In this eNewsletter:

• Expenses in the land tribunal for Scotland 
• Previous practice 
• New statutory provisions
• Facts of the case 
• Reasoning of the lands tribunal 
• Advice to clients
• Further information

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West Coast Property Developments Limited v Lawrence Clarke and Others

Expenses in the land tribunal for Scotland

The lands tribunal has issued a decision on the award of expenses in cases before the tribunal.  This decision innovates slightly on the previously understood position and raises issues that clients should be made aware of at the outset of any application to the lands tribunal, particularly if they are opposing an application.
 

Previous practice

As the lands tribunal themselves note, the previous practice was not to award expenses against a party opposing the discharge or variation of a title condition, unless that opposition was in some way unreasonable.  However, in this case, the tribunal found that the wording of s103(1) of the Title Conditions (Scotland) Act 2003 required them to change this practice.

 

New statutory provisions

Section 103(1) provides:
 
“The lands tribunal may, in determining an application made under this part of this act, make such order as to expenses as they think fit but shall have regard, in particular, to the extent to which the application or any opposition to the application is successful.”

This statutory provision largely reflects the considerations to be had in mind when any other court is making a determination on expenses.  The usual rule is that expenses follow success, but there may be exceptions to that rule if the successful party’s conduct in some way prolonged or extended the scope of the action.

 

Facts of the case

West Coast Properties’ predecessors in title wished to build a mews house at the bottom of a garden in contravention of a title condition.   An application was made for discharge of the relevant condition and this was notified to the 31 benefited proprietors.  9 benefited proprietors objected.  3 attended the hearing, which took place over a period of 2 days.  Whilst the applicant was legally represented, none of the objectors had legal representation.

The applicants were ultimately successful and applied for expenses against the objectors jointly and severally.  This was opposed by the objectors.
 

Reasoning of the lands tribunal

The tribunal found that as a consequence of s103(1), the primary consideration was the extent to which the successful party had been successful and not whether the opposition was reasonable, as had been the position under the old law.  The determining factor in awarding expenses was success not reasonableness.

As a consequence, while those objecting to the application could not be said to have acted unreasonably, and indeed were successful in that they persuaded the tribunal to vary the condition rather than discharge it completely, the applicants were successful in removing the impediment to the development they wished to carry out and were entitled to expenses.  These expenses were modified to 70% to reflect that they had, at a late stage, questioned the title and interest of the benefited owners to object. 

Significantly, those objectors who had submitted written objections at the outset but played no further part in the proceedings also had an award of expenses made against them.  This was on the basis that by objecting, they had caused a hearing to be held and the applicant to be put to the cost of proving their position.  The tribunal took the unusual step of awarding a particular percentage of the expenses against each objector, rather than awarding expenses against them jointly and severally, to reflect the different parts played by the different objectors.

Advice to clients

Clients involved in lands tribunal applications should be made aware of the possibility of an award of expenses being made against them, even if they only make written objections and take no further part in proceedings.  This is an unfortunate development as it may deter some people from seeking to insist upon their rights.  It is important however, if legally advised, that they are clear as to the possible down-side of taking part in the process.

Equally, they should be made aware that if they are successful, they have a greater chance now of obtaining an award of expenses in their favour.

It should be noted that expenses will be awarded on the sheriff court scale, and that usually a successful party will recover around half of their expenditure, due to the difference between the sheriff court scale rates and our rates.

Further information

For further information, please contact Fiona Stephen or Kirsty Slee.

The full case report can be found here.