Scottish Land Court and the Lands Tribunal for Scotland: consultation analysis

Question 7

Do you think that the present power of the Land Court to award expenses against unsuccessful appellants in rural payment appeals operates as a barrier to justice?

An overwhelming majority (83.9%) considered that the present land Court power to award expenses against unsuccessful applicants acts as a barrier to justice.

Those who consider that the present power of the Land Court to award expenses against unsuccessful appellants in rural payment appeals operates as a barrier to justice

Nine of the respondents including Scottish Land & Estates, the Law Society, the Scottish Tenant Farmers Association, the Agricultural Law Association, and the Scottish Crofting Association, specifically stated that the present power of the Land Court to award expenses against unsuccessful appellants was a barrier to justice.

The Scottish Crofting Association put things succinctly:

"Someone appealing against the Scottish Government is completely out-matched in regards to the representation the SG can afford – at public expense. It therefore deters appellants from coming forward to appeal against a SG decision due to the fear of incurring the SG expenses, which could be ruinous."

The Scottish Tenant Farmers Association were very much of the same point of view noting that "the present power of the Land Court to award expenses against unsuccessful appellants in rural payment appeals operates as a barrier to justice. These hearings should be either conducted on the basis of each side paying its own expenses or capped at a reasonable level which should deter vexatious appeals but should not act as a deterrent for genuine appellants".

The Law Society stated, and Scottish Land & Estates concurred:

"Before a rural payment appeal is made to the Court, appellants will have been unsuccessful at Rural Payments and Inspections Division internal review. It is common for appellants to have incurred professional costs at this stage, for example, for agricultural consultants. In practice, it can be a fairly significant step-up for an appellant to take a case to the Land Court where they risk having to meet the expenses of their own legal advice if taken, and risk of having to meet the Scottish Government's costs, which generally includes instruction of counsel. In terms of securing access to justice, the ability to appeal a decision must not be on such a basis that people are deterred from appealing."

The Society went on to say that it did not consider it appropriate for the power to award expenses to be abolished as this risked frivolous appeals. Instead, it suggested a cap on expenses would be appropriate which could be "taken forward by way of a protective expenses order model". It also suggested an alternative possibility where each party would bear its own expenses.

The Scottish Land Commission was also aware of the need to discourage frivolous cases, but nevertheless was "quite convinced that the fear of having costs awarded is a barrier to justice".

The idea of a cap on expenses as suggested in the previous paragraphs was also proposed by others. One respondent stated:

"My suggestion is that expenses are awarded only where the appellant has acted unreasonably in the conduct of the appeal. The Court should also be able to place a cap on the amount payable on a discretionary case by case basis subject to a prescribed maximum."

The Scottish Crofting Association agreed saying that a statutory cap on awards of expenses would allow appellants to know in advance their maximum exposure to expenses.

James McPherson noted that protective expenses orders already exist in environmental cases. He thought that it should be possible to apply to the court for a similar sort of order.

Three of the respondents suggested that there should be a better sifting of cases to avoid expensive appeals. J Campbell Gemmell was one of these:

"As above, it would be worthwhile analysing these cases to see what better triage, preparation and early attempts to reach agreement or mediated resolution so as to avoid expensive appeals where an appellant in particular could face serious costs implications."

Stirling Council suggested that "a sifting process could be introduced to identify the appeals with little or no reasonable prospect of success and a party who pursue an appeal identified as having little or no reasonable prospects of success and fails should be potentially liable for the other party's expenses".

Lord McGhie went a step further stating that there is "much to be said for the view that challenges to routine administrative decisions by Government bodies should be free of charge. It is my understanding that such a policy applies in relation to most decisions which are open to challenge before tribunals. There is no strong reason why it should not apply to Land Court hearings".

Again Professor Colin Reid wished to link the idea of costly appeals to the UK's international obligations under the Aarhus Convention to provide access to justice that is "not prohibitively expensive". He went on to say that "[a]lthough changes have been made to meet this obligation in core areas of judicial and statutory review, there may well be more peripheral forms of proceedings where the rules have not yet caught up".

Those who do not consider that the present power of the Land Court to award expenses against unsuccessful appellants in rural payment appeals operates as a barrier to justice

There were only three comments from those who opposed the idea that the present power of the Land Court to award expenses against unsuccessful appellants in rural payment appeals operates as a barrier to justice. Robert Robertson thought that it was probable that the power was not a barrier but, "it partly depends how strong the 'Justice Complex' is as a motivator".

Another thought that the power "is a function that is well understood by all parties and should stand". That person did suggest that there might be a ceiling could be considered on a case by case basis.

Finally Colin Grant was willing to trust the Land Court saying:

"Really boils down to whether trust in the Land Court is justified, which, on balance, I think it should be."

Other responses

The Faculty and Inksters Solicitors did not indicate whether they considered that the power to award expenses was a barrier to justice. They both suggested expenses-capping as a possible solution to the issue. Inksters also suggested that qualified one way costs shifting or QOCS^[4] may be an alternative remedy.