DESCRIPTIVE RUBRIC

Tenancies-at-will – Expenses – Unsuccessful claims to be tenants-at-will – Whether expenses appropriate in such cases – Circumstances in which expenses awarded in favour of successful respondents

Harbinson & Ors v MacTaggart
11 September 2007
LTS/TW/2005/01-08

8 applicants claimed, under Section 21(1) of the Land Registration (Scotland) Act 1979, to be ‘tenants-at-will’ of certain beach huts. The Tribunal dismissed the applications following legal debate, a decision upheld on appeal to the Court of Session. The matter of expenses before the Tribunal was remitted to the Tribunal to decide. The applicants opposed the respondents’ motion for expenses. They argued that expenses were not necessarily appropriate in tribunal proceedings and that there had been no awards of expenses in certain Tribunal cases and one Scottish Land Court case on the existence of tenancies-at-will. There had been a stateable argument in favour of their case, which was promoted by the local MSP, had considerable public support and was ‘far from hopeless’. Further, the claims would never have been made had the respondent landlords not sought ‘extortionate’ rent increases.

Held, awarding expenses to the respondents, the Tribunal’s usual practice in the exercise of its discretion under Rule 28(1) of the Lands Tribunal for Scotland Rules 2003, was to exercise it in the same way as courts, i.e. by recognizing that expenses should normally follow success. It was incorrect that there was any decision of the Tribunal indicating any different position in this type of case, there having been two cases in which, of consent, no award had been made and one in which parties had agreed that expenses should follow success and the Tribunal had considered that appropriate. The Land Court case had apparently involved a dispute among members of the tenant family rather than between landlord and tenant. There was no principle that expenses should not be awarded in cases which failed only on points of law; ‘stateability’ was nothing to the point; nor had success been divided, in an application described by the court as ‘fundamentally irrelevant’. The Tribunal was in no position to judge whether the matter had been brought about by the landlords’ extortionate demands, or on more general equitable arguments, which matters were anyway irrelevant. Sanction for counsel, which was not opposed, was also granted.

Authorities referred to:-

McCann & Anr v Anderson 1981 SLT (Lands Tr) 13
Ferguson v Gibbs 1987 SLT (Lands Tr) 32
McLean v Kershaw 1993 SCLR 145 (Scottish Land Court)
Conochie v Watt, 7.9.1993, LTS/TW/1992/1 McPherson v Walker (No 2) 2002 SCLR 142 (Inner House)


See full decision:  LTS/TW/2005/01-08 (Expenses)