LANDS TRIBUNAL FOR SCOTLAND
George House
126 George Street
Edinburgh EH2 4HH
Mr Henry Jekyll
Jekyll & Hyde Solicitors LLP
3 Burke & Hare Wynd
Edinburgh EH2 3TU
DX Edinburgh 2
Tel: 0131 271 4350
Fax: 0131 271 4399
DX ED 259
LP-14 Edinburgh 2
www.lands-tribunal-scotland.org.uk
Our ref:
Your ref:
LTS/COMP/2009/14
RLS/Crossan
Date:
27 August 2009
Dear Sirs
Robert Louis Stevenson House, 5 Hispaniola Crescent, Edinburgh EH5 6HJ
Title Conditions (Scotland) Act 2003
I enclose herewith the Order of the Tribunal appointing a date for the proof (ie.
hearing of evidence and arguments on the application).
It should be stressed that the nature of the Lands Tribunal is such that a discharge
of any diet effectively leads to a waste of judicial time. Postponement or
adjournment, with or without consent of other parties, will not be allowed unless
very good reason is demonstrated.
I also refer you to the following information for guidance on procedure leading up to
and during the hearing. Further general information can be obtained from the
Tribunal’s website www.lands-tribunal-scotland.org.uk. It should be noted that this
guidance is subject to any decisions which the Tribunal may make at the hearing in
the exercise of its discretion in order to ensure a fair and efficient hearing of the case.
TIMETABLE


Three copies of all Productions which are intended to be used or put in
evidence at the proof must be lodged with the Clerk to the Tribunal at least 14
days before the hearing, with copies to the opposing party or parties.
Intimation of lists of witnesses and legal authorities (ie. cases or statutes to
which you may wish to refer) should be made to the Tribunal at least 7 days
before the hearing.
PRODUCTIONS
Where practicable, copies of each Production should be lodged within the time limits
set out above. If you do not meet the time limits the Tribunal will not look at your
material unless you get special permission to lodge it late. Except where the
Production is simply intended as a “visual aid” leave will not be given unless the other
party or parties consent or some good cause is shown. The other side is likely to
object if they have not had a chance to study your material and make preparations to
answer it. The Tribunal also likes to look at material in advance.
For the convenience and ease of use of the Tribunal and all parties involved during the
course of the hearing (including witnesses), the following points should be adhered
to:
A clear inventory, ie a numbered list, should accompany the Productions.

All Productions should be clearly numbered and identified, for example, with
Applicants’ Productions numbered A1, A2, etc. and Respondents’ Productions
numbered R1, R2, etc.

Documents lodged as productions should have pages numbered.
WITNESSES
You should supply a list of any witnesses you intend to call, containing their full
names, occupations, qualifications and addresses.
AUTHORITIES
When the hearing takes place in Edinburgh, the Tribunal has easy access to Session
Cases, Scots Law Times, standard text books, and its own unreported decisions. If any
other authorities — including in particular any English or European law reports — are
to be relied upon, adequate copies should be provided. It is also helpful to have copies
when the hearing is out of Edinburgh. You should discuss with the Clerk whether
copies are needed.
COMPENSATION
If there is a claim for compensation by the owner of the benefited property or the
holder of the title condition, under Section 90(7)(a) or (b) of the 2003 Act, that claim
will be heard in the course of the hearing on the merits of the application, unless an
application is made to separate the hearings on merits and on compensation. The latter
course may be preferable in cases involving a large number of claimants or where
evidence and submissions on the claim for compensation are likely to be extensive.
The question as to whether separation of the hearings is more appropriate should be
discussed with the other party, and with the Clerk, as soon as possible. In any event, if
details of the basis for such a claim (or for opposing such a claim) have not already
been lodged and intimated to the other party or parties, this should now be done as
soon as possible.
SETTLEMENT/AGREEMENT ON EVIDENCE AND ISSUES
Even although a hearing has been fixed, the Tribunal encourages parties to discuss
possible agreement or resolution of the dispute. As well as saving the time, expense
and anxiety of a hearing, this may enable parties to agree on detailed practical matters
which may not be within the scope of the legal dispute. If parties are having difficulty
discussing possible agreement, they may wish to use an alternative dispute resolution
procedure such as mediation. A list of mediation providers is available on the
Scottish
Mediation
Network’s
website,
www.scottishmediation.org.uk
If agreement is reached, the Tribunal should be notified and, if appropriate, asked to
make an order formalising the agreement, as soon as possible.
Even if the dispute is not resolved, the time taken up at the hearing may be reduced if
parties discuss the extent to which questions of fact or legal issues may be the subject
of agreement. Where there is such agreement, it is helpful if the parties can produce
an agreed statement, or Joint Minute, setting out the matters which have been agreed.
PROCEDURE AT THE HEARING
The onus is normally on the applicant to satisfy the Tribunal that the statutory test
(contained in Sections 98 and 100 of the 2003 Act) for varying or discharging the
relevant title condition has been satisfied. This requires the leading of evidence on
questions of fact which are not agreed, and then putting forward arguments as to why
the case should succeed. Parties can appear in person but may not be represented by a
person who is not counsel or a solicitor without the Tribunal’s consent (which should
be obtained beforehand).
The proof in opposed cases normally takes the following sequence: 
Parties may be invited to make brief opening statements of their positions.

