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OUTER HOUSE, COURT OF
SESSION
[2009] CSOH 11
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CA111/07
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OPINION
OF LORD HODGE
in
the cause
J
A McCLELLAND & SONS (AUCTIONEERS) LTD
Pursuers;
against
I
R ROBERTSON & PARTNERS LIMITED
First
Defenders:
And
VEXAMUS
WATER (SCOTLAND) LIMITED
Second
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Ms Hamilton, Advocate; Pinsent Masons, Solicitors
Defenders: Mr McBrearty, Advocate; The Anderson
Partnership, Solicitors
30 January 2009
[1] This is an action in which the pursuers,
who are operators of livestock markets, sought damages for losses resulting
from the selection and provision of an effluent treatment system for a
livestock market at Ballymena, Northern Ireland. The system was allegedly
not fit for the purpose for which it was required. The pursuers sued the first defenders, who
are consulting civil engineers, for breach of an implied term of contract that
they would exercise professional skill and care and the second defenders, who
designed and manufactured the system, for breach of an implied term of contract
that the system was fit for purpose.
[2] On 12 September 2008 I allowed
parties a eight day proof of their averments which was scheduled to commence on
13 January 2009. Parties settled the action and the pursuers
enrolled a motion for the certification of skilled witnesses under Rule of
Court 42.13 and for an additional fee under Rule 42.14. During the hearing of that motion, which was
opposed by the defenders, an issue arose as to the competency of the court certifying
a skilled person whom the pursuers had not proposed to call as a witness and
whom they had not included in their witness list under Rule 47.12.
[3] The
skilled person was Mr James Owen, who is a quantity surveyor with
experience in civil and engineering infrastructure works. He is employed by Jacobs UK Limited, a multi-disciplinary design and
management company which has experience in, among other projects, water
treatment systems. Before they raised
the present action, the pursuers' solicitors instructed Mr Owen to produce
a report on the quantification of the pursuers' claim and to provide advice on
the reasonableness of the charges which they had incurred in relation to the
provision of the effluent treatment system, dealing with the problems which
occurred when it became blocked and eventually its replacement. The pursuers provided Mr Owen with a
list of their expenses and the invoices and other documents which vouched that
expenditure. Mr Owen did not carry
out investigations. He analysed the
documents with which he had been provided and produced a report to which he
attached the vouchers. In that report he
explained what the charges related to and commented on the reasonableness of
the rates charged.
[4] Mr Owen's
report, which the pursuers gave the defenders and lodged in process, was, Ms
Hamilton submitted, a useful document for the parties to the action as it set
out the pursuers' claim with Mr Owen's explanations and commentary. I am satisfied that he is a skilled person
and that he used his professional skill and experience in compiling the
report. It may, for aught yet seen, have
assisted the parties to come to a settlement of the dispute. But the pursuers did not include Mr Owen
on their list of witnesses and, if the proof had run, proposed to call their
managing director, Mr Shaun Irvine, and Mr Tommy McQuade, a
quantity surveyor, to describe the problems which the pursuers encountered with
the effluent treatment system, the remedial works carried out and the
installation of the replacement system.
[5] Rule
of Court 42.13 is in the following terms:
"Charges for witnesses
(1) Charges for the attendance at a proof or
jury trial of a witness:-
(a) present but not called to give evidence,
or
(b) who is held as concurring with another
witness who has been called,
may be allowed if
a party has, at any time before the diet of taxation, enrolled a motion for the
name of that witness to be noted in the minute of proceedings in the cause.
(2) Subject to paragraph (3), where it is
reasonable in any cause to employ a skilled person to make investigations or to
report for any purpose, any charges for such investigations and report and for
any attendance at any proof or jury trial shall be allowed in addition to the
ordinary witness fee of such person at such rate as the Auditor shall determine
is fair and reasonable.
(2A) [concerning witnesses giving evidence by
affidavit]...
(3) The Auditor may make no determination
under paragraph (2) or (2A) unless the court has, on granting a
motion made for the purpose, before or at the time at which it awarded expenses
or on a motion enrolled at any time thereafter but before the diet of taxation -
(a) certified that the witness was a skilled
witness;
(aa) certified that it was reasonable to employ
that person to make investigations or to report; and
(b) recorded the name of that witness in the
interlocutor pronounced by the court.
