NOTE
(Expenses)

E. K. (Applicant) v The City of Edinburgh Council (Respondents)

[1] This is a motion for expenses by the respondents following a hearing and our subsequent opinion dated 27 September 2017. This note should be read in conjunction with our opinion. The respondents successfully resisted an application to the Tribunal under the Housing (Scotland) Act 1987 which would have required them to sell the relevant house to the applicant. The respondents also seek sanction for the employment of counsel.

[2] The respondents point out that they were successful and there was no reason to depart from the usual rule that expenses follow success. The hearing had been unnecessarily extended by the difficult manner in which the applicant had given evidence. Also, the Tribunal had raised with parties in advance of the hearing the opinion of the Lord Justice General in Duffy v Normand 1995 SLT 1264 which indicated that a full citation of authority was required to deal with a particular legal point. The legal point was whether evidence of actual receipt of posting of a document could be relevant in the light of applicable statutory provisions as to service of notices. The Tribunal’s decision on the point has the potential to be significant beyond the current case. The application also concerned disputed matters of fact involving the credibility of witnesses. It was submitted that the house in question was a public asset which would be lost without adequate compensation so there was a wider public interest to oppose the application. It was apparent in advance of the hearing that the applicant would be an unpredictable participant in the proceedings, thus, in all the circumstances, it was reasonable to employ counsel.

[3] The Tribunal did not receive a detailed response from the applicant to the submissions, but we took her to oppose the motion.

[4] We see no reason not to apply the usual rule that expenses follow success. We consider that the respondents should be entitled to their expenses on the sheriff court scale.

[5] We agree that the point of law referred to was one which did justify the employment of counsel. We anticipate there would have been significant preparation time incurred in order to deal with it. We were grateful for counsel’s researches and nothing we say following should detract from that. However, we cannot avoid noting that the point of law was, as we said in our opinion, raised by the respondents themselves in their pleadings. They maintained a position during the hearing that there was an irrebuttable presumption in law that the notice had been served, because it could be proved that it had been left in the hands of the Royal Mail under the recorded delivery system. If that point had been correct, a good deal of the evidence which we subsequently heard, including from the applicant herself, would have been unnecessary. However, on the authorities we took the view that the respondents’ position on the legal point was incorrect. The evidence about receipt of the notice was relevant. The applicant was accordingly successful on this specific branch of the case.

[6] Although the remaining points of the respondents’ submission are not without some merit, on balance we consider that the fairest way to deal with the respondents’ lack of success on the point in question is not to allow their motion for sanction for employment of counsel.

[7] Accordingly we allow the respondents their expenses in defending the application to the Tribunal. In the absence of agreement, the expenses should be as taxed by the Auditor of the Sheriff Court at Edinburgh on the sheriff court scale. The motion for sanction for the employment of counsel is refused.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 27 November 2017

Neil M Tainsh – Clerk to the Tribunal