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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Nimmo Smith
Lord Reed
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[2008] CSIH 58
XA108/08
OPINION OF THE COURT
delivered by LORD OSBORNE
in the Appeal
under Section 11(7)(b)
of the Tribunals and Inquiries Act 1992
by
SHELTERED HOUSING
MANAGEMENT LIMITED
Appellants;
against
A decision of the Lands
Tribunal for Scotland, communicated to the
Appellants on 9 June 2008
(Margaret Jack,
Respondent)
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Appellants: Clark, Q.C.; Balfour + Manson, LLP
Respondent: J. J. Mitchell,
Q.C.; Paull & Williamsons
11 November 2008
The background
circumstances
[1] This appeal under section 11(7)(b)
of the Tribunals and Inquiries Act 1992, "the 1992 Act", bears to be an appeal
against a decision of the Lands Tribunal for Scotland, communicated to the appellants on 9 June
2008. It arises out of proceedings before the Lands
Tribunal initiated by an application under sections 34(3) and 90(1)(c) of
the Title Conditions (Scotland) Act 2003, "the 2003 Act", to preserve unvaried
the title conditions in a 1986 Deed of Conditions in relation to a
sheltered housing development. The application was made by the appellants,
who were the managers of that development.
They were the superiors. They are
the owners of residual property, including the warden's flat, warden's office,
guest bedrooms and other facilities in the building. A two-thirds majority of the flat proprietors
have, however, exercised their right under section 28 of the 2003 Act
to appoint different managers and have also executed a new deed replacing the
Deed of Conditions referred to. This proposed
deed sets out a new set of conditions bringing the title position up-to-date
and changing the basis of arrangements between the managers and the flat
owners. Generally, the appellants did
not object to these parts of the proposed deed.
However, they did object to new provisions restricting the use of the
residential property owned by them to use ancillary to the sheltered
flats. That property was previously
unburdened. They also complained of the
level fixed in the proposed deed of a "rental" payment by the flat owners to
them in respect of use of their property.
The appellants submitted that certain of the burdens sought to be
imposed were not valid real burdens or community burdens, making the deed and
the procedure to impose it incompetent.
They also invoked the tests set out in section 98(b) of the 2003
Act for preserving the existing deed.
The respondent was the proposer of the new deed, being a representative
flat owner who was also a resident and the chairperson of the residents'
committee.
[2] After a
hearing of evidence on 21 - 23 September and 2 October 2006, the
Lands Tribunal issued what bore to be an "Opinion", on 5 January 2007, in
which the Tribunal stated that it had "decided" that the proposed deed did
create valid real burdens which were community burdens and was competent; and that the appellants and applicants had
failed to establish either of the conditions set out in section 98(b) of
the 2003 Act. The application for
preservation accordingly failed. At the
conclusion of this Opinion the Lands Tribunal stated:
"We accordingly refuse the
application and shall make the appropriate order under section 90(1)
varying the community burdens accordingly."
This Opinion bore a certificate signed by the Clerk to the
Lands Tribunal in the following terms:
"Certified a true copy of the statement
of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 5 January
2007."
[3] Thereafter,
the Lands Tribunal considered the issue of compensation arising out of the
decision just referred to. Against the
background of the decision by the Lands Tribunal to refuse the application for
preservation, which it did in its Opinion issued on 5 January 2007, the
Tribunal recognised that the applicants were entitled to apply for compensation
in broadly the same way, and subject to the same test, as owners of benefited
property who had opposed discharge or variation of a title condition. The applicants made such a claim on the basis
that they would suffer substantial loss or disadvantage in consequence of the
variation which the Tribunal, having refused their application to preserve,
would make. A hearing on the claim for
compensation took place on 14 August 2007.
The Tribunal accepted that the applicants would suffer some loss and
decided that it was just to award compensation of £9,178, the lowest of the
alternatives claimed. That decision was
set out in what bore to be an "Opinion" issued to the parties on 11 October
2007. In it the Lands Tribunal "decided" that it
would direct the respondent to pay the applicants compensation in the sum
mentioned. The position was that the
respondent did not require to consent, in terms of section 90(9) of the
2003 Act, and could alternatively choose not to proceed with the proposed
deed. At the request of the solicitor
acting for the respondent, time was allowed to the respondent to consider that
matter. In the Opinion issued on 11 October
2007 the
Lands Tribunal noted that there was agreement by both parties with the
Tribunal's draft Order implementing its decision on the merits. Any motions in relation to expenses were to
be addressed in written submissions.
