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Since the abandonment of Ryde鈥檚 Scale in 2002, it has become normal practice for surveyors鈥� fees in compulsory purchase cases (with the exception of Part I claims and claims for work in connection with utility company functions) to be assessed on a quantum meruit basis, usually by means of adopting an hourly rate applied to the hours reasonably and necessarily spent on the claim. The approach to be adopted in the assessment of surveyors鈥� fees is set out in more depth at Part 2 section 5 of the Land Compensation Manual.

In Matthews v Environment Agency [2002] 3 EGLR 168 the compensating authority initially offered fees based on Ryde鈥檚 Scale, and then on Ryde鈥檚 Scale plus 50%. The Environment Agency had however accepted that the actual fees incurred by the claimants were reasonable. The Tribunal awarded the claimants the full amount of surveyors鈥� fees incurred, whilst commenting on the Government鈥檚 proposal to abandon Ryde鈥檚 Scale.

In Newman v Cambridgeshire CC [2011] UKUT 56 (LC) unusually the only matter to be determined was the quantum of surveyors鈥� fees to be reimbursed to the claimant. The case was heard under the written representation procedure. The amount of compensation claimed (excluding surveyors鈥� fees) was initially 拢46,600 and the initial offer of compensation from the acquiring authority was 拢100 although that figure was ultimately increased to 拢11,800. The acquiring authority had agreed a rate of 拢120 per hour for surveyors鈥� fees at the outset and initially conceded that the surveyor鈥檚 time sheet was accurate and fair. However, it disputed the level of fees on the basis that they were disproportionate to the amount of compensation finally agreed.

The Tribunal determined that the compensation offers made by the acquiring authority were far too low and that much work was needed by the claimant鈥檚 surveyor before more realistic offers were forthcoming. It also noted that the acquiring authority had resisted the payment of compensation for injurious affection until the final stages of the negotiations. The fee claimed was therefore proportionate to the size and complexity of the claim and commensurate with the time, effort and expertise required to deal with it. The Tribunal awarded fees on the following basis:

This decision illustrates that the conduct of the parties (or their representatives) in a case can be relevant to the assessment of fees.

Poole v South West Water Ltd [2011] UKUT 84 (LC) also concerned solely surveyors鈥� fees and was heard under the written representation procedure. The compensation related to the disturbance suffered by a tenant farmer during the installation of a new water main. The project was planned to be completed in six months, although it subsequently extended to 18 months. The amount of compensation claimed (excluding surveyors鈥� fees) was initially 拢24,274 but the claim was ultimately settled at 拢12,940. The claimant鈥檚 surveyor submitted a fee claim totalling 拢3,219, based on 拢120/hour and mileage at 50p/mile.

The compensating authority had offered a fee of 拢1,274, based on Ryde鈥檚 Scale plus 20% and 36 out of the 37 fee claims received in relation to the scheme had been settled on that basis. It maintained that the hours claimed, the hourly rate and the mileage rate adopted by the claimant鈥檚 surveyor were excessive and that the amount of fee was disproportionate to the amount of compensation agreed.

The Lands Tribunal determined that the fee claimed was proportionate to the size and complexity of the claim and commensurate with the time, effort and expertise required to deal with the case. The settlement of all the other fee claims relating to the scheme on the basis of Ryde鈥檚 Scale plus 20% was held not to be relevant to this case.

This decision illustrates that an authority鈥檚 long established (unilateral) adherence to a scale fee for particular types of work does not preclude the assessment of surveyors鈥� fees on a quantum meruit basis where appropriate. The future attitude of the utility companies to the imposition of scale fees remains to be seen.

Downsworth v Manchester City Council [2013] UKUT 142 (LC) concerned solely the surveyor鈥檚 fees to be paid in a compensation claim which related to the compulsory acquisition of a house in Toxteth, Manchester where compensation for the property had been agreed at 拢59,750 and the disturbance at 拢4,500.

The claimants鈥� surveyor claimed a total of 45.5 hours @ 拢175/hour (拢7,962), representing 28 hours for negotiating the claim, 17.5 hours for negotiating his fee, and a further 36.5 hours for the preparation of his case at Tribunal (solely in relation to the surveyor鈥檚 fees) and disbursements of 拢207.5 (all plus VAT). He relied on Matthews v Environment Agency [2002] 3 EGLR 168 and Poole v South West Water Ltd [2011] RVR 286 but the Tribunal found neither cases of assistance since they concerned whether or not the surveyors鈥� fees in those cases should be assessed by reference to Ryde鈥檚 Scale.