...".
Rule 42.16 sets out the Table of Fees which regulates
the fees of a solicitor charged in an account in any cause between party and
party and Chapter II of the Table of Fees, which covers witnesses' fees,
contains in paragraph 1 the following rule, which is substantially the
same test as that contained in Rule 42.13(2):
"Where it was
reasonable to employ a skilled person to make investigations or to report for
any purpose, any charges for such investigations and report and for any
attendance at any proof or jury trial shall be allowed at a rate which the
Auditor of Court shall determine is fair and reasonable".
[6] In his
submissions opposing the application for certification of Mr Owen,
Mr McBrearty's principal submission was that it was not reasonable for the
pursuers to have instructed Mr Owen as he did not add anything to that
which the pursuers' own directors and employees could speak. But in the discussion as to whether the court
could competently certify a skilled person who was not scheduled to be a
witness, he submitted that, absent certification as a skilled witness, the
Auditor could not allow any charge in relation to the work of that person.
[7] I am
not persuaded that that is so. It appears to me that those responsible for
drafting the amendment to Rule 42.13 in the 2006 Act of Sederunt (S.S.I.
2006 No 294) sought to extend the certification regime to cover skilled persons
who are employed to carry out investigations and provide reports which enable
parties to narrow the areas of dispute.
This is a valuable role, particularly in commercial actions in which
case management by the court can expedite resolution of disputes. But it appears to me, having regard to the
context of the Rule in which the amendment was made and the requirement to
certify the person as a skilled witness, that the Rule as amended envisages
that such people have still to be, or be intended to be, witnesses at an
appointed evidential hearing. I refer to
(a) the title of the Rule, (b) the provision of the charge in paragraph (2)
as an addition to the witness fee and, principally, (c) the requirement that
the court certify the person as a skilled witness in paragraph (3). In my opinion, having regard to the case law
which I discuss below, a skilled person is not to be treated as a witness for
the purpose of this Rule before the court has allowed a proof (or jury trial)
and, in commercial actions, a list of witnesses has been produced.
[8] It is
necessary to exercise care when considering earlier authorities on the
certification of skilled witnesses as the judges' comments in such cases reflect
their interpretation of the rule which was then in force. But such cases reveal how the Rule has been
amended and interpreted. An examination
of the cases referred to in the annotations to the Rule in the Parliament House
Book reveals that certification of skilled witnesses in the Act of Sederunt of
15 July 1876 was the task of the judge who tried the cause at the
trial or proof. The utility of the rule
in that context was clear. In those days
the professional persons may frequently not have produced reports which would
demonstrate their investigations in preparation to give evidence but may have
subjected themselves to precognition.
Thus the judge might have been in a better position than the Auditor to
judge from their evidence whether it was appropriate to allow a charge for their
preparations in addition to the witness fee.
But where the certification rule did not apply, because the trial or
proof had not occurred, the Auditor was entitled, without the certification of
the court, to allow such payments for the expert witness as he thought just and
reasonable:- Clements v Corporation of
Edinburgh (1905) 7 F 651 (Second Division). See also AB
v CD (1894) 22 R 186. The Auditor
was able to consider such charges as he did other outlays incurred by the
solicitor in the progress of the case. Similarly,
in a later rule which still required that the proof or trial had taken place
before the judge could certify a skilled witness, Lord Keith confirmed
that the Auditor could allow reasonable charges for employing skilled witnesses
without a certificate of the court if the case settled after proof or trial had
been allowed but before the evidential hearing took place:- Storrie
v Mitchell 1937 SLT 624.