That Opinion bore a certificate signed by the Clerk to the Lands
Tribunal in the following terms:
"Certified a true copy of the Opinion
of the Lands Tribunal for Scotland intimated to parties on 11 October
2007."
[4] In what bears
to be a "Note" issued to parties on 9 June 2008, the Lands Tribunal made certain
decisions in connection with the expenses of the proceedings, on the basis of
written submissions. It is unnecessary
to refer to the details of those decisions, which are set out in
paragraph (3) of the Note on page 73 of the Appendix to the
appeal. Once again, the Note bore a
certificate signed by the Clerk to the Tribunal in the following terms:
"Certified a true copy of the
decision of the Lands Tribunal for Scotland intimated to parties on 9 June
2008."
[5] Also on 9 June
2008 the
Lands Tribunal issued what bears to be an "Order" signed by members of the
Tribunal. That document, after narrating
in detail the events which we have already described, stated that the Tribunal:
"DO HEREBY (First) REFUSE the
application and accordingly VARY the said community burdens in the Deed of
Conditions dated and recorded aforesaid by deleting them in their entirety and
substitute in lieu thereof the provisions of clauses 1 to 11 of the proposed
deed, which are in the following terms:
...
(Here the Tribunal narrated the clauses concerned)
...
(Second) DIRECT that the respondent pays to the Applicants the sum of ...
(£9,178) by way of compensation in terms of section 90(7)(a) of the
Act; and FURTHER DIRECT that unless the
said sum is so paid within the period of six months from the date hereof, this
Order shall be void on the expiry of the said period of six months; and (Third) (i) FIND the Applicant liable to
the Respondent in her expenses of the application (under exception of the claim
for compensation), with a 40% increase in the fees authorised by the Sheriff
Court Table of Fees; (ii) FIND the
Respondent liable to the Applicants in their expenses referable to the claim for
compensation, from the date of that submission onwards; all of which expenses shall be on the Sheriff
Court scale and which failing agreement, shall be taxed by the Auditor of
Aberdeen Sheriff Court; (iii) sanction
the employment of junior counsel; and
(iv) CERTIFY the employment of Mr G MacDonald, FRICS and Mr J Begg,
MRICS as skilled witnesses."
There was appended to the foregoing Order a schedule, the
contents of which are, for present purposes, immaterial, which bore a
certificate in the following terms:
"This is the schedule referred to in
the foregoing Order of the Lands Tribunal dated 9 June
2008".
That certificate was signed by members of the Tribunal.
[6] In their
appeal to this court, having narrated that the appeal under
section 11(7)(b) of the 1992 Act was against "a decision of the Lands
Tribunal for Scotland, communicated to the appellants on 9 June 2008", the
appellants go on to set forth the grounds of the appeal. In paragraphs 1 to 3 inclusive of the
grounds, the appellants set forth several criticisms of the Opinion of the Lands
Tribunal, dated 5 January 2007, alleging errors in law. In paragraph 4 of the grounds of appeal,
the appellants allege that the Tribunal erred in certain respects in its
Opinion in relation to compensation, dated 11 October 2007.
[7] In her Answers
to the appeal, the respondent responds to the grounds of appeal in this
way. In relation to the criticisms of
the Opinion of the Tribunal, dated 5 January 2007, she avers that the Tribunal gave
its decision on the matters with which that Opinion dealt in terms of
section 11 of the 1992 Act and Rule 27 of the Lands Tribunal for
Scotland Rules 2003, in writing and with a statement of reasons. She avers that that decision was intimated to
the parties on or about 5 January 2007.
She states that it was appealable, in terms of Rule of Court 42.20,
within 42 days thereafter. She
asserts that accordingly it is "now too late for any appeal such as is stated,
and this ground of appeal should be refused."
Identical responses are to be found in paragraphs 2 and 3 of the
Answers. In relation to the criticisms
contained in paragraph 4 of the grounds of appeal, the respondent refers
to the "Opinion dated 11 October 2007".
