A recent Lands Tribunal for Scotland decision in a conjoined tenants' Right to Buy case has clarified the standard that the Tribunal expects from pleaders, together with its likely approach to questions of fair notice going forward.
In Hopwood v West Lothian Council and Parlett v West Lothian Council, the Tribunal was asked to determine whether the applicants were Secure Tenants under the Housing (Scotland) Act 2001, and thus whether they enjoyed the Right to Buy in terms of section 61 of that Act.
The applicants were the tenants of each half of semi-detached properties within Beecraigs Country Park, Linlithgow. The Council's position was that the properties were within the curtilage of other non-housing buildings within the Park, and therefore fell within the exclusion within paragraph 9 of Schedule 1 to the 2001 Act.
Ultimately, following evidence, the Tribunal accepted that the properties were not within the curtilage of any other building within the Park. However, what is of interest is how the Tribunal treated an objection to the relevancy of the Council's cases.
The issue taken was straight-forward from a general court-pleadings perspective:- the applicants were entitled to fair notice of the claim being presented (c.f. Lord Normand in Esso Petroleum Co Ltd v Southport Corporation  AC 218 at page 238; Lord President Clyde in Morrison’s Associated Companies Ltd v James Rome & Sons Ltd 1964 SC 160 at page 182; MacPhail Sheriff Court Practice, 3rd ed at para 9.30). In order to succeed, the Council had to prove that the properties were part of, or within, the curtilage of a building which is held by the Council for purposes other than the provision of housing accommodation and mainly consists of accommodation other than housing accommodation. Fair notice in this context required the Council to specify which building it was founding its case on, which it did not. During the course of the hearing, the Council clarified its position by offering the Tribunal three options for the "building", but the applicants' position was that such clarification ought to be found in the pleadings, not the submissions.
In these cases, the Tribunal stated that it was "disinclined to take such a technical approach". However, in dealing with the point, the Tribunal set out clearly what it expects of those pleading cases before it. At paragraphs 36 and 37, the Tribunal stated:-
"36. Even with that clarification, however, the respondents’ position remains unsatisfactorily vague in that the Tribunal is offered three possibilities from which, it would appear, it is being asked to take its pick: (a) that the subjects are within the curtilage of both the Animal Welfare Shed and the viewing sheds; (b) that it is within the curtilage only of the viewing sheds; and (c) that it within the curtilage of any one of the three viewing sheds.
37. This is a highly unsatisfactory state of affairs. Respondents pleading para 9 of Schedule 1 should aver clearly from the outset which building or combination of buildings is being relied on and why; the Tribunal should not be left to work out for itself which of a range of possibilities might apply. On a more technical approach we would be justified in sustaining Mr Upton’s objection to the admissibility of the evidence to do with curtilage and, consequently, his plea to the relevancy. We prefer, however, to deal with matters on their merits so we shall repel the objection and decide these cases on the whole evidence."
The Tribunal's approach to relevancy highlights the flexibility afforded to parties appearing before it. The Tribunal will prefer to hear all of the evidence available and determine the case based on that.
However, that does not detract from the fact that the Tribunal is a judicial body, and those pleading cases before it ought to approach the task of pleading with the same level of care and detail that one would expect in the Sheriff Court or Court of Session. The Tribunal also did not close the door on rejecting cases based on irrelevant pleadings in the future, and so those adopting a lazy approach to pleadings ought to beware.
You can view the full decision here - http://www.lands-tribunal-scotland.org.uk/decisions/LTS.TR.2016.06and07.html
Get in touch
If you would like to discuss this, or any other related matter, please get in touch with a member of our team on 0330 159 5555 or speak to Andrew directly.