Scottish Sheriff Court Decisions

(A3774/07)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

CHARLES BENJAMIN

Pursuer and Appellant

against

THE STANDARD LIFE EMPLOYEES SERVICES LIMITED

Act: Cameron, Solicitor, Corries

Alt: Ashby, Solicitor, Simpson & Marwick

EDINBURGH, 17 December 2010

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor dated 17 December 2009; finds the pursuer and appellant liable to the defenders and respondents in the expenses occasioned by the appeal and remits the account thereof when lodged to the Auditor of Court to tax and to report thereon.

(signed) E Bowen

Note:

1. This appeal arises in an action of damages for personal injuries in which absolvitor was granted after defences had been lodged but before the allowance of proof. It follows rejection by the sheriff of a Note of Objections to a Report by the Joint Auditor of Court dated 14 August 2009 on the defenders' account of expenses. The issue of contention is the allowance of the cost of reports obtained on behalf of the defenders from a consultant orthopaedic surgeon and a consultant agronomist, neither of whom was certified by the Court as a "skilled person".

2. The Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 (SI 1992 No 1878) provides, following a series of amendments, in paragraph 1:

"Skilled persons

Where it is necessary to employ a skilled person to make investigation in order to qualify that person to report and/or to give evidence in any action, charges for such investigations and for the attendance at any hearing in the action shall be allowed at the rate which the Auditor of Court shall determine what is fair and reasonable provided that the Court grants a motion to that effect not later than the time at which it awards expenses and the witness's name is recorded in the interlocutor".

3. The terms of that provision are clear, and at first glance comparable to the terms of Rule 42.13 of the Rules of Court of Session 1994 viz:

"(2)...Where it was necessary to employ a skilled person to make investigations before a proof or jury trial in order to qualify him to give evidence, charges for such investigations, and for any attendance at the proof or jury trial, shall be allowed in addition to the ordinary witness fees of such person at such rate which the Auditors shall determine is fair and reasonable.

(3) The Auditor may make no determination under paragraph (2) unless the Court has granted a motion not later than the time at which it awarded expenses (a) certifying that the witness was a skilled witness who made investigations, attended or gave evidence at the proof or jury trial as the case may be (b) recording the name of that witness into the interlocutor pronounced by the Court."

It is well established in the Court of Session that timeous certification is as necessary, in order to invoke that provision, in cases which are settled extra-judicially as it is in cases which proceed to proof: Clark v Laddaws Ltd 1994 SLT 792; Skipton Building Society v Fotheringham 1994 GWD 956.

4. There is, however, a further provision in the Sheriff Court to which there is no comparable provision in the Court of Session. The Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1993 (SL 1993 No 3080) provides in general Regulation 6 that:

"The expenses to be charged against an opposite party shall be limited to proper expenses of process, subject to this proviso that precognitions, plans, analyses, reports, and the like (so far as relevant and necessary for proof of the matters in the record between the parties), although taken or made before the bringing of an action or the preparation of defences, or before proof is allowed, and although the case may not proceed to trial or proof, may be allowed".

5. The issue which arises in this case is similar to that which arose in Hamilton v Hamilton 1998 SCLR 73, a decision of Sheriff Higgins at Paisley. That was a case which had proceeded to proof, but all the facts were agreed by joint minute of admissions and the matter was disposed of on the basis of submissions. The pursuer sought the costs of obtaining reports from a firm of surveyors and a firm of valuers. No certification had been sought in terms of the Act of Sederunt of 1992. The Auditor of Court refused to allow the charges of these reports being satisfied that these were costs which were governed by the 1992 provision. In holding that the Auditor was wrong to exclude them from the pursuer's account of expenses the sheriff said this: "It is, I think, relevant to consider the stage in the proceedings at which certain action is taken. If (as I understand is the case here) prior to the closing of the record and to enable a pursuer either fully to set out a case relevantly and with specification or to enable a defender in detail to rebut the averments of the pursuer, a professional is engaged to carry out certain enquiries it does not follow that he or she is being so instructed at that stage as a witness. Clearly it may be, and indeed is almost inevitable, that he or she will ultimately give evidence, should a proof take place. However, it cannot, in my view be argued that a person instructed to use professional skills and expertise to enable a case properly to be pled can be said, at that stage to be a witness".

6. In his report to the Court in the present case the Joint Auditor acknowledged the difficulty of reconciling, at least in practice, the terms of paragraph 1 of the 1992 Act of Sederunt and General Regulations 6 of the 1983 Act of Sederunt. He said: "I have concluded...that the only way to reconcile them is to treat outlays in cases that settle "before proof is allowed" differently from outlays in cases that settle "after proof has been allowed". In the former situation reports are deemed to be obtained for the purpose of advising the client and adjusting the pleadings (and so fall under General Regulation 6 of the 1993 Act); in the latter situation, reports are deemed to be obtained with a view to calling witnesses to give evidence (and so fall under Paragraph 1 of the 1992 Act). I have concluded that the former are within the discretion of the Auditor, while the latter are governed by the direction of the Court". That view appears to me to be in line with the decision of Sheriff Higgins in the case of Hamilton. In Hamilton, proof had been allowed, but the relevant reports had been obtained prior to the closing of the record.