She avers that, in issuing that Opinion,
"the Tribunal gave its decision on
these matters in terms of section 11 of the Tribunal and Inquiries Act
1992 and Rule 27 of the Lands Tribunal for Scotland Rules 2003, in writing
and with a statement of reasons. Its
decision was intimated to parties on or about that date. It was appealable in terms of Rule of
Court 41.20, within 42 days thereafter. It is accordingly now too late for any appeal
such as is stated, and this ground of appeal should be refused."
It is to be noted that the present appeal, which was lodged
on 18 July 2008 was brought within 42 days of the issue of the Order of
the Tribunal on 9 June 2008.
On 24 September there came before this court a motion on behalf of
the appellants to appoint the cause to the Summar Roll for a hearing. That motion was opposed by the respondent,
upon the basis that the appeal was out of time.
On that date all issues relating to whether the appeal was timeous or
not were argued.
Submissions of the
respondent
[8] Having explained the factual
circumstances which have given rise to this appeal, senior counsel for the
respondents drew the attention of the court to the applicable Rules of
Court. They were to be found in
Part III of Chapter 41.
Historically appeal from the Lands Tribunal for Scotland might be taken by way of Stated
Case, although an appeal under Rule of Court 41.19 was now apt. That was the nature of the present
appeal. Apart from the issue of time,
there was no dubiety regarding its competency.
Rule 41.20, subparagraph (1) provided a time limit of
42 days. No time limit was
prescribed by the enactment under which the appeal was brought. Accordingly Rule 41.20(1)(b) was
applicable. It provided that, an appeal
had to be brought within 42 days after -
"(i) the date on which the decision appealed
against was intimated to the appellant;
...".
Senior counsel accepted that the provisions of Rule 41.4
could have applied, but that course had not been selected. Thus the starting point for the running of
the 42 day period, in the present case was the date on which the decision
appealed against had been intimated to the appellant.
[9] Senior
counsel went on to draw our attention to the provisions of the 1992 Act. Under section 10 and Schedule 1, it
was necessary for the Lands Tribunal for Scotland to state reasons for its
decisions. An appeal was open on a point
of law against such a decision in terms of section 11(1) of that Act. Section 11(10) defined "decision" for
the purposes of the section as including "any direction or order". Section 16(1) of the 1992 Act, the
interpretation section, provided that "except where the context otherwise
requires - 'decision' ... in relation to a Tribunal, shall be construed subject
to section 14." Section 14(1)
provided for the exclusion of decisions "in the exercise of executive functions". Reverting to section 11(10) of the 1992
Act, it was to be seen that the definition of "decision" was very wide; it was not limited to what might, in another
context, be described as a final interlocutor.
The key phrase in the context was "a decision of the Tribunal", where it
was found in section 11(1). The
submission being made in opposition to the appellants' motion was quite simply
that while the appellants might be dissatisfied in point of law with the
decisions of the Tribunal, they had missed the time limits applicable for
appeal.
[10] Senior counsel
drew our attention to the provisions of the Lands Tribunal for Scotland Rules
2003 (S.S.I. 2203 No.452). It was
necessary to note Rule 27. It
provided as follows:
"(1) The
decision of the Tribunal in any proceedings shall be given in writing and shall
include a statement of the Tribunal's reasons for its decision.
...
(3) The
Tribunal shall send a copy of the decision to all parties to the proceedings.
(4) An
accidental or arithmetical error in any decision of the Tribunal may be
corrected by the Tribunal if, before making the correction, it has given notice
of its intention to make it to all those who were parties to the
proceedings.
...".
Rule 28 provided for decision-making by the Tribunal on
the subject of expenses.
[11] Having dealt
with the statutory background, senior counsel turned next to examine what the
Tribunal had done in the present case.
It was plain that the Tribunal had dealt with the matters before it in
several stages. The first of the
decisions of the Tribunal was that issued on 5 January
2007, to be
found at page 53 of the Appendix. A
summary of it was to be found on page 4.
Looking at the provisions of section 90 of the 2003 Act, it was
evident that the Tribunal, in its decision of 5 January 2007, had performed its functions under
subsection (1). That was consistent
with the order of the Tribunal dated 17 January 2007, 7/5 of the respondent's inventory
of productions, in which the Tribunal allowed the applicants to lodge an
application for compensation. The
handling of such an application would have involved the Tribunal in the
exercise of its powers under section 90(6) of the 2003 Act, a separate
matter. That was, of course, done in the
Opinion issued on 11 October 2007.
