Decision of the Scottish Land Court

Stornoway Windfarm Limited (Applicant)
v
Crofters having rights in the Stornoway Windfarm site (Respondents)

Case reference SLC/59/17
before
Lord Minginish, Chairman
12 April 2019

Introduction

[1] By our decision of 1 March 2019 Mr Campbell and I ruled on the matters debated before us on 12 December 2018. Two matters arising from that decision have now come before me for consideration and this order and note deals with those.

Request for a special case

[2] The first is a request by the respondents that a special case be stated for the opinion of the Inner House of the Court of Session, in terms of sec 1(7) of the Scottish Land Court Act 1993. That request raises a single, short, sharp question as to whether “an Application for consent made to the Land Court under s. 19A of the Crofters (Scotland) Act 1993 [is] incompetent or irrelevant by reason of a failure on the part of the Applicant to specify and offer a capital payment as part of ‘fair recompense’ to each member of the crofting community affected by the proposed development”.

[3] Because our said decision was not a final decision the request for a special case must, in terms of Rule 83(2) of our Rules, show “why it is appropriate, in the interests of a just and fair disposal, that a special case be presented at the stage the proceedings have reached” and sub-paragraph (b) of that Rule gives me discretion, in the interests of such a disposal, to decide to defer sending the special case to the Court of Session until further procedure in this court has taken place.

[4] In the letter whereby they ask for a special case to be stated, Gillespie Macandrew say that “the Respondents accept that, in all the circumstances of this case and given the determinations of the Court so far, it may in any event be considered more appropriate in the interests of a just and fair disposal to await full hearing on the evidence before the proposed appeal be determined”. Standing that comment there is little I need say except that I agree but I shall, in fact, make one or two comments.

[5] The basic question is whether a “just and fair disposal” of this application requires the point raised in the request for a special case to be decided now. In my view it does not. If the respondents ultimately fail as a result of our ruling on the point under appeal, the special case can proceed then. If, on the other hand, the respondents lose on other grounds it can be conjoined with any appeal that arises out of our final decision. If, on the other hand, they are successful on the merits of the case, they will not, presumably, be interested in pressing the special case.

[6] I also take into account the interests of the applicants. This application has already been before the Court for getting on for two years and it is time it was progressed to a conclusion. It is not fair to the applicants to interpose a period of what might prove to be unnecessary and fruitless delay at this stage.

[7] Finally, in relation to this matter, in their opposition to the special case proceeding at this stage, Pinsent Mason LLP, for the applicants, say that I should also consider the prospects of success for the respondents in the special case. They argue that it is unlikely that the Court of Session will find in the respondents’ favour. While I adhere to the reasoning contained in the decision of 1 March, I do not think I should express a view on that and I have not, therefore, taken what is likely to happen in the Court of Session into account.

Decision

[8] Accordingly my decision on this matter is that the special case procedure be put on hold until the merits of the application have been decided.

Uplift in fees

[9] The respondents’ agents have also moved for an uplift on the fees chargeable in terms of the award of expenses made in favour of their clients in our said order. They do so under all seven sub-paragraphs of paragraph 5(b) of Schedule 1 to the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993. The motion is opposed by the applicants’ agents and I rule on the various heads of claim as follows (using the numbering of para 5(b)):

(i) The complexity of the cause and the number, difficulty or novelty of the questions raised.

[10] As the applicants’ agents observe in their note of opposition to this motion, the way in which the respondents and their agents chose to deal with the complexity, number, difficulty and novelty of the questions raised by this application was to employ senior counsel and we have already granted sanction for that. Although it was necessary that the instructing agents understood what the application was about, once they had decided to employ senior counsel, it was not, in my view, necessary for them to grapple with such complex questions as the case threw up. In any event some light had already been shed on some of the questions raised in the earlier cases of Coigeach Wind Power Limited v Achiltibuie Common Grazings Shareholders & Ors, SLC/109/15, decision of 17 June 2016 and Viking Energy Wind Farm LLP v Crofters having rights in the Common Grazings of the Townships of Sandwick, Sweening & Laxo & Ors, SLC/31/16, decision of 5 September 2018. The novel matters in this case were, it seems to me, largely the fruit of counsel’s analysis of the law, which brought out points not previously argued. Some of these were certainly complex, as well as novel, but it seems to me that counsel takes the credit for them, not the instructing solicitors. So no uplift is merited under this head.

(ii) The skill, time and labour, and specialised knowledge required of the solicitor

[11] The specialised knowledge claimed here is knowledge of the electricity market, electricity law and crofting law. So far as crofting law is concerned, almost every crofting case which comes to this Court involves the need for some knowledge of crofting law and, whilst sec 19A is a relatively new provision, as we have already remarked, a certain amount of light had already been shed on it before this case came along. So I am not persuaded that this case required a significantly greater specialist knowledge of crofting law than most of the cases which come to us.

