Pursuer: Pilkington; Anderson Partnership

Defender: Thomson, Solicitor Advocate, Brechin Tindal Oatts

14 March 2007

[1] This is a personal damages action arising from a motor accident. On 3 November 2006 the pursuer applied by motion for leave to lodge a late list of witnesses and a late inventory of productions. The motion was opposed. The grounds for opposition were the imminence of the proof and the likely prejudice to the defenders by the late introduction of such evidence. The list of witnesses and the inventory of documents ought to have been lodged by 19 September. Having heard argument I allowed the motion in part. I gave reasons at the time. Of relevance to the present issue is the fact that I allowed the new list of witnesses under deletion of two experts, a Mr Davies and a Mr Pollock, and I allowed a Mr Potts to remain on the list on terms that his evidence was restricted to an explanation of the hospital records relating to the treatment of the pursuer. At the same time I allowed the inventory of documents to be lodged under deletion of the expert reports relating to these witnesses. In the course of the hearing there was some discussion about the likely scope of the evidence to be given by a Dr. Nuttall in respect of whom the pursuer did not seek to lodge a report, at the end of which the pursuer's counsel moved to delete his name from the pursuer's list of witnesses.

[2] The action subsequently settled before proof by a joint minute. On 14 March 2007 I heard a motion by the pursuer in two parts. The first part was for the court to interpone authority to the joint minute, to assoilzie the defender from the conclusions of the summons and to find the defender liable to the pursuer in the expenses of process. That part of the motion was uncontroversial and I granted it. The second part of the motion was for certification of certain individuals as skilled witnesses for the pursuer in terms of Rule of Court 42.13. There was no dispute about one of these witnesses and I granted the motion in respect of him. However, the motion also sought certification for Messrs Davies, Pollock and Potts. This part of the motion was opposed. At the beginning of the hearing, the pursuer moved to amend the motion to seek certification also for Dr Nuttall. This also was opposed. After hearing argument I refused both the motion to amend and the part of the motion seeking certification of those three individuals. I gave brief reasons at the time. I was then asked to write on the matter, since it was said that it raised interesting and novel issues of construction of the newly amended Rule 42.13. Although it seemed to me that the circumstances were one-off and my decision unlikely to set any kind of precedent, I agreed to do so. These, in brief, are my reasons.

[3] My decision to refuse leave to amend the motion to include Dr Nuttall was based on two factors. First, no good reason was advanced for not having included Dr Nuttall in the motion originally. Second, Ms Thomson, for the defender, had only been given notice of the intention to make the application just before coming into court. She had not been present at the hearing on 3 November 2006 and would have needed to obtain information from the person who had been present. It would have been unfair to expect her to deal with the question of certification of Dr Nuttall without proper notice. I do not consider that this part of my decision raises any issue of principle.

[4] Rule 42.13 has been the subject of considerable discussion over the years. It has been amended from time to time. It is presently in the following terms.

"42.13.-(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 was 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) Subject to paragraph (3)(a) in the case of a skilled witness and paragraph (3)(b) in the case of a professional witness, in any cause in which evidence has been given by affidavit, charges shall be allowed to the deponent in terms of paragraph (2) of this rule or of paragraph (2)(a)(iii) of Chapter II of the Table of Fees as the case may be.

(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.

(4) Where a motion under paragraph (3) is enrolled after the court has awarded expenses, the expenses of the motion shall be borne by the party enrolling it."

The most recent amendments were to para.(2). They came into force with effect from 1 July 2006.

[5] The main changes from the previous Rule are described in the following passages from the annotations to the Rule in the Parliament House Book.

"The former r.42.13(2) was that it had to be (a) "necessary" to employ a skilled person, (b) to make investigations, (c) in order to qualify him to give evidence, (d) in a prospective proof or jury trial. The court had to be satisfied that the skilled person was necessary and that special investigations or preparations had been carried out.

...

The new provision ... is the latest attempt to clarify and widen the provision. ... The provision is r.42.13(2) now is that it only has to be (a) "reasonable" to employ a skilled person, (b) to make investigations or to report. Thus (i) "reasonable" is substituted for "necessary", (ii) reports are covered as well as investigations, (iii) it is no longer necessary that the investigations or reports have to be carried out in order to qualify the skilled person to give evidence, and (iv) a proof or jury trial does not have to have been allowed or even be in prospect. The provision is, therefore, much wider that the previous provision."

The annotators add, under reference to Allison v. Chief Constable, Strathclyde Police 2004 SC 453, that the point under the previous Rule at which to test the necessity of instructing an expert witness was at the time of his being instructed; and they suggest that this should also be the point by reference to which to determine whether it was reasonable to employ a skilled person.

[6] Mr Pilkington for the pursuer submitted that it was reasonable to instruct these experts. He accepted that they were instructed well after the last date for lodging lists of witnesses and their reports were produced even later. But he had two main points. The first was that it did not matter that they could not be called as expert witnesses. The question of reasonableness had to be assessed at the time they were instructed, not by reference to the court's subsequent refusal to allow them to be added to the list of witnesses. In any event, and this was his second point, it was enough that their reports and investigations were of assistance, as they were, in discussions which had led to settlement.

[7] Ms Thomson emphasised that the Rule was concerned with certification of witnesses: under para.(3), for example, the court was required to certify "that the witness was a skilled witness". She referred to Parratt v. Ceiling Décor Limited 1998 SC 179 as illustrative of this point, albeit a decision under the old Rule and addressing a different problem. Whatever changes had been made to the Rule to allow greater flexibility, the court could still not certify a person as a skilled witness when it had refused to allow that person to be a witness at all. Further, in considering the question of whether it was reasonable to employ the person as a skilled witness, the court should take into account all the circumstances of the case, including the dilatory conduct which had led to the experts being instructed at such a late stage that it was by no means certain that the court would allow them to be added to the list of witnesses or their reports to be lodged.

[8] I considered that Ms Thomson's submissions were broadly correct. This case is not the appropriate vehicle for a thorough analysis of the new Rule. There are difficulties in its construction and application which will require to be addressed at some point. Despite the changes to the Rule, I fail to see how it can be right to certify as a skilled witness someone who the court had refused to allow to be added to the list of witnesses. It seems to me that this situation is very different from that which arises every day where an expert is instructed but not called, because the action settles before proof or because in the course of the proof the need to call him disappears. Further, it seems to me impossible to view the reasonableness of instructing an expert as an abstract concept unrelated to the surrounding circumstances which might mean that leave to call that expert may be refused. I do not agree that reasonableness is unrelated to whether the expert is or is not intended to be a witness. It is not enough that it was reasonable to instruct an expert to advise counsel, or assist in settlement negotiations. The test is whether it was reasonable to instruct that person for the purpose of him being an expert witness. Here the delays in instructing the experts and in the obtaining of their reports were such that, on 3 November 2006, I took the view that it would be wrong to allow them to be called. That ought to have been foreseeable at the time the experts were instructed. In those circumstances I consider that the court is entitled to regard the instruction of the experts as unreasonable in the context of Rule 42.13 and refuse certification.

[9] As I indicated at the time, I would have refused to certify Dr Nuttall for these reasons also even if I had allowed the motion to be amended.