Finally, the Tribunal made decisions in relation to expenses on 9 June
2008. At the same time it made the Order of the
same date. In addition, the Tribunal had
issued a note on 4 July 2007 dealing with expenses, 7/7 of the
respondent's inventory of productions.
[12] Turning to
deal with the way in which appeals had been brought against decisions of the
Lands Tribunal for Scotland, senior counsel pointed out that
appeals were regularly brought against decisions which were not final
orders. In that connection he drew attention
to Keddie v Woodside Building Services Limited (30 September
1998)
(unreported). That was an appeal against
a decision which was not a final order.
No question had been raised about its competence. In M.R.S.
Hamilton Limited v Keeper of the
Registers of Scotland 2000 S.C. 271, quite plainly there had been an appeal
against what might be called an interlocutory decision allowing a proof before
answer, as appeared from page 274E.
No issue had been raised regarding its competence. In Queens
Cross Housing Association v McAllister
2003 S.C. 514, this court had entertained an appeal on what might be
categorised as a preliminary matter, subsequently remitting the case to the
Lands Tribunal to proceed as accords. In
all of these circumstances it was submitted that the appellants' challenges to
the decisions of 5 January 2007 and 11 October
2007 should
have been brought as appeals within 42 days of the issue of those
decisions to the parties. There were
certain problems associated with the legislation and Rules of the Lands
Tribunal as they stood. In addition, the
practice of the Tribunal appeared to be inconsistent with that material. The Order of 9 June 2008 used the present tense and appeared
to embody decision-making. However, no
reasons were given in that document, which therefore did not comply with
section 10(1) of the 1992 Act; nor
did it comply with Rule 27(1) of the Lands Tribunal for Scotland Rules
2003. It appeared that the Order of 9 June
2008 might
simply be seen as a "performative order".
That Order might be seen as "the exercise of executive functions" within
the meaning of section 14(1) of the 1992 Act, in which case an appeal
under section 11(1) might be excluded.
Submissions of the
appellants
[13] Counsel for the appellants moved the court
to send the case to the Summar Roll for hearing. What was important was the nature of the
Order of the Tribunal issued on 9 June 2008.
If that was a "decision" within the meaning of Rule of
Court 41.20(1)(b)(i), then the appeal had been brought timeously, having
been lodged on 18 July 2008, within the prescribed 42 day
period after the date of issue. It had
to be pointed out that the Order had been issued with a covering letter, 6/4 of
the appellants' inventory of productions, which described the Order as
containing "formal determination of all matters". That letter drew attention to the rights of
appeal conferred by section 11 of the 1992 Act and pointed out that an
appeal on a point of law against a Tribunal decision could be presented to the Court
of Session no later than 42 days after the intimation of the
decision. It was recognised, however,
that the characterisation of the Order in the letter was not necessarily
authoritative. In this connection that
letter could be compared with the terms of the letter, 6/2 of the same
inventory, which was equivocal about the possibility of an appeal being taken
against the decision of 5 January 2007.
It was also relevant to note the content of the Tribunal's website,
printed in 6/5 of the appellants' inventory.
It referred to a written order as formally setting out the Tribunal's
decision on the case. The particular
jurisdiction which the Tribunal was exercising in this case required an
all-embracing order to be pronounced.
The situation was further complicated by section 10(6) of the 1992
Act, which provided that a statement of the reasons for a decision was to be
taken to form part of the decision. The
premise of that subsection appeared to be that the reasons were not in fact
part of the decision, but were to be deemed to be so. The Tribunal might therefore be able to give
reasons for a decision which was to be expressed only in the future.
[14] Counsel
submitted that there could not have been a competent appeal within 42 days
after the event which occurred on 5 January 2007, although the document issued by the
Tribunal on that date spoke of the Tribunal having "decided" certain matters
and accordingly refusing the application.
The respondent had to say that the Order of 9 June
2008 could
not be appealed; that flew in the face
of the language of section 11(10) of the 1992 Act which provided that a
"decision" included "any ... order". The
governing statute was the 1992 Act which made provision for appeals in
section 11. The Order of 9 June
2008 had to
be deemed to incorporate the reasons given in the earlier Opinions by virtue of
section 10(6) of the Act.
