This Note deals with a motion for expenses by the Keeper following dismissal of the appeal. The Keeper seeks the expenses of process on a party/party basis, with sanction for the employment of junior counsel. We have dealt with this part of the case by means of parties’ written submissions. The Keeper has produced submissions dated 6 February and 13 March 2019. The appellants produced submissions dated 1 and 21 March 2019. This Note should be read in conjunction with our written decision of 12 December 2017 which dismissed part of the appellants’ case, and written decision of 7 November 2018 which dismissed the remaining part of the case.
1 The usual rule should apply, namely that expenses should follow success. The Tribunal has dismissed the appellants’ case following two separate hearings in terms of the above decisions. There has already been an award of expenses against the appellants for an opposed motion on 10 October 2017.
2 Furthermore, the Tribunal could found upon matters such as the reasonableness of parties’ claims and their conduct in the litigation: see observations of Lord Gill in Adams v Adams (No. 2) 1997 SLT 150. In this connection the appellants had not progressed their claim in the way of a reasonable litigant. The proceedings had been unduly lengthy on account of the way the case had been put forward. There had been an unwillingness by the appellants to accept any matters put forward by the respondent. The Tribunal had pointed out in their Opinion of 12 December 2017, at paragraph 3, that “We must point out that the appellants, who are unrepresented, have presented their case in a somewhat disorderly fashion which makes it difficult to identify the issues. In particular, their documents which have been treated as pleadings are neither concise nor coherent and this has led to a disproportionate amount of Tribunal time being spent on trying to understand what the case is actually about.” The Keeper had experienced similar difficulties and had had to respond to a profusion of material from the appellants including frequent lengthy correspondence.
3 The Keeper sought sanction for the employment of junior counsel. The claim against the Keeper had amounted to £450,000, a substantial sum. The need to understand the nature of the appellants’ case given its diffuse presentation was another reason for instructing counsel. There were also accusations about slander and criticisms of actings of the solicitor originally dealing with the case.
4 The appellants had sought to commence the case in 2013 but the relevant form had not been intimated to the Keeper until 2015. By this time the appellants were well aware of the actions of the Keeper in registering the neighbours’ title boundaries. The Keeper apologised to the appellants in 2014 for not notifying them of the registration at the time it was made.
5 The appellants did not accept that they had caused the litigation. The appellants were not aware that the Keeper had “changed her mind” and had proceeded to register the neighbours’ title boundary in 2010, and had not been aware of this in 2013 when the appeal was raised. Had the appellants been informed at the time of the decision they would have raised court proceedings in 2010 which would have pre-empted the present appeal. Had the Keeper fully disclosed her position in 2010, the case would not have come before the Tribunal.
6 It only became clear to the appellants during the litigation that the Keeper had an unchallengeable interpretation of the 1943 disposition which was necessary to allow her to issue a new title to the neighbours. Had this been revealed in 2013 the duration of the appeal could have been restricted. The second point of the Keeper’s Note of Argument of March 2018, namely, that the MAMD was sufficient to enable registration of the relevant boundary, could have been presented to the Tribunal in 2015.
7 The appellants apologise that the Tribunal and Keeper considered their pleadings difficult to understand. They did not accept there had been frequent lengthy correspondence directed to the Keeper’s legal representatives. The relationship with the first appellants’ trustee in sequestration should not have been raised by the Keeper. The first appellant denied that he had slandered his trustee in sequestration or the solicitor dealing with the case.
8 Sanction for employment of counsel should have been sought prior to the appointment of counsel. Sanction was in any event opposed for the above reasons.
9 When the appeal was dismissed in November 2018 we noted that a large part of the appellants’ grievance related to the way in which the Keeper’s decision to register the neighbouring title was taken (paragraph 36). We do not repeat the details here other than to say that the Keeper has tendered her apologies on more than one occasion. We accept that there may be circumstances in which it is appropriate to have regard to the actings of parties before the start of litigation but we are satisfied that the general position in relation to expenses is that parties must be taken to have assessed their positions at the start of litigation. Our concern is with the cause of the expense of the process of litigation, not with the cause of the dispute. There would have been no litigation in the present case if the appellants had taken appropriate legal advice on the critical question of whether the Keeper was entitled to make the disputed registration. Exactly when the appellants were first informed of the Keeper’s decision has not been fully explored, but there is no question that they were aware by the time of the revised appeal being served upon the Keeper in 2015. That is when the Keeper first entered the process.
10 Although the point was hardly touched upon by the appellants, we note that the issue of the first appellants’ title to sue in the light of his sequestration was raised by the Keeper. This was discussed somewhat superficially at the debate in 2017, following which we reserved the point for fuller submissions. We think the matter merited being raised by the Keeper, since it affected the question as to who if anyone was entitled to any compensation. Given the outcome we think the title to sue issue should be treated as expenses of the cause – i.e. carried with expenses generally. We do not of course seek to bind the auditor on any relevant point of detail regarding an account for taxation touching upon the matter.
11 Accordingly we do not find any reason why expenses should not follow success. It is not necessary for us to determine whether the appellants’ approach to the litigation amounted to unreasonable conduct since the Keeper has not sought expenses on an indemnity basis. Suffice to say that we have no reason, with the benefit of hindsight, to modify our comments made at an earlier stage in the litigation, as quoted by the Keeper above. Nor have we reason to doubt the Keeper’s position that she has experienced an administrative burden on an abnormal scale in dealing with detailed correspondence from the first appellant. As it is, however, we would allow the Keeper her expenses on the sheriff court scale.
12 Junior counsel appeared for the Keeper at both of the above hearings. The employment of counsel requires to be sanctioned in terms of rule 28(4) of the tribunal rules. There is no requirement for sanction to be applied for at the time of a hearing, which we understand was once the case under sheriff court procedure.
13 In our opinion the substantial amount of the claim, the intricacies of conveyancing and land registration law and the opaque nature of the appellants’ pleadings, all combine to persuade us that it was reasonable for the Keeper to instruct counsel.
14 We allow the Keeper her expenses against the appellants in defending the appeal. In the event that parties are unable to agree the level of expenses, we would nominate the Auditor of Livingston Sheriff Court for taxation on the sheriff court scale in terms of rule 28(3). We sanction the employment of junior counsel.