[9] Thereafter
the court extended the circumstances in which its certification was
required. In Anderson v Strathclyde
Passenger Transport Executive 1986 SLT 619, Lord McCluskey,
interpreting Rule 347 of the 1965 Rules of Court, considered
that he had power to certify skilled persons for additional remuneration as
skilled witnesses when on the first day of a jury trial and after the jury had
been empanelled, parties settled the case extra-judicially. Similarly in Devenney v Greater Glasgow
Health Board 1989 SLT 578, Lord Weir, interpreting the
same rule, held that it was no longer the practice that a proof or jury trial
had to have taken place before a judge could certify a skilled witness. In that case settlement was achieved on the
day before proof was due to commence. In
Clark v Laddaws 1994 SLT 792,
Lord Milligan held that it was necessary to obtain the certification of
skilled witnesses when a case settled three days before the proof
commenced. The editors of the Scots Law
Times observed at the end of their report of that case that Rule 42.13 (2)
and (3) of the 1994 Rules made explicit provision in line with that
decision. At this stage, therefore, the
court had extended the certification requirement to the time after a proof had
been allowed but before the proof had taken place. Under the 1994 Rules the test which
determined entitlement to the additional charge was whether it was necessary to
employ the skilled person to make investigations before a proof or jury trial
in order to qualify him to give evidence.
[10] In Parratt v Ceiling Decor Limited 1998 SC 179, Lord MacLean
held that it was incompetent under the 1994 Rules for the court to certify
a skilled person before a proof had been allowed or issues approved as the rule
was concerned with witnesses and not with skilled persons who might or might
not be witnesses. But the Rule was again
amended in 1998 and the test became whether it was necessary to employ the
skilled person to make investigations in order to qualify him to give evidence in
a prospective proof or jury trial . In Earl v Kvaerner Energy Limited 2002 SLT 1167, in which a
pursuer accepted a defender's tender before a procedure roll diet, Lord Eassie
opined that the defender's objection to the competency of certification would
have had force but for the 1998 amendment which made reference to a
prospective proof or jury trial. Lord Eassie
pointed out the ambiguity of the word "prospective" and expressed doubts, which
I share, about the utility of extending the certification regime. Having observed that in Parratt the recoverable amount of the remuneration of the expert
had been left to the Auditor's discretion, he stated:-
"Whether the
intention of the amendment effected by the 1998 Act of Sederunt was to
extend the need for certification, as a requisite for the recovery of
remuneration paid for the carrying out of investigations by a skilled person,
to cases which were settled or disposed of prior to the allowance of proof or
jury trial is a matter which is not clear.
I have also to say that the utility of extending the rule is not evident
to me".
[11] Against
this background, it appears to me that the 2006 amendments widened the test
from necessity for the purpose of qualifying the witness to give evidence to
the reasonableness of the employment of the skilled person to make
investigations or to report for any purpose.
But the skilled person has still to be a skilled witness and be
certified as such. Mr Owen was not
employed to be a witness and so certification is not competent.
[12] Nonetheless,
that does not prevent the Auditor from determining whether the cost of Mr Owen's
services is an appropriate outlay in the preparation of the case and the
negotiation of the settlement. In Clements, Storrie, Parratt and Earl the court has recognised the power
of the Auditor to fix fair and reasonable charges for the services of the
skilled person in an appropriate case in circumstances in which the
certification of the court is not required or competent.
[13] In any
event, Part VII of the Table of Fees appended to Rule 42.16 allows
charges for commercial causes and the other specified causes to be based on the
Table "according to circumstances". In
my opinion in such cases the Auditor may rely on that provision and paragraph 1
of Chapter II of the Table of Fees (see paragraph 5 above) as a basis within
the Table of Fees for allowing fair and reasonable charges to a skilled person
who is not a witness and accordingly not certified as such. It appears to me that the Auditor does not
need to rely on Part VII of the Table of Fees to do so, but it is not necessary
to decide that point in this case. In
forming these views I do not overlook the heading of Chapter II of the Table of
Fees, but my interpretation is consistent with the case law to which I have
referred. It appears to me that
paragraph 1 of Chapter II is otiose if it is confined to skilled persons who
are witnesses as Rule 42.13(2) already covers that circumstance. In order to reflect the prior case law to
which I have referred in paragraph 12 it may be appropriate to relocate
paragraph 1 of Chapter II elsewhere in the Table of Fees so that the heading of
that Chapter does not confuse.
[14] I am
therefore satisfied that in refusing as incompetent the motion to certify Mr Owen
under Rule 42.13 I have not prevented the Auditor from allowing as a
recoverable charge a reasonable sum for his remuneration, should he in his
discretion consider that to be a justified outlay.
