Chapter 7: Administrative matters
Arrangements when the legal members of the Land Court and Lands Tribunal both recuse themselves
69. Occasionally, the Chair and the Deputy Chair of the Land Court have both had to recuse themselves from a case at the same time. This happened in 2015 and resulted in a sheriff principal being appointed to hear a case and twice in 2019; firstly, when the other legal member of the Lands Tribunal was appointed to hear a case, and secondly when a sheriff principal was again appointed to a case. In all three instances, the appointment was on a temporary basis for the one specific legal case in question and was accomplished by means of an “Instrument of Appointment” granted in terms of The Scottish Land Court Act 1993.
70. If the merger between the Land Court and the Lands Tribunal does not take place, or until a merger does take place, it has been suggested that it would be administratively expedient if there was a more permanent solution as to who should deputise for the Chair and Deputy Chair of the Land Court if a similar situation should arise in the future. In many ways, the simplest option is to appoint the other legal member of the Lands Tribunal to hear the case.
71. Should that option be chosen, it would make sense to have a reciprocal arrangement between the two bodies whereby the Deputy Chair of the Land Court stood in for the President and the other legal member of the Lands Tribunal should both have to recuse themselves from a case. However, such a reciprocal arrangement would not always be appropriate and, in such cases, the present arrangements of temporary appointment would apply. In one of the situations in 2019, it would have been inappropriate for the other legal member of the Lands Tribunal to be appointed to a case in the Land Court as he would have had to recuse himself for the same reason as the Chair and Deputy Chair.
72. The Scottish Government would very much welcome any views on a proposal to use the deputies from the other forum when the principal legal practitioners have had to recuse themselves (see question 4 of this consultation).
The necessity for a Gaelic speaker
73. There has been a statutory requirement for the Land Court to have a Gaelic speaking member ever since the Court’s inception in 1912. That requirement is presently fulfilled in the person of the present Chair. He will retire at some point between October 2020 and December 2022. Unless there is another vacancy on the court at that time, a Gaelic speaking Chair would require to be appointed. The likelihood is that it would be impossible to find such a replacement, given the other qualifications for the role of Chair in terms of section 1(3) of the Scottish Land Court Act 1993.
74. Although the question is likely to arise in that acute form on the present Chair’s retirement, there is a more general factor which should be borne in mind. That is how the requirement for a Gaelic speaker reduces the pool of possible appointees and excludes many people from a crofting or farming background who might otherwise be eminently suitable for appointment. The question arises whether any continuing need for a Gaelic speaker outweighs these restrictive effects of the present requirement. Whereas in the court’s early days and for most of the 20th century there were many court users who were very much more comfortable speaking Gaelic than English, that is less so today and, whilst it can be an advantage to have a member of the Court who speaks Gaelic, the situations in which that is so are relatively rare. (This question is not to be confused with parties’ rights to use Gaelic in the court’s proceedings, which is enshrined in the court’s rules.)
75. We are taking the opportunity provided by this consultation to gauge opinion on whether the Land Court requires to have a Gaelic-speaker. There is the option that section 1(5) be repealed by way of primary legislation. The Scottish Government would welcome views on this further issue (see question 5).
The Lands Tribunal’s power to award expenses under section 103 of the Title Conditions (Scotland) Act 2003
76. Paragraph 42 above notes there is “little expense to litigants so far as Lands Tribunal and Land Court fees are concerned”. However, as noted in paragraph 29, the power which makes the Tribunal akin to a court is the power to award expenses.
77. Part 9 of the Title Conditions (Scotland) Act 2003 provides for powers of the Lands Tribunal in respect of title conditions. In 2013, the Scottish Parliament Justice Committee published a report entitled “An inquiry into the effectiveness of the Title Conditions (Scotland) Act 2003”. The report raised concerns about the principle that “expenses follow success”. Specifically, it questioned whether provisions on expenses in title conditions cases should be changed. Under section 103 of the Title Conditions (Scotland) Act 2003, in relation to title conditions cases, the Lands Tribunal may “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”.
