Scottish Court of Session Decisions

The Act of Sederunt, 15th July 1876, V, 3 (2), enacts—“… In cases where it is found necessary to employ professional or scientific persons, such as physicians, surgeons, chemists, engineers, land surveyors, or accountants, to make investigations previous to a trial or proof, in order to qualify them to give evidence thereat, such additional charges for the trouble and expenses of such persons shall be allowed as may be considered fair and reasonable, provided that the judge who tries the cause shall, on a motion made to him, either at the trial or proof, or within eight days thereafter if in session, or if in vacation within the first eight days of the ensuing session, certify that it was a fit case for such additional allowance.”

George Haldane Mill as an individual and as the tutor of his three pupil children, his two minor children, with his consent and concurrence, pursuer, and others, brought an action against Lady Dundas, widow of Sir Robert Dundas of Arniston, defender, concluding for various sums as damages in respect of a motor car accident whereby the pursuer's wife was killed, and the pursuer himself sustained injuries.

After sundry procedure, in the course of which other pursuers, except George Haldane Mill, accepted sums tendered to them, and George Haldane Mill increased the sum for which he sued, the Lord Ordinary fixed a diet for trial, and the defender on 19th November 1919 made a tender to George Haldane Mill of £850 with expenses to date, which was not accepted. On 21st November 1919 the case was sent to trial at the sittings. The trial began on 23rd December, and on 24th December, after certain of the pursuer's skilled witnesses had been examined, the pursuer accepted the defender's tender of £850. The Judge at the trial ( Lord Skerrington) thereupon directed the jury to return a verdict for the pursuer and to assess the damages at £850.

On a motion to apply the verdict, counsel for the defender moved that his skilled witnesses should be certified under A.S., 15th July 1876, and that certificates should be refused for the pursuer's skilled witnesses.

Argued for the defender—The defender was entitled to have his skilled witnesses certified; he was within the terms of A.S., 15th July 1876, for the trial had gone on, not indeed to its natural conclusion, but sufficiently far to enable the Judge to certify that it was a suitable case. The defender had had to bring his skilled witnesses and keep them in readiness to give evidence, and but for the acceptance of the tender they would have gone into the witness-box. The pursuer could not have his skilled witnesses certified even though they had been examined, for he was not entitled to any expenses after the date of the tender. His acceptance of the tender implied that the case should never have gone to trial.

Argued for the pursuer—The defender was not entitled to have his skilled witnesses certified, for the A.S., 15th July 1876, only applied where the case had been fully tried Apart, however, from the A. S. the pursuer was entitled at common law to all reasonable expenses incurred by him up to the date of the tender accepted, including the expense of skilled witnesses, to enable him to prepare his case— Clements v. Corporation of Edinburgh, 1905, 7 F. 651, 42 S.L.R. 536. Alternatively, if the A.S. applied the pursuer was entitled to have his skilled witnesses certified at least quoad the expense incurred prior to the date of the tender.