7. The solicitor for the pursuer and appellant sought to persuade me that this position was wrong, and that I should apply what might be regarded as a general rule, exemplified by the case of Clark v Laddaws, to the effect that the cost of employing skilled witnesses should not be allowed unless they are certified in appropriate terms by the Court. I have come to the conclusion, with no great difficulty that this contention falls to be rejected. I agree with the conclusion reached by Sheriff Higgins for the reasons given by him, and for other reasons. It appears to me that a distinction falls to be drawn between the rules which fall to be applied in the Sheriff Court and those which apply in the Court of Session, although in general terms the result is the same. Properly understood, I do not consider that the case of Clark v Laddaws applies to the circumstances of this case.

8. As the solicitor for the defenders and respondents pointed out, if the contention that the cost of employing skilled witnesses is irrecoverable without certification, as the pursuer's agent seemed to suggest, it is very difficult to find any content at all for the provisions of Regulation 6. In point of fact it is not a matter of great difficulty to reconcile the two provisions. As Sheriff Higgins pointed out in Hamilton, the 1992 Act of Sederunt is headed "Fees of Witnesses and Shorthand Writers in the Sheriff Courts" and provides that it "shall have effect to regulate the fees, charges and outlays incurred by a witness in civil proceedings in the sheriff court". The Sheriff said that looking at the Act of Sederunt as a whole it was intended to "relate to persons actually attending to give evidence; in other words, witnesses". He then went on to contrast Paragraph 6 of the 1993 Regulations, holding that these were applicable to the earlier stages of proceedings. Provided that the work carried out met the test of relevance and necessity for proof of the matters in the record between the parties, the costs were recoverable. This was a matter for the discretion of the Auditor, and did not require intervention on the part of the court.

9. That position appears to me to be broadly comparable to the situation in the Court of Session, the only difference being that there is no equivalent provision to Regulation 6, the allowance of the costs of employing experts before they fall into the category of "witnesses" being regulated by practice. The Auditor in this case has explained the position by reference to the case of Carol Parratt v Ceiling Décor Limited and Others 1988 SCLR 556. That was a case in which the defenders were found liable to the pursuer in expenses of an amendment following a discharged diet of debate. The account was remitted for taxation. The pursuer sought to have an engineer remunerated as an expert witness but the Auditor of Court declined to do so, taking the view that he could not do so without certification. On a Note of Objections Lord McLean held that it was incompetent to grant certification at that stage of the proceedings. He held that Rule of Court 42.1(3) was concerned with witnesses. He said: "Contrast that with the stage which has been reached in this case. No proof has been allowed, nor have issues been approved...(the expert) may well be and very probably is a skilled person, but he may never be a witness in the case. What appears to have done is provide specialist advice. So, what it seems to me the Auditor of Court must now do is to determine whether it was necessary for the pursuer, in order to answer the Minute of Amendment for the defenders, to obtain such advice and, if so, whether the charge for that advice is fair and reasonable. In that determination the Court has no part to play". For the Sheriff Court such a situation would be covered by the terms of Regulation 6; in either court it is a matter for the discretion of the Auditor.

10. The report of the decision in Clark v Laddaws sets out simply that the pursuer's account of expenses "included charges in respect of the services of three skilled witnesses". The case settled three days before proof. It is not clear at what stage of the proceedings these "services" were obtained. Be that as it may, the argument presented to the court centred solely on the interpretation of Note 9 annexed to Rule 347 of The Rules of Court 1965, the predecessor of the current Rule 42.13. In other words the question of whether the individuals concerned fell into the category of "witnesses" may not have arisen, and there was certainly no discussion as to whether, if they were consulted early enough, the obtaining of their advice was a fair and reasonable charge to be determined by the Auditor outwith the ambit of Note 9 as outlined by Lord McLean in Parratt.

11. In that situation, I consider that the decision in Clark v Laddaws does no more than support the view that witness charges are only recoverable if certification by the court is granted. That view, with the opinion expressed in paragraph 7, is sufficient for disposal of this appeal, which falls to be refused.

12. I should however, add that in my respectful view the statement on this subject in paragraph 19.64 of the 3^rd edition of Macphail Sheriff Court Practice, is not wholly accurate and indeed in one respect may be misleading. It is in the following terms: "If a skilled person prepares a report in order to enable a party properly to prepare his case and the action does not thereafter proceed to proof, certification of the person as a skilled witness is not appropriate; indeed it is incompetent". It would be more accurate, in my view, to say that if a skilled person prepares a report in order to enable a party to properly prepare his case and that such a person does not fall to be regarded as a "witness" either because the action does not proceed to proof or for some other reason, certification of the person as a skilled witness is not essential. Certification will, however, be essential where a party seeks to recover the charges of a skilled witness even if the case does not proceed to proof. It would not, in my opinion, be incompetent to seek such certification.