78. The Justice Committee considered that the possibility of being found liable in expenses may deter homeowners from using the Lands Tribunal. The Lands Tribunal provided written evidence on this issue in which it stated:
“We note that in the Explanatory Notes which accompanied the 2003 Act it was said that this provision directed the Tribunal to have ‘some regard’ to the principle of expenses following success. However, it is not easy to distinguish between ‘regard’ and ‘some regard’ and the effect of the provision is that the Tribunal must award expenses to the successful party unless there are specific reasons not to do so. In other words, although it does appear to give a broad discretion to the Tribunal, this simply reflects the wide discretion all courts have in this respect. Courts are said to have a wide discretion in relation to expenses but must apply the rule of ‘expenses following success’ unless there are sound reasons for modification.
79. The Lands Tribunal evidence went on to suggest alternative approaches in the treatment of expenses in this context:
“Alternative approaches might be to substitute a broad test of reasonableness instead of express reference to success. Another might be to have a cap on expenses. This might be a statutory figure or statutory authority to the tribunal to fix a figure at the outset either at its own hand or on request by either party. This would get over the problem of an objector saving expense by acting on his own behalf and then being faced with a claim for the expense of solicitors and counsel. If parties disputing over a proposed conservatory knew that the recoverable expenses were fixed at, say, £1000, they could decide whether the issue was worth it. If they thought it was, they could decide to spend more on their own behalf, if they wished, knowing they would not get it back but also knowing the risk of payment to the other side was limited. If the issue was a major development, the tribunal could fix a much larger figure.
“It has been suggested that another approach could be to authorise the Tribunal to make their decision on the basis of written material and a site visit. This is often done by agreement and appears to work satisfactorily. It would be much cheaper in most cases although it must be recognised that preparation of full written submissions does cost money. It also reflects the importance of the site visit. Statutory authority to compel parties to accept this approach where the Tribunal considered it appropriate would solve a lot of problems but, although we profess no expertise in this area, we recognise that Art 6 of ECHR appears to require an open hearing of some sort.”
80. The Scottish Government accepted that there were concerns about access to justice in relation to “expenses following success” and gave a commitment to look at the issue. The present consultation gives the opportunity of seeking stakeholder views and question 6 invites consultees’ responses.
The Land Court’s power to award expenses in appeals under the Rural Payments (Appeals) (Scotland) Regulations 2015
81. Regulation 10 of the foresaid Regulations provides as follows:
”Without prejudice to paragraph 15 of Schedule 1 to the Scottish Land Court Act 1993 or rules 88 to 95 (expenses) of the Rules of the Scottish Land Court Order 2014, the Land Court may in considering an award of expenses against any party to an appeal have regard to the conduct of that party during the review process as a whole.”
82. This provision, therefore, applies the Court’s general expenses-awarding powers to Rural Payment appeals and goes on to make clear that when finding a party liable in expenses the Court may have regard to the conduct of that party during the earlier (administrative rather than judicial) review process. This opens up the possibility of awarding expenses on what is called an “agent and client, client paying” basis to mark disapproval with the way a case has been conducted.
83. The focus of this consultation, however, is on whether the power to award expenses against an unsuccessful appellant operates as a barrier to justice. The fact that the Scottish Government is able to employ the best representation available and pay for it from public funds leads, not infrequently, to an inequality of arms, particularly when appellants are representing themselves. But, aside from the inequality of arms point, there is a question as to whether recipients of agricultural subsidies who find themselves penalised for some alleged infringement of the relevant agricultural or environmental subsidy rules are discouraged from taking what might well be good cases to the Court for fear of being found liable for the very substantial costs which the employment of high quality legal representation invariably entails.
84. If the present provisions do indeed act as a barrier to justice, there is more than one way of dealing with the problem. An obvious way would be the abolition of the power to award expenses in such cases but that might be thought to be going too far since it would mean that appellants would never be found liable in expenses no matter how unmeritorious their appeals, or the conduct of their appeals. Alternatives would include the introduction of a statutory cap on awards of expenses – so that appellants would know it advance what their maximum exposure to expenses was – or a discretion to the Court to limit awards in appropriate cases or to depart from the principle that expenses should follow success where that seemed to accord with the interests of justice. There may also be other possibilities.
85. The Scottish Government would therefore welcome views as to (a) the extent to which the risk of a substantial adverse award of expenses operates as a barrier to justice, and (b), if it does, what ought to be done about it (see question 7).