarity generally would be likely to result in dismissal of the application should it not be amended. We were therefore somewhat disappointed that the response to our Order does not contain a concise and informative position on the three matters in question. It is lengthy, repeats earlier pleadings and refers to what appear to be extraneous matters such as the constitution of the Residents’ Association and a meeting to appoint factors.
(4) Turning to matter (a), the response document refers to the first respondents’ factors seeking “to charge the ward for a proportion of the expenses of the Roman Court Residents Association … being the expenses of maintaining the assets of the first respondents, together with a proportion of the first respondents’ legal costs. The applicant does not believe that these costs are a proper charge against the ward … The ward is under no obligation … to discharge the first respondents’ claim. To that extent the applicant believes that there is a current and live dispute.”
(5) Later on the document states that the Residents’ Association and its agents “have chosen to ignore the rights of my ward and continue to do so by their continuing actions to the detriment of her estate … It is my belief that unless declarator of both TMS and our responsibility for upkeep of third party asset is in writing then there are those who will choose to ignore the ruling.”
(6) In this context the respondents point out that the applicant has failed to state details of a live dispute or what charges, if any, levied by the factors are in dispute.
(7) Our Note made it clear that any attempt to revisit the sheriff court decree for maintenance charges for a period between January 2017 and January 2018 would be academic. Any determination by the Tribunal as to the interpretation or applicability of title conditions would not undo the existence of an enforceable sheriff court decree. It seems to us that the sort of language used in the applicant’s response is at least as consistent with seeking to revisit that matter – in the sense that it appears to complain about the enforcement of the decree - as it is with the existence of a subsequent and ongoing live dispute. It would have been a simple matter for the applicant to state that agents of the first respondents seek recovery of maintenance charges for DMB3165 land incurred after January 2018 had this been the case, but no such statement has been made. We are not satisfied that the necessary clarity in response to matter (a) of our Note has been provided.
(8) Turning to matter (b), it is invariably the case that under the statutory form for an application under section 90(1)(a) of the 2003 Act, the relevant title conditions or parts of thereof are set actually out, and this is what was sought in our Order. While we understand that the applicant’s position is that there is no relevant burden applicable benefiting the DMB3165 land, the Tribunal would still need to be presented with the wording of the existing common repairing burdens which do apply to the ward’s subjects in order to proceed to the conclusion which the applicant advances. This has not been done.
(9) Turning to paragraph (c), the applicant’s response document states:-
“The request that I set out the basis that our title DMB5170 do not apply to the maintenance or upkeep of the land at DMB 3165 … It is my submission this is not for me to justify, however it is for the owners of the title DMB3165 to do so …”.
(10) As we have said, the applicant’s response does not set out the basis upon which it is argued that the title conditions do not apply to the maintenance of the DMB3165 land, or if it does, it does not do so in a way which can be readily understood. We disagree with the submission that it is not for the applicant to justify his case. Any applicant coming to the Tribunal seeking a remedy under s.90 of the 2003 Act is required to justify a determination in his favour. We do not think the applicant has complied with paragraph (c) of our Order.
(11) The courts are familiar with problems arising where a party attempts to conduct complex civil litigation without legal representation, and is used to giving a degree of latitude. However, as has recently been affirmed in the Inner House and Supreme Court, the courts cannot excuse compliance with rules of procedure without proper cause: Khaliq v Gutovski 2019 SC 136, para 34 et seq referring to Barton v Wright Hassall LLP [2018] 1WLR 1119.
(12) The court has underlined the point that excessive latitude to one party can prejudice the other. In the present case we have already given the applicant a degree of latitude in terms of our Note of 15 March and we feel it would be prejudicial in terms of delay and expense to inflict the respondents with another round of process seeking to cure the defects in the application, which ultimately may or may not be possible.
(13) In these circumstances we shall dismiss the application. We wish to make it clear that this is not a determination of the merits of the application. If the applicant wishes to make his case again he would be well advised to obtain professional assistance, experienced in written pleadings. We shall allow the applicant 14 days to make a written submission if he wishes to oppose the respondents’ motion for expenses.