The acquiring authority had offered and already paid 拢3,840 plus VAT representing 24 hours @ 拢160/hour. This was calculated as comprising 8 hours for negotiating the property value, 6 hours for the disturbance claim and 10 hours for negotiating the fee. The acquiring authority stated that it normally reimbursed surveyors鈥� fees at between 拢90/hour and 拢150/hour. It produced evidence of two local firms of agents, one who charged between 拢120 and 拢150 per hour and the other between 拢90 and 拢110 per hour. The acquiring authority had offered 拢160/hour as a compromise and produced evidence to show that the surveyor had charged between 拢125/hour and 拢160/hour in four cases within this and a neighbouring CPO.

The acquiring authority also identified items on the surveyor鈥檚 case diary sheet where excessive amounts of time had been claimed. Three hours had been claimed for a 40 minute meeting with the acquiring authority when the surveyor had conceded that he was already in Manchester on that day.

The key word in the Tribunal鈥檚 decision is 鈥榩roportionality鈥�. It found the fees claimed were disproportionate to the work undertaken. The Tribunal found it 鈥榠ncredible鈥� that it took 28 hours to negotiate the claim and found it disproportionate that the surveyor should have spent a further 17.5 hours on negotiating his fees. The acquiring authority had already offered and paid 拢3,840 plus VAT as a compromise and the Tribunal awarded this figure together with disbursements of 拢207.50.

In respect of the costs of the hearing, since this was a case heard by written representations the Tribunal declined to make any order as to costs. The surveyor also claimed interest at 8.5% on his fee claim under the Arbitration Act 1996 but it was pointed out that by virtue of Rule 3(2) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 the Arbitration Act 1996 does not apply to proceedings before the Tribunal except for references by consent.

Dickinson v Network Rail Infrastructure Ltd [2014] UKUT 372 (LC) concerned a claim for 拢30,000 compensation under Part I Land Compensation Act 1973 relating to noise and vibration caused by the addition of extra rail tracks to the West Coast main line. The claimants were represented by Thompson Broadbent who had agreed to act on a 鈥榥o win no fee鈥� basis and also indemnify the claimants for their solicitors鈥� costs. The claimants sought an order to protect them from any liability for the compensating authority鈥檚 costs should the claim fail. The compensating authority counter claimed for the claimant鈥檚 agent to be joined as a party with a view to making an application for costs against it in due course. The authority also sought a costs cap on both sides of 拢30,000 should the Tribunal decide to give costs protection.

The Tribunal dismissed both applications and used its discretion to make an alternative order.

The alternative order made by the Tribunal limited the costs that the compensating authority could recover from the claimants after the date of the order to 拢15,000 but without prejudice to any application that the authority might subsequently make under Rule 10(3) (costs where any party has acted unreasonably and such).

In Da Silva v London Borough of Brent [2015] UKUT 120 (LC) the authority acquired the claimant鈥檚 interest in a flat pursuant to a compulsory purchase order. The value of the property was agreed at 拢200,000 together with a Home Loss Payment of 15% and payments in respect of fees and disturbance. However, the authority disputed certain of the sums claimed in respect of surveyor鈥檚 fees (which in total represented nearly 20% of the value of the property) and various disturbance items.

The acquiring authority paid 拢9,971 plus VAT in respect of the surveyor鈥檚 first two invoices which related mainly to assisting the claimant with securing alternative accommodation. However, it disputed the surveyor鈥檚 third invoice in the sum of 拢28,600 plus VAT. The surveyor stated that he had necessarily undertaken more work than might otherwise have been the case owing to changes in the authority鈥檚 personnel, which had led to the authority reviewing and changing their attitude to the claim and to the value of the claimant鈥檚 property. The personal difficulties faced by the claimant were further factors increasing the time reasonably spent on the claim.

The Tribunal pointed out that the claim was not a complex one, involving the valuation of a two-bedroom flat at 拢200,000 and the assessment of the disturbance costs arising therefrom. The amount charged by the surveyor in the third invoice was disproportionate to the nature and scope of his instructions. The claimant had viewed 60 alternative properties, in the majority of which the surveyor accompanied her. He had also increased his hourly rate from 拢140 to 拢150 per hour without informing the authority. The authority had made an offer to settle the third invoice at 拢18,500 plus VAT. The Tribunal determined that a reasonable amount was 拢14,300 plus VAT (half the amount claimed).

The decisions of the Tribunal in the above cases reflect the particular circumstances of each case. They are consistent with the advice provided in the RICS Professional Statement 鈥楽urveyors advising in respect of compulsory purchase and statutory compensation鈥� (April 2017) and with the advice contained in the Valuation Office Agency鈥檚 Land Compensation Manual.