[15] Counsel turned
next to examine some relevant authorities relating to the concept of a "decision". He contended that these showed that the word
should be given the natural and obvious meaning of a judicial order. The question was what was the ordinary or
natural meaning of the word decision, as used in the 1992 Act. So far as counsel could discover, there was
no case law directly bearing on the issue of the meaning of the word in
section 11 of the 1992 Act, or indeed in the equivalent section of its
predecessor.
[16] The first
relevant authority was Commonwealth of
Australia v The Bank of New South
Wales [1950] AC 235. The statutory
language which was interpreted appeared at page 238 and involved the use
of the words "a decision of the High Court".
At pages 294 to 295 it was said that "decision" meant the formal
expression of an adjudication in a suit not simply the pronouncement of an
opinion on a question of law. In Khan v Chand (1902) L.R. 30 I.A. 35, what was under interpretation was the
expression "decision of the court" in section 596 of the Code of Civil
Procedure. The decision of the Privy
Council was that the expression "decision of the court" had the same meaning as
that attributed to the word "decree".
Reference was made in particular to the observations at
page 39.
[17] Counsel went
on to rely upon Rohatgi v Health Care Complaints Commission (the
Supreme Court of New South Wales, Court of Appeal) (26 July 1996; unreported.)
At page 5 the court expressed the view that the natural meaning of
"decision" was the order of the court or tribunal. Counsel next relied upon Regina v Ceredigion County
Council [2005] 1 WLR 3626, particularly paragraphs 38 and 47, in
which it was held that the word "decision" could not be construed as meaning
simply grounds or reasons. That view was
upheld in the House of Lords in [2007] 1 WLR 1400 at paragraph 18.
[18] Finally
counsel drew our attention to Regina v Lands Tribunal, ex parte City of London Corporation [1982] 1 W.L.R. 258. It involved the interpretation of
sections (3) and (4) of the Lands Tribunal Act 1949, which provided for
the stating of a case required by any person aggrieved by the "decision as
being erroneous in point of law". The
court decided that the word "decision" in that section applied only to a final
decision of the Lands Tribunal.
Reference was made particularly to pages 260, 262 and 263. That decision went further than counsel said
that he had to go in this case.
[19] Summarising
the authorities upon which he had relied, which were of high standing, counsel
said that they supported the view that the Order of 9 June
2008 was a
"decision", against which an appeal had been timeously brought. If the document issued by the Tribunal on 5 January
2007 was a
"decision", there could have been an appeal then, but it was not necessary for
the appellant to argue that. In any
event, that document bore to be an "Opinion".
It could be said that the certification which appeared at the end of
that document was odd and enigmatic, suggesting, as it did, that significance
lay in the date of 5 January 2007 on which the document had been
issued to the parties. Properly construed,
that Opinion contained a statement by the Tribunal as to what it would do in
the order which it would pronounce in due course, as appeared from page 53
of the Appendix. There was no doubt that
there were infelicities in the documentation issued by the Lands Tribunal which
conduced to a lack of clarity in the situation regarding what could and what
could not be appealed. A factor of
importance was the fact that, in order to determine the questions which arose
on the merits of the dispute between the parties, the Lands Tribunal had to
issue an order, as appeared from section 90(1) of the 2003 Act. The central issue in the case was whether a
proposed new deed of conditions, which the appellants said would expropriate
them from the property, should be given effect.
The appellants had sought preservation of the existing deed. The Tribunal had accordingly to decide which
deed was to regulate the community. The
terms of section 90(6) of the 2003 Act, which also referred to an "order",
confirmed the position. Until an "order"
was made, from the point of view of the appellants, nothing had been changed as
regards legal rights. Only on 9 June
2008 was the
issue between the parties determined by the pronouncement of an "order".
[20] Making some
further points, counsel drew attention to George
Wimpey East Scotland Limited v Fleming
2006 S.L.T. (Lands Tribunal) 2, at page 15, where the Lands Tribunal said
that it could not formally make the variation order in question there until it
had disposed of the claim for compensation.
The Tribunal were considering the same compensation provisions in that
case as were involved in the present one.