[12] I am similarly unimpressed by the claim that the case required specialist knowledge of the electricity market or electricity law. I accept that it required an understanding of how the electricity market is structured and what is required, in terms of a Contract for Difference and the installation of an interconnector cable, to allow this project, if it materialises, to get its product to market. But these things were understood, agreed and undisputed on both sides of the bar and the case did not involve any issue, in the sense of contested issue, of electricity law.

[13] I am more impressed, under this head, by the claim in so far as based on time and labour, the time and labour concerned being the time and labour necessitated by having to marshal the representation of 60 respondents who had previously represented themselves. I can see that that did make demands on the time and labour of the instructing agents and I do consider that an uplift is justified on that ground.

(iii) The number and importance of any documents prepared and perused

[14] There is a degree of overlap between what is claimed under this head and the previous head, in as much as the additional documentation relied upon is documentation required to take instructions from and co-ordinate 60 respondents. However, some of that documentation, such as letters of engagement, would have been standard documents generated by the solicitors themselves, rather than the complex technical or expert reports one tends to think of under this head. Moreover, as the applicants’ agents point out, so far as re-casting the answers already lodged by each of their 60 clients is concerned, it has to be borne in mind that most, if not all, of these were in identical, or near identical terms.

[15] It is also said under this head, simply that the sec 19A application is complex. The scheme itself is complex, as all such schemes are. It required to be studied and understood by the instructing solicitor as well as by counsel. On the other hand, no expert reports or technical documents are relied upon and it cannot be said that the case has produced an unusually large number of productions. Nevertheless, on the basis of what is said in the immediately preceding paragraph, I am persuaded that an uplift is merited under this head.

(iv) The place and circumstances of the cause or in which the work of the solicitor in preparation for, and conduct of, the cause has been carried out

[16] The instructing solicitors are based in Edinburgh whereas all of their clients and the land in question are in the Island of Lewis. In so far as it is relevant, I consider that it was reasonable for the respondents to instruct a firm such as Gillespie Macandrew, rather than attempt to instruct local agents. In saying that I mean no disrespect to local firms but the representation of 60 clients in a case such as this undoubtedly justified the employment of a sizeable and well-resourced firm. I also accept that their distance from the locus made things more difficult for the solicitors: it was not on their doorstep and each site visit and consultation with clients therefore required the time and effort involved in a trip to Stornoway. In that connection, I am told, in supplementary information provided by Gillespie Macandrew, that under the fees allowed to solicitors in ordinary actions in the sheriff court “there is no appropriate head of allowable expenses to properly account for their travel time”. This conflicts with what is said in Pinsent Mason’s note of opposition, where it is asserted that the solicitors will be entitled to charge for all appropriate travel time without the need for an additional fee. Having perused the 1993 Act of Sederunt, it appears that Pinsent Mason are correct, in as much as para 15 says “In addition to the matters set out in the Table of Fees, travel time at a rate of £37 per quarter hour may be claimed on cause shown at the discretion of the Auditor”. Even so, however, I think some uplift is justified under this head to cover all of the extra time and effort which being at a distance from Stornoway involved.

(v) The importance of the cause or the subject matter of it to the client

[17] I am not persuaded that there is merit in this claim. I do not intend to demean the importance of this matter to the 60 respondents represented by Gillespie Macandrew when I say that it was hardly a matter of life and death, nor did it touch on reputation and good name, nor will they face ruin if they lose.

[18] What is relied upon here is the existence of the sec 50B applications. What the litigation is therefore about, from their point of view, is a choice between two different developments, both of which will result in betterment to the shareholders in the common grazings affected. On no scenario do the respondents stand to lose anything they already have. As matters stand, and subject to the outcome of the forthcoming appeals, they are not entitled to pursue the sec 50B schemes and, in those circumstances, Pinsent Masons say it would be wrong to take these into account in deciding on an uplift of fees. Even if these appeals are successful, however, I am not persuaded that an uplift is appropriate under this head.

(vi) The amount or value of money or property involved in the cause

[19] This development is a multi-million pound development but it would be curious to rely on that to justify an uplift in the respondents’ agents’ fees when the respondents’ reason for entering the case is to prevent the development from going ahead. The respondents do not stand to make or lose anything in proportion to the capital value of the development and the amount of money involved is, in a sense which is important for present purposes, irrelevant to them. So no uplift is appropriate under this head.

(vii) The steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing

[20] This was never a case which was going to settle so it is not surprising that the first part of the heading is not being relied on. However, the Court is certainly grateful to Gillespie Macandrew for their involvement to date. That involvement has led to a focusing, although not a limiting, of the matters in dispute and I am satisfied that this focusing led to limiting the duration of the hearing, if not its scope. The preliminary hearing at Stornoway on 14 December last was conducted (by both sides) with a keen sense of relevancy and, consequently, commendable economy of time: a case which was down for four days was completed in less than one. In those circumstances I consider that an uplift under this head is merited.

Decision

[21] I have therefore found the respondents’ agents entitled to an uplift under headings (ii), (iii), (iv) and (vii) of paragraph 5(b). As to the amount of that uplift, I consider that 60% is reasonable, attributable to the various heads in the following proportions: (ii) 20%, (iii) 10%, (iv) 20% and (vii) 10%.