1. This is a motion for expenses of the appeal by the appellants against the interested party. It is being determined by written submission. In our Opinion of 23 July 2015 we decided that the interested party’s title should be rectified by removing a triangular area which, in fact, belonged to the appellants. This Note should be read in conjunction with our earlier Opinion. Our decision followed a hearing on 30 June 2015 at which the interested party did not appear. Given the interested party’s position in the matter, to which we shall turn, it is necessary to set out the procedural background.
2. The appeal followed an application for rectification by the appellants, in which the Keeper had declined to rectify the interested party’s title. The interested party’s solicitors had produced a sasine title of 1973 to the Keeper in support of her position, and as the Keeper had indicated in her answers before us, there had been conflicting evidence about possession from both sides. In accordance with normal practice the Keeper indicated she had been unable to adjudicate on the matter.
3. The appeal to the Tribunal was lodged. By letter of 26 June 2014 the Tribunal’s clerk asked the interested party to make a formal response, or to inform the Tribunal that she did not intend to take part in the appeal. There was a follow up letter of 25 July 2014. The interested party herself forwarded a letter dated 22 July 2014, received 29 July, which appeared to the Tribunal to dispute the issue of possession. She was unrepresented. That letter was treated as answers for the interested party in terms of an Order dated 31 July 2014, which interlocutor was duly intimated to her. The appellants adjusted in the light of the answers.
4. Thereafter, certain procedural orders were made by the Tribunal, including the order fixing the hearing. Correspondence included a suggestion by the respondents, and subsequently by the Tribunal, to have the case determined by written submission. The interested party was advised of these matters by letters from the Tribunal’s clerk of 11 November 2014, 23 December 2014 and 11 February 2015. The first of these letters suggested that the interested party might wish to seek legal advice in the matter. The latter suggested the possibility of determining the case without a hearing but to do so would require the consent of parties under rule 26. The interested party did not reply to the correspondence and did not give her consent to the case being determined without a hearing.
5. The Keeper’s position indicated that the matter was one of possession, and as is customary in such cases, sought the consent of the Tribunal for the Keeper not to appear at any hearing. The Tribunal was agreeable.
6. The interested party gave no indication that she was not intending to attend the hearing and gave no explanation for her absence. At the hearing the Tribunal decided to proceed with the hearing in her absence. As our Opinion narrates, we decided to hear the evidence since there was an unusual feature in the case, namely that the registered title including the disputed area had been registered for over 30 years, and also that the issues appeared fact sensitive. There had also been procedural delay in the case which we did not wish to compound.
Submissions for interested party
7. The interested party who is now legally represented indicated that her title had been registered for many years and she had been justified, initially at least, in taking the view that the land belonged to her. Her written submission to the Tribunal had not been made with the benefit of legal advice and contained little relevant content. During the appeal she had taken advice and was informed that the appellants had a good case, and following that advice she chose to take no further part in the process. The interested party noted that the Tribunal could have allowed the appeal in absence, but elected to hear evidence because of the unusual features in the case as described above. Accordingly the Tribunal would have required to hear evidence even if the interested party had given advance notice of her intention not to appear; thus the interested party’s absence did not cause the expense of the hearing. The interested party was in the same position as the Keeper and there was no motion for expenses against the Keeper.
Submission for appellants
8. The appeal had been necessary because the Keeper had declined to rectify the interested party’s title in the face of opposition by the interested party. The Keeper had indicated that she could not rectify because of a dispute as to possession. The interested party could have agreed to rectification on a voluntary basis, but had not done so. The appeal was thus rendered necessary by the actings of the interested party. Having become a party to the appeal, the interested party could have agreed to proceed without a hearing, as had been suggested to her. Significant expense could have been avoided if there had been no opposition to the appeal.
9. The general rule is that expenses follow success. This is on the premise that the unsuccessful party is taken to have caused the expense. In our opinion that premise is applicable here.
10. We accept that the appellants were forced to appeal to the Tribunal through the interested party’s opposition to rectification before the Keeper. As there appear to have been conflicting arguments about possession, the Keeper’s position in being unable to adjudicate the matter would not have been unexpected. Thus the appellants were given no choice but to appeal. Then the interested party opposed the appeal in terms of her objection of 22 July 2014. We do not think we could have ignored that objection as being irrelevant. It made points such as “I would dispute that the land has been actively farmed…” and “…we removed a portion of the existing fence giving ourselves free access to the land as we thought he might try and claim the land through adverse possession…” These points appeared potentially relevant to prescriptive possession and section 9 possession.
11. If as we were told the interested party had been advised that the appellants had a good case, and if she had accepted that advice, we find it hard to understand why she did not seek advice on how to extricate herself from the process as quickly as possible. Even without taking advice we do not think she could have been unaware that the case was proceeding and that she was one of the parties. The standard practice would have been to seek the Tribunal’s consent to withdraw from the proceedings under rule 22, on such terms as to expenses or otherwise. Had she done so it would have been clear that the appellants’ position on possession was not being disputed, and that she was not making any counter assertion. However, as matters were left, there remained a possible scenario that had we not accepted the appellants’ evidence, rectification would not have been ordered thereby leaving the interested party as registered proprietor of the disputed area.
12. The interested party contends that the Tribunal would have asked to hear evidence even if she had given, as it was put, advance notice of her intention not to appear. We note that this is not quite the same as a formal withdrawal from the proceedings under rule 22, since the interested party’s position was still, as it were, left hanging in the air. In any event, in any unopposed case seeking rectification the Tribunal has to decide how much evidence is required on a case by case basis. The Tribunal has to bear in mind the public interest in maintaining the accuracy of the land register since the public requires to have faith in the register. Often, particularly where the Keeper accepts there has been an error in registration, it is possible to determine an appeal on paper which may include substantially uncontradicted written evidence of possession. But in the present case the interested party’s unexplained absence caused the Tribunal a dilemma in determining how best to proceed, since against the unusual background we have described, there were competing sasine titles and, on paper at least, competing submissions about possession. If the interested party had positively withdrawn from those submissions in good time, subject to what we say below we think it is likely that little further process would have been required. Indeed the interested party could have avoided a hearing by making a suitable reply to the clerk’s letter of 11 February 2015. So, the Tribunal having got to the point of deciding how to determine the appeal, on any view the inaction of the interested party caused the additional expense of a hearing as opposed to a determination based upon written submissions.
13. In conclusion we think it can fairly be said that the interested party has, in substance, caused the expense of the appeal including the hearing. We find her liable in the expenses of the appeal. Failing agreement, expenses should be taxed according to the Auditor of Lanark Sheriff Court.
14. We think there is one aspect of the expenses which we should direct to be subject to modification. The appellants’ sasine title was somewhat complex and not readily self-evident. It was necessary to show that the disputed area had not been split off from the general title to the farm. There had been numerous split offs over the years and, very properly, the appellants provided evidence as to what had been sold in order to show the extent of the residual title. This exercise would, we think, have been required to a greater or lesser extent in any unopposed rectification proceedings, although not to the extent of the giving of oral evidence. It would not have been unreasonable for an interested party to request to see the relevant search sheets and split-off dispositions before conceding rectification. We would therefore direct the auditor to modify the appellants’ expenses, so as to exclude expenses in dealing with the issue of establishing the appellants’ sasine title as would have been incurred in a determination by written submission. For the avoidance of doubt, this direction relates to the study of the title deeds, not the somewhat intertwined issues of prescriptive possession and section 9 possession. We leave any other matters of modification to the auditor.