Thus, the application for compensation had to follow an indication of
the position, or "decision" of the Tribunal on the prior question. Nevertheless, an appeal might not be
attractive to a party in the absence of some proposed decision on compensation. Further, it was quite inappropriate to
characterise the order of 9 June 2008 as merely confirmatory of what had
gone before and of no legal effect. On
the contrary it was the cornerstone of what the Tribunal was achieving and was
ultimately something required by law. Further,
the analysis which the appellants had advanced was consistent with the approach
of the Tribunal, as disclosed in its website and in other documents which it
had issued. Nothing in Rule 27 of
the Lands Tribunal for Scotland Rules 2003 harmed the appellants'
submissions. It had to be acknowledged
that the terms of Rule 6 of those rules, which were concerned with the
taking effect of orders, appeared to be inconsistent with the timetable for
appeals to the Court of Session. The
21 days period referred to in Rule 6(1)(a) was inexplicable.
Reply on behalf of the
respondent
[21] Senior counsel
for the respondent expressed the view that the content of the Lands Tribunal
for Scotland Rules 2003 was inconsistent with current legislation and other
rules. The reference in Rule 6 to
21 days and the disposal by the Court of Session of a case stated by the
Tribunal were inconsistent with the current mechanisms of appeal. Senior counsel submitted that the appellants'
submission to the effect that only the Order issued on 9 June
2008 was a
"decision" was wrong. The appellants'
dissatisfaction was with the earlier actings of the Lands Tribunal; appeals should have been taken against those
earlier decisions. The authorities
relied upon by the appellants had been decided in context very different from
the present one.
The decision
[22] Section 11(1) and (8) of the 1992
Act, under which this appeal has been brought to this court, prescribe no
period within which such an appeal must be brought. Accordingly, the time limit applicable to
such appeals is that provided for by Rule of Court 41.20(1)(b). Since there was no suggestion that, in the
present case, the Lands Tribunal issued a statement of reasons for its decision
later than the decision, the matter is regulated by subparagraph (b)(i) of
Rule 41.20(1). It specifies the
period thus "where no such period is prescribed (by the enactment under which
the appeal is brought), within 42 days after - (i) the date on which the
decision appealed against was intimated to the appellant; ...".
Rule of Court 41.1(2), which deals with the interpretation of
Chapter 41 of the Rules of Court states that "unless the context otherwise
requires - ... 'decision' includes assessment, determination, order or
scheme; ...".
[23] It is plain
that the present appeal was brought within a period of 42 days after the
Lands Tribunal made its Order, issued on 9 June 2008.
Accordingly, the question for determination is whether that Order can be
seen as the "decision" appealed against.
In this connection it has to be borne in mind that the grounds of appeal
tabled by the appellants focus criticism upon the Opinions of the Lands
Tribunal issued on 5 January and 11 October
2007. Since those parts of section 11 of the
1992 Act which authorise an appeal such as this also refer to "a decision of
the Tribunal", it is appropriate to consider the other provisions of the Act to
see whether they cast light upon the issue in question. In that connection it is necessary to note
that section 11(10) of the 1992 Act provides:
"In this section 'decision' includes
any direction or order, and references to the giving of a decision shall be
construed accordingly".
[24] One of the
features of the Tribunal's Order of 9 June 2008, which may be significant, is that,
while it contains a narrative of the circumstances in which the Order is being
made, and while it records the actions which the Tribunal is taking, it does
not record the Tribunal's reasons for its actions. However, section 10(1) of the 1992 Act
requires that any tribunal to which it is applicable, which includes the Lands
Tribunal for Scotland, is under a duty to furnish a
statement of the reasons for its decision.
The requirement of that subsection might be thought to cast doubt upon
the suggestion that the Order of 9 June 2008 could be seen as a "decision" of
that Tribunal. Nevertheless,
section 10(6) of the 1992 Act provides that:
"Any statement of the reasons for a
decision referred to in paragraph (a) or (b) of subsection (1), whether given
in pursuance of that subsection or of any other statutory provision, shall be
taken to form part of the decision and accordingly to be incorporated in the
record."
Having regard to the fact that, in the documents issued by
the Tribunal on 5 January 2007 and 11 October 2007 there are
statements of the Tribunal's reasons for the decisions which they record in
those documents and which are reflected in the terms of the subsequent Order,
it is plain to us that the Order of 9 June 2008 must be taken to embrace
those statements of reasons, in accordance with section 10(6) of the 1992
Act. In our view, it follows from that state
of affairs that criticism of the reasons given in the Opinions of 5 January
2007 and 10 October
2007 must be
seen as criticisms of reasons which themselves are to be taken to form part of
the Order of 9 June 2008.
