Decision of the Scottish Land Court

Archie MacKinnon (Appellant) v The Crofting Commission (Respondents)

Case reference SLC 147/16
Lord Minginish, Chairman and Tom Campbell
22 September 2017

[1] By our order and note dated 24 July 2017 we refused this appeal and allowed parties 21 days in which to lodge motions and submissions on expenses. The respondents have now moved for their expenses but their motion is opposed by the appellant on the grounds (paraphrasing) (i) that the appeal has exposed shortcomings in the respondents’ handling of the application (and, no doubt, although this is not spelt out, in the history of their dealings with this croft), (ii) that whereas the respondents are funded from public funds the appellant is not, and (ii) an award of expenses against the appellant would stifle constructive criticism in the future.

[2] There is no doubt that if we were to apply the normal rules on expenses – that the cost of litigation should fall on the person causing it and that expenses should follow success – the appellant should be found liable for the expenses of this appeal. Whatever the shortcomings in the way in which the respondents handled the decrofting application which led to the decision appealed against, they cannot be said to have caused the appeal and the respondents were successful in resisting it.

[3] However, rule 88 of the Rules of the Scottish Land Court 2014 gives the court a wider discretion. Under the heading “Award of expenses” it states “The court may award such expenses in a case, or in any part of a case, as it thinks fit”. There are limits to that discretion of course: it must be exercised in a way which is reasonable having regard to the interests of justice.

[4] We therefore ask ourselves what the interests of justice require in this case. The benefits which have resulted from the appeal being taken can be summarised as (a) standardisation of the respondents’ wording of decrofting application advertisements in cases of this kind, (b) a reminder to the respondents to pay greater attention to how the existence of any demand for a croft is investigated and (c) a reminder to the respondents to bear in mind the viability of the units resulting from the division of a croft. However none of the shortcomings at which those improvements are aimed were sufficient to vitiate the respondents’ decision, otherwise the appeal would have succeeded. We therefore do not see a basis on which we can refuse an award of expenses in favour of the respondents.

[5] We do, however, think that award should be modified in order to reflect the fact that some good has come from the appeal. We think a 50% reduction is reasonable for that purpose and we have so ordered.

[6] We should comment briefly on the appellant’s second and third grounds for opposing an award of expenses. So far as the inequality of arms argument (that the Commission is publicly funded whereas the appellant is not) is concerned, we attach no significance to it. That is always the case in such appeals and it is for each appellant to bear in mind the risk of being found liable in expenses before embarking on an appeal. So far as the stifling of constructive criticism of the respondents is concerned, we trust our decision recognises that this appeal was productive of some good. We should make clear that not every imperfection in how the respondents do things will justify a modification of an award of expenses against an unsuccessful appellant: each case will be considered on its own facts and merits. In the present case we are persuaded that the shortcomings brought to light are such as to justify the modification we have made. It may be said that such shortcomings could have been exposed by correspondence with the respondents, without resort to an appeal, but that would not have carried the same weight as judicial comment.