NOTE
(Expenses)

Douglas Davidson and Isobel Davidson (Applicants)
v
Bridgewater Housing Association Limited (Respondents)

Introduction

[1] This is a motion for expenses by the respondents following a hearing on 6 March and our subsequent opinion dated 4 April 2019. This note should be read in conjunction with our opinion.

[2] In support of their motion the respondents point out that they were successful in resisting an application to the Tribunal under the Housing (Scotland) Act 1987 which would have required them to sell the relevant house to the applicant, and there was no reason to depart from the usual rule that expenses follow success. They have been put to considerable expense at the instance of the applicants, and their (the applicants’) insistence on a hearing, despite warnings of the potential expense involved. Moreover, at the hearing the applicants did not engage in the legal points argued and were unsuccessful on all of their grounds.

[3] In response to the motion for expenses, the applicants have indicated their dissatisfaction with the opinion of the Tribunal and have reiterated some of the arguments presented at the hearing comprising criticism of the surveyor appointed to value the property, the poor condition of the roof and the conduct of the respondents. The applicants also point out that they are both pensioners on income support.

[4] While the Tribunal appreciates the strongly held views of the applicants, the conduct of the valuation surveyor and the condition of the roof are not relevant to the current motion. There is nothing in the written submissions, or in the evidence that we heard, which suggests the respondents were engaged in a strategy to block the sale. In fact the respondents, via solicitors, issued a formal offer to sell, and it was the decision of the applicants to withdraw their right to buy application that led to this case.

[5] The final point raised by the applicants relates to their age and financial position but any inability to meet the expenses sought is no reason to refuse a motion for expenses. The normal rule is that the successful party should not have to bear the cost of bringing the case and it is for them to enforce the award, if they can.

[6] In accordance with normal practice, the Tribunal wrote to the parties on 11 August 2017 setting out its intention to hold a hearing, or alternatively dealing with the matter by way of written submissions which would hopefully expedite matters dispensing with the need and additional expense of a hearing. While the respondents confirmed their preference for disposal based on written submissions, the applicants requested an oral hearing, unless agreement was reached based on a revised price of £107,000.

[7] On 6 September 2017, the Tribunal, concerned about the competency of the application, wrote to the applicants cautioning them against any unrealistic hopes of success and warning of the risk of being found liable for expenses if the application failed. The Tribunal again wrote to the applicants on 21 September 2017 urging them to reconsider the need for an oral hearing, but on both occasions the applicants confirmed their wish to have one.

[8] Of course, the applicants were entirely entitled to insist on an oral hearing if that was their preference, but cannot be surprised to be facing a motion for expenses from the respondents when they were clearly alerted to the consequences of failure before the Tribunal.

[9] There is nothing in the conduct of this case which suggests that the applicants have been unfairly treated. The respondents have tried to mitigate costs but have been compelled to expend resources defending the applicants’ ill-founded case and insistence on an oral hearing.

[10] We therefore see no reason not to apply the usual rule that expenses follow success and 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 Paisley, on the sheriff court scale.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 May 2019

Neil M Tainsh – Clerk to the Tribunal