So, the question we have to resolve is quite simply whether that Order
can be seen properly as a "decision" of the Tribunal, within the meaning of
section 11 of the 1992 Act and Rule of Court 41.20(1)(b)(i), which
prescribes the time limit founded upon by the respondent.
[25] Looking at the
terminology employed in that Order, we note that it indicates a present
determination, being a refusal, of the appellants' application; it includes a direction that the respondent
should pay the specified sum of money to the appellants; and finally makes findings regarding the
liability of the appellants to the respondent in expenses. We have concluded with little difficulty that
that Order was a "decision" of the Lands Tribunal, within the meaning of
section 11(10) of the 1992 Act.
Thus, in our view, it was timeously made the subject of appeal in the
appeal document lodged on behalf of the appellants on 18 July
2008.
[26] Counsel for
the appellants cited to us several cases in which the meaning of the term
"decision" was considered. We have to
recognise that, with the exception of Regina v Lands Tribunal ex
parte City of London Corporation, those cases considered the meaning of the
word in contexts very different from that of this case. Nevertheless, the observations upon which
counsel for the appellants relied appear to us to confirm the view which we
have formed that the "decision" is the decision of the suit by the Tribunal, as
opposed to its separate statements of reasons.
We are also confirmed in our view by the provisions of section 90
of the 2003 Act, under which the appellants' application was brought. In subsections (1) and (6) particularly,
reference is made to an "order" of the Lands Tribunal. That suggests to us that the operative act of
the Tribunal in which, resolving the issues before it, it exercises its
jurisdiction in this regard must be an Order of the Tribunal as opposed to any
other emanation from it, such as an Opinion.
In all these circumstances, we consider that the present appeal is not
time barred and we shall accede to the appellants' motion.
[27] Before parting
with this case, we feel that it is appropriate to make certain observations
concerning the operation of appeals from the Lands Tribunal for Scotland more generally. Before us, there was much discussion as to
whether, had they been so minded, the appellants could have appealed within the
requisite period of 42 days, the acts of the Tribunal embodied in its
Opinions dated 5 January 2007 and 11 October
2007. It is not necessary for us to reach a firm
view on that matter. However, we tend to
think that they could. Having regard to
the form and purpose of those Opinions, it may be that they could properly have
been regarded as "decisions" within the meaning of the legislation, which were
appealable. M.R.S. Hamilton Limited v Keeper
of the Registers of Scotland involved an appeal of what might be called an
interlocutory decision of the Lands Tribunal.
No issue was taken as to the competence of that appeal. However, we consider that it is regrettable
that there would appear to be doubt about this issue. Surprisingly, even the Lands Tribunal itself seems
to be uncertain about the matter, as appears from the equivocal statements made
in its letter dated 15 January 2007, 6/2 of the appellants' inventory of
productions. We consider that it would
be desirable for these doubts to be dispelled by appropriate changes in the terminology
used by the Tribunal to describe its decisions, which should leave no doubt as
to their categorisation in terms of section 11 of the 1992 Act and Rule of
Court 41.20(1)(b).
[28] During the
course of the discussion before us, some reference was made to the Lands
Tribunal for Scotland Rules 2003. We
consider that certain features of those rules are obviously
unsatisfactory. Rule 6, which is concerned
with the taking of effect of orders of the Tribunal provides for the taking of
effect of orders on the occurrence of whichever of certain specified events
last occurs after the Tribunal has made an order. Among the events specified is the expiry of a
period of 21 days after the date when the order was made by the
Tribunal. We are at a loss to understand
the relevance of that period, having regard to the period for appeals specified
in Rule of Court 41.20. Among the
other events specified is the disposal by the Court of Session of a stated case
by the Tribunal on appeal to that court, or, if there is an appeal to the House
of Lords, the disposal of the case by the House of Lords. No mention is made of the disposal of an
appeal against a decision of the Tribunal brought under Rule of
Court 41.19, a common method of appeal in relation to the decisions of the
Tribunal. Likewise, among the specified
events is the abandonment or other termination of the proceedings on a case
stated by the Tribunal. Again there is
no mention of the abandonment or other termination of an appeal under Rule of
Court 41.19. We consider that these
shortcomings of the Rules of the Tribunal should be addressed so as to avoid
the confusion which the present formulation of those Rules is likely to
engender.