The applicant’s evidence is then led. Evidence is given under oath or
affirmation and witnesses will be open to cross-examination and reexamination if required.

The opposing party (or their representatives) will then have the opportunity of
leading evidence, following the same procedure.

At the close of evidence, the parties will be invited to present their final
arguments to the Tribunal as to why they should succeed.
SITE INSPECTION
At the conclusion of the hearing, or on some future date, the Tribunal will visit and
inspect any relevant locations. When the Tribunal holds an accompanied inspection,
the parties may attend and draw the Tribunal’s attention to any physical features
which have been referred to in the evidence and arguments. No new evidence will be
heard at this stage of the proceedings.
DECISION
The Tribunal is unlikely to reach a decision at the hearing and in any event is obliged
by the formal Rules to issue a written decision. This may be within a period of about
six weeks but could on occasion be longer. It depends on how busy the Tribunal is
and the complexity of the particular case.
EXPENSES
A party who has incurred significant expense in presenting their case may wish to ask
the Tribunal to make an award of expenses against another party. It should be noted
that under Section 103 of the 2003 Act the Tribunal has a discretion whether or not to
award expenses, but has to consider particularly who has been successful and to what
extent. The expenses of a separate hearing on compensation will be considered
separately. Questions of expenses are usually reserved, to await the outcome of the
case, and can normally be dealt with on the basis of written arguments without the
need for a further hearing.
Once the Tribunal has decided which, if any, party is liable to pay expenses an Order
to this effect is issued. If agreement on the amount to be paid cannot threreafter be
reached by parties, the matter will require to be referred to the auditor of the relevant
local Sheriff Court or the Court of Session in Edinburgh. The auditor will act as an
independent assessor. He will fix a proper sum in accordance with guidelines
established in published Tables of Fees (this procedure is known as a “taxation”).
APPEALS
Section 11 of the Tribunals and Inquiries Act 1992 and the Rules of Court lay down
the provisions and procedures for appeal. In particular, Rule 41.19 is likely to be
appropriate. A written appeal on a point of law against a Tribunal decision must be
presented to the Court of Session no later than 42 days after the decision was
intimated to the appellants. It would also be helpful if the Clerk to the Tribunal could
be apprised of any such appeal.
HEARING FEE, ETC.
The Tribunal charges a fee, currently £155.00 for each day of the hearing, and the
appropriate fee will be requested from the Applicants shortly after the hearing. If a
request for the cancellation or postponement of a hearing is granted then a fee,
currently £75.00, will be payable. It should be noted that no other case has been
arranged for this date.
Yours faithfully
Alan Breck Stewart
For and on behalf of the Lands Tribunal for Scotland