City of Aberdeen District Council v Emslie & Simpson Ltd
| Jurisdiction | Scotland |
| Judgment Date | 24 January 1995 |
| Docket Number | No 30 |
| Date | 24 January 1995 |
| Court | Court of Session (Inner House - First Division) |
First Division
Expenses—Compulsory purchase—Compensation—Lands Tribunal for Scotland making award of expenses to respondents—Award exceeding amounts offered in alternative by appellants—Advance payment of compensation exceeding amount of compensation awarded—Award of compensation falling far short of award claimed—Whether Lands Tribunal erred—Land Compensation (Scotland) Act 1963 (cap 51), sec 11(1)1—Land Compensation (Scotland) Act 1973 (cap 56), sec 482
A local authority compulsorily acquired premises by virtue of a comprehensive development area order from a company. The company referred the amount of their claim for compensation to the Lands Tribunal for Scotland. The tribunal awarded the whole expenses of the reference to the company. The local authority thereafter appealed to the Court of Session and argued that the tribunal had erred in failing to apply or give sufficient weight to ordinary principles governing the award of expenses, namely that expenses normally followed success. The tribunal's award had exceeded the amounts offered in the alternative by the council. The council argued, however, that “success” was a relative term to be defined according to the circumstances of the individual case and it had been successful in the reference in that (a) an advance payment of compensation had been made to the company which had exceeded the amount of compensation ultimately awarded by the tribunal; and (b) that the amount of compensation awarded fell far short of the award claimed and a large number of items of the claim had been excluded.
Held (1) that the expenses of a reference to determine the amount of disputed compensation for compulsory purchase should not necessarily be treated in the same way and according to the same principles as those applied to court litigation; (2) that the advance payment had not been equivalent to an offer which the company were obliged to consider in determining whether or not they should make the reference, for the provision requiring the council to make advance payment had nothing to do with a decision to refer a dispute as to the amount of compensation or with the scope of the reference, and was a provision applicable to cases where the amount of compensation was agreed as well as to those to which there was no agreement so that payment was totally irrelevant to any issue regarding the expenses and the tribunal had been entitled to refuse to regard it as affecting their decision; and (3) that the dispute which required the reference had been the absence of agreement to what the local authority proposed and the company had been successful in the resolution of that dispute, so that the tribunal had been entitled to regard the fact that the award exceeded by a substantial margin the compensation which had been offered as the major consideration bearing on the expenses in the circumstances of the case; and appeal refused.
Opinion reserved as to whether or not the tribunal are entitled to refrain from applying the general rule applying to litigation that expenses ordinarily followed success.
Dicta in McLaren's Tr v Secretary of State for Scotland 1989 SLT 83 at p 85F doubted.
The City Of Aberdeen District Council, being an acquiring authority under the Land Compensation (Scotland) Acts, compulsorily purchased from Emslie & Simpson Ltd, trading as Target Discount, premises at 18 and 20 Loch Street, Aberdeen by virtue of a comprehensive development area order confirmed by the Secretary of State for Scotland. The date of vesting of the order was 15 April 1987. The company thereafter referred the amount of their claim for compensation to the Lands Tribunal for Scotland, claiming £434,158.06. The tribunal determined the value of the interest in the lease of the premises at £75,400.86 on 12 August 1992. That sum was inclusive of a number of items totalling £40,490.86. The council offered the appellants compensation for £43,290 or £55,390 dependent upon whether a notice to quite served on the company under their lease was valid or invalid.
On 4 November 1992 the tribunal awarded the whole expenses of the reference to the company and allowed an increase in the company's solicitors' fees, certified the cause as appropriate for the employment of senior counsel and certified two persons as expert witnesses.
The council thereafter appealed to the Court of Session against the award of expenses.
Cases referred to:
McLaren's Trustee v Secretary of State for Scotland1989 SLT 83
Shepherd v Elliot (1896) 23R 695
Textbook referred to:
Maclaren, Expenses in the Supreme and Sheriff Courts, pp 21–23.
The cause called before the First Division, comprising the Lord President (Hope), Lord Morison and Lord Weir for a hearing.
At advising, on 24 January 1995, the leading opinion was delivered by Lord Morison.
LORD MORISON—This is an appeal by an acquiring authority against a decision of the Lands Tribunal dated 4 November 1992 in which the expenses of a reference to the Tribunal were awarded to the claimants against the authority. The claimants in the reference were Emslie & Simpson Ltd, who traded under the name of Target Discount in premises leased from the owners at 18 and 20 Loch Street, Aberdeen. These premises were acquired by the appellants by virtue of a Comprehensive Development Area Order which was confirmed by the Secretary of State. The date of vesting was 15 April 1987, on which date the appellants entered into possession of the subjects. The claimants referred the amount of their claim for compensation to the Tribunal, claiming £434,158.06. After lengthy procedure the Tribunal on 12 August 1992 determined the value of the claimants' leasehold interest at £75,400.86. That sum included a number of items which were agreed as totalling £40,490.86 in value. In their decision the Tribunal noted that the amount of compensation which had been offered by the appellants was either £43,290 or £55,390 depending upon whether a notice to quit served on the claimants under their lease was valid or invalid. After a further hearing on the question of expenses, the claimants were on 4 November 1992 awarded the whole expenses of the reference, and the Tribunal also allowed an increase in the claimants' solicitors' fees, certified the case as appropriate for the employment of senior counsel and certified two persons as expert witnesses. The appellants have appealed to this court against...
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