Decision of the Scottish Land Court

James Richardson & Sons (Applicants) v The Kipp (Respondents)

Case reference SLC 33/16
Lord Minginish, Chairman, and Mr Tom Campbell
4 July 2017

[1] By our order of 9 May we sustained the respondents’ challenge to the relevancy of the applicant’s pleadings, dismissed the application and allowed parties 21 days to lodge motions and submissions on expenses. The respondents have now moved for their expenses as taxed. This was opposed by Mr Santoni on the applicant’s behalf but on 7 June we received intimation from Mr Santoni that he is no longer instructed by the applicant. Nevertheless, in what follows we take full cognisance of the points made by him in his letter to the Court of 22 May, 2017.

[2] As that letter acknowledges, the normal rule in expenses is that expenses follow success. In other words, the successful party gets an award of expenses against the unsuccessful party unless there are exceptional circumstances justifying some other course. In this case the following matters are relied upon in order to justify modification of the award in favour of the respondents.

That the applicant had established the existence of a 1991 Act tenancy from 2001 until 2009

[3] It is the case that the Court was satisfied that the applicant’s pleadings contained enough to set up such a tenancy over that period. However, that was entirely academic or, at least, it had no practical effect because the whole point of this application was to prove that the applicant still had a 1991 Act tenancy and was therefore entitled to go on occupying the land. The period 2001 to 2009 was merely the first chapter in the history of matters and the decision we arrived at in relation to it did not affect ultimate success or failure in the case. In other words it was of historical importance only; part of working out the sequence of events which led to where we are now. In our view no deduction ought to be made from the award of expenses in respect of the applicant’s success on this point.

That the case could or should have gone straight to a proof, not a debate

[4] It is true that the case was heading for a proof (a hearing of evidence) before Mr Laurie moved to have it dealt with by way of debate. His purpose in doing so was to short-circuit matters, if possible, and minimise expense. Accordingly it was a proper motion to make and the Court granted it. It also achieved its purpose: the case was decided without the need to hear evidence. A lengthy proof (which this would probably have been) would have been significantly more expensive than the debate and the procedural hearing which preceded it. Accordingly there is no basis for restricting the award of expenses on this score.

[5] Nor are we persuaded that the applicant should be entitled to expenses in relation to any preparation done for the proof before it was decided to hold a debate instead. Had the applicant succeeded at the debate the case would then have gone to proof and the work already done in preparation for it would not have been wasted. Accordingly it is only because the applicant lost at debate that this preparatory work turned out to have been unnecessary but the respondents ought not to be punished for that.

That the debate could have been shortened by focusing on the dissolution of the partnership as the critical point

[6] It is true that Mr Santoni suggested this at the outset of the debate. It is also true that we came to think that there would have been merit in adopting that suggestion (see paras [4] and [25] of our judgement). But the applicant’s pleadings (quite properly) included a crave covering the period 2001 to 2009 and Mr Laurie could not, therefore, be faulted for not falling in with this suggestion (again see para [4] of the judgement). Accordingly it was perfectly proper to address this part of the applicant’s case at the debate and not foreshorten things as suggested by Mr Santoni. So the award of expenses does not fall to be modified for this reason either.

[7] That deals with all the points raised on the applicant’s behalf. Our conclusion is that there is no good reason for mitigating the award of expenses against him to any extent. This was a case in which the respondents were, to all intents and purposes, wholly successful and in which their own conduct of the litigation cannot be faulted in any way. They are therefore entitled to their expenses as taxed and we have so ordered.