Claims for ex gratia paymentsPublished: 09 June 2017
Freedom of information class: About Registers of Scotland
Details of the keeper's policy on ex gratia payments.
- The Land Registration etc. (Scotland) Act 2012 sets out the circumstances in which the Keeper is under a statutory duty to pay compensation. However there may also be circumstances where loss is suffered as a result of a decision taken by the Keeper where she is under no legal obligation to pay compensation. The Keeper will therefore consider making an ex gratia payment:
(a) To any person who has suffered a loss any part of which can reasonably be attributed to an act or omission on her part which has contributed to the loss but which is not contrary to law, or
(b) Where doing so will secure better value for the public purse than would otherwise be possible, or promotes good administration in some other manner.
- She will not make an ex gratia payment where loss arises as a result of a statutory liability whether under the 2012 Act or otherwise (such as a warranty claim), a breach of a statutory duty, a breach of any other duty, or a breach of contract. In those circumstances the amount of any compensation that is due to be paid will be determined in accordance with the applicable law.
- It follows that there is no right to receive an ex gratia payment, and that a decision to make or refuse a payment is entirely a matter for the Keeper’s discretion. She will not enter into any correspondence about the merits of a decision to make or refuse a payment.
- The RoS complaints procedure does not apply to a decision to make or refuse an ex gratia payment. The circumstances which led to the alleged loss may however be the subject of a complaint, and if so will be dealt with appropriately under the complaints handling procedure.
- An ex gratia payment is an exceptional remedy, and will normally only be paid in exceptional circumstances.
- The Keeper in determining whether there are exceptional circumstances will have regard, along with such other considerations as seem relevant to her, to the following factors:
(a) Whether an act or omission complained of was in accordance with the Keeper’s policy at the relevant time,
(b) The availability of any other legal or administrative remedy,
(c) Whether any other available remedy has been exhausted,
(d) Whether the applicant has taken all reasonable steps to minimise their loss,
(e) The extent to which the applicant or any relevant third party has shown good faith.
Value of claim
- The Keeper when making a special payment is not seeking to put the person in the same position as they would have been had any loss not been suffered. She is rather seeking to make a payment that is in her opinion fair in all the circumstances of the particular case. She may for example consider it fair to make a payment that represents only part of a claim for loss.
- The Keeper will when making a payment will where applicable seek to reimburse persons only for financial or pecuniary loss (‘patrimonial loss’) directly caused by an act or omission. She will not consider any claim relating to an indirect loss (‘consequential loss’). She will not compensate any person for pain or suffering (‘solatium’) other than in the most exceptional circumstances.
- It is not a good use of public funds to consider claims for very modest amounts where neither Parliament nor the courts have provided a remedy, and the Keeper will exercise her discretion accordingly.
- The Keeper will consider applications made by agents on behalf of the person claiming compensation for a loss caused by an act or omission. She will not however reimburse the agent for a loss said to have been incurred directly by the agent.
- Where the agent is a solicitor the Keeper may consider claims for reimbursement of reasonable and properly incurred legal expenses in connection with an application.
Applying for a payment
- The Keeper will make ex gratia payments from time to time as she considers fit, and for that purpose will consider applications for such a payment.
- There is no prescribed form for applying for an ex gratia payment.
- A claim should be made in writing, include detailed information about the nature and circumstances of the loss, and address the issue of why exceptionally it is appropriate to make a payment.
- A claim must be properly quantified and accompanied by evidence, such as receipts or invoices.
- Claims should be directed to:
153 London Road
The Keeper aims to acknowledge claims with 7 days from their receipt by Registers of Scotland.
- Claims will be dealt with as soon as is practicable, bearing in mind that they may raise complex issues that will require investigation and analysis. They may also require further information or vouching (including by independent assessors), consultation with third parties, or to be put on hold until independent proceedings or investigations are complete. The Keeper aims however to determine clearly meritorious claims within 6 weeks from their receipt.