(1) This note concerns motions for expenses on behalf of both parties against each other. It should be read in conjunction with our Opinion of 26 June 2015. In that Opinion we found that the applicant was not entitled to a discount based upon the “preserved” right to buy but only upon the less favourable provisions of the “modernised” right to buy. Our decision followed upon written submissions and a hearing which lasted about half a day. The expenses motions were based upon written submissions.
(2) The respondent submits that it should be entitled to the expenses of the application. It was successful. There was nothing in the conduct of the tribunal process which should result in any other conclusion. It sought to minimise expense by requesting that the case be determined upon the basis of written submission rather than a hearing, to which the applicant did not agree. The respondent points to the fact that the applicant raised a new argument about a week before the hearing which led to additional procedure, namely the lodging of further submissions on the new point after the conclusion of the hearing.
(3) The applicant moved for the expenses of the tribunal application and in any event resisted the respondent’s motion for expenses. We received a written submission by the applicant’s solicitor, together with representations and papers sent direct from the applicant herself. We summarise her solicitor’s representations as follows. Recourse to the Lands Tribunal is not normal litigation and this was a procedure which a dissatisfied applicant under the “right to buy” procedure was required to make. The root cause of the application was the anti-social behaviour suffered by the applicant and the respondent’s failure to comply with its duties adequately and effectively to deal with the anti-social tenants. Had it done so the applicant would have remained at her old address and there would have been no difficulty in retaining the discount under the previous “right to buy” scheme. The applicant had acted reasonably because in terms of the Scottish Government’s guidance there was scope for the exercise of discretion by social landlords. The landlords had conceded there had been anti-social behaviour but had not conceded a discretion on their part to retain the “preserved” right to buy. In these circumstances the applicant was entitled to her day in court to test the landlord’s position. The respondent had forced the applicant into moving at one week's notice and it was contended that this was to avoid “breaching their duties to give a move within three months in respect of urgent medical needs.” Moreover the applicant was of limited means comprising a pension and benefits. She would only be able to purchase her home with the assistance of friends and family. The applicant’s solicitor further submitted that any expenses granted to the respondent should be restricted to those permitted to a party litigant.
(4) The applicant’s own submissions extensively comment upon the fact that she had been attempting to be rehoused on account of anti-social behaviour of her neighbours. The respondents had not adhered to the Right to Buy Guidance Circular in “HAR1/2011” which indicates that victims of anti-social behaviour can be rehoused with the old “right to buy” retained. She sets out much of the background of the anti-social behaviour occurring in the vicinity of her previous house and contended that the council did not treat her case seriously. She indicates that she cannot afford the cost of the hearing. Her MP has made representations questioning why the respondent did not exercise its discretion in terms of the guidance.
(5) In reply the respondent points out that much of the factual averments in this case remain disputed and were not considered by the Tribunal. The function of the Tribunal was to adjudicate on a specific legal issue and not to provide a forum in which to “have a day in court”. The argument as to financial circumstances had not been vouched and was inconsistent with the fact that the applicant had concluded missives in order to purchase the subjects of her application. In any event the ability to pay expenses is not a relevant consideration. The respondent further points to Ladak v DRC Locums Ltd  ICR D39 and Wiggins Alloys v Jenkins 1981 IRLR 372 for the proposition that in awarding expenses there is no basis for drawing a distinction between the use of in-house lawyers and independent solicitors.
(6) The general rule is that expenses follow success unless there is some element of the successful party’s conduct which should be taken into account in pointing to a different conclusion. For present purposes we accept that such conduct can include conduct relating to events giving rise to the litigation. In our opinion however no conduct of the respondent has been established to us so as to justify a departure from the general rule. We should add that if the “root cause” of the general dispute is an alleged inability of the respondent to deal with anti-social behaviour of tenants, it was not the immediate cause of the litigation which concerned a dispute about the statutory formula for the discount. Separately, we are aware of no rule that impecuniosity is a reason for withholding an award of expenses.
(7) We are aware that there remains an issue between the parties. This is whether the respondent complied with its statutory obligation to give certain advice as to the right to purchase. In this connection the applicant maintains that the respondent did not advise her that she would lose the full discount under the “preserved” right to buy should she take up the new tenancy. As our Opinion explains at , we did not have jurisdiction to embark upon an inquiry into this issue and the applicant, correctly in our view, had not sought to press a case before us on the matter. As this issue remains an open question we do not think we can form any conclusion on it in the context of the motion for expenses.
(8) We have also commented at  that the Scottish Government Guidance Circular HAR1/2011 was misleading on the question of the retention of the “preserved” right to buy in cases involving victims of anti-social behaviour. One could be mistaken for thinking that the guidance was saying that social landlords have a statutory discretion under the 1987 Act to maintain the preserved right to buy entitlement in such cases, where this is not the case. (We pass no comment on the statement that some form of extra- statutory discretion might also be available.) This guidance has almost certainly misled the applicant in the present case at some stage, although it is also fair to point out that even after the respondent pointed out the correct law the applicant continued to press her case. But as the respondent is not itself the author of the guidance we do not think we can take it into account as a relevant factor here.
(9) Finally, we are satisfied that the respondent cannot be treated as a party litigant for the purposes of taxation. It has been represented by its in-house solicitor. We agree with the English cases cited that there is no basis for drawing a distinction between in-house solicitors and independent solicitors. This view is consistent with the decision in MacBeth Currie & Co v Mathew 1985 SLT (Sh Ct) 44 which held that a solicitor conducting his own case was not a party litigant.
(10) In these circumstances we grant the respondent’s motion and refuse the applicant’s motion. We award expenses of the Tribunal application to the respondent. In the event of disagreement those expenses should be taxed by the Auditor of Hamilton Sheriff Court.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 25 August 2015
Neil M Tainsh – Clerk to the Tribunal