[2017] SC EDIN 36




In the cause












Pursuer:   Bennett;  Lindsays

Defender:   McGregor;  Anderson Strathern LLP


Edinburgh, 7 June 2017



[1]        This case came before me on the pursuer’s opposed motion, number 7/10 of process  for decree in terms of a joint minute; a finding that the defenders should meet the pursuer’s expenses; that the cause should be sanctioned as suitable for the employment of counsel; and for certification of four skilled witnesses, Dr Harper, a clinical psychologist; Dr McLennan, a consultant psychiatrist; Dr Carson, a consultant in neuropsychiatry and psychological medicine; and Mr Mathieson, a consultant neurosurgeon.

[2]        The motion was opposed only in respect of certification of Dr Carson as a skilled witness. 


Pursuer’s submissions

[3]        The question as to whether or not it was reasonable to instruct a skilled witness was to be judged at the point of instruction.

[4]        This was an action arising from a head on collision. The proof had been due to commence on 9 May this year and the case had settled on 5 April at the Pre-Trial Meeting.

[5]        The pursuer’s agents had been instructed shortly prior to expiry of the triennium. The pursuer herself had a significant and complex medical history. There was evidence of cognitive impairment and a review of the records suggested possible somatoform disorder and brain injury.

[6]        Dr Carson had been instructed in relation to the somatoform and psychiatric issues. Three other skilled witnesses were instructed for orthopaedic, psychiatric and psychological input.

[7]        Dr Carson is an eminent neuropsychiatrist and an expert on somatoform disorder.

[8]        There were possible issues of faculty disorder. The pursuer was reporting cognitive impairment and hearing loss.

[9]        Assessment of the pursuer was discussed with the psychologist, Dr Harper. She had said that Dr Carson was “a good fit” as the position was complex. The pursuer’s agent was reassured by that.

[10]      Dr Carson’s opinion was fundamental to the assessment of the case and the tendering of advice.

[11]      It was accepted that Dr Carson’s report was not lodged or exhibited to the defenders and that he was not on the list of witnesses. The reason for that was that the pursuer was unhappy with the terms of the report and thought that Dr Carson was complicit in a conspiracy against her. The pursuer had not agreed to the disclosure of the report.

[12]      In all the circumstances, it had been reasonable to instruct Dr Carson.

[13]      In response to the defenders’ submissions, hearing loss and loss of consciousness had been averred.


Defender’s submissions

[14]      Certification of Dr Carson was opposed. His involvement in the case had to be seen in the context of the other experts who were instructed. These included a psychiatrist who gave an opinion about somatoform disorder. The pursuer had a history of psychiatric problems and no new psychiatric disorder was identified as a result of the accident. Accordingly, the question arose as to why a report from Dr Carson was thought to be necessary. In relation to this case, both Dr McLennan and Dr Carson seemed to have pretty much the same expertise. There was no head injury in this case.

[15]      It was accepted that there was no obligation on the pursuer to disclose the report. But there was an overriding obligation of disclosure in this court and the terms of Dr Carson’s report were relevant to the issue of certification.

[16]      Certification should be refused.



The relevant Rule of Court

[17]      The position is regulated by the Schedule to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 (SSI 1992/1878), as amended by the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) (Amendment) 2011 (SSI 2011/403) [“the 1992 Act of Sederunt as amended”], the relevant part of which provides:

Skilled Persons

1.—(1) If, at any time before the diet of taxation, the sheriff has granted a motion for the certification of a person as skilled, charges shall be allowed for any work done or expenses reasonably incurred by that person which were reasonably required for a purpose in connection with the cause or in contemplation of the cause.

(2) A motion under paragraph (1) may be granted only if the sheriff is satisfied that—

(a) the person was a skilled person; and

(b) it was reasonable to employ the person….

(4) The charges which shall be allowed under paragraph (1) shall be such as the Auditor of Court determines are fair and reasonable…”.


[18]      Thus, it will be seen that in order to allow certification, the court must be satisfied about two things, namely (a) that the person instructed was “skilled” and (b) it was reasonable to employ the person.

[19]      There was no controversy about Dr Carson’s ‘status’ as a skilled person - the focus of the opposition being on whether it was reasonable for him to be instructed. That question should be asked and answered in relation to the point in time at which the skilled witness is instructed: Allison v Chief Constable, Strathclyde Police 2004 SC 453. The onus is on the party who instructed the skilled witness to satisfy the court that the instruction was reasonable.

[20]      Turning to the specifics of this case, it appears to me that the way to frame the issue is this: the onus is on the pursuer; Dr McLennan’s involvement suggests a possible duplication in expertise; that in turn gives rise to the question as to whether it was reasonable to go to Dr Carson for advice at the same time. Has the pursuer satisfactorily answered that question?

[21]      The two elements relied on were (i) the indication of possible somatoform condition in the medical records; and (ii) the need to instruct Dr Carson quickly because of the time it takes to get an appointment with him.

[22]      But I was told that Dr McLennan had advised on somatoform disorder in her report; and although I was provided with a copy of Dr Carson’s and the letter of instruction to him, I was not given access to his report; nor to the CV of, letter of instruction to or report of Dr McLennan.

[23]      While I am not in favour of too granular an approach when it comes to expenses, it does appear to me that it is relevant to ask: what particular aspect of the case was it that Dr Carson was asked to advise on which Dr McLennan could not? It may be that on a close analysis of the respective letters of instruction or reports prepared or both, the distinction between what they were each asked to advise on would become clear. But I was not afforded the opportunity to examine that material. Nor, would it appear, were the defenders.

[24]      Absent that material, I am left without a solid basis which enables me to say that there was some aspect of the case which Dr Carson alone could properly advise on.

[25]      The desire to instruct Dr Carson ‘early’ was understandable in the context of the demands for his services and the consequent delays in getting an appointment with him.  But given that the appointment with Dr Carson was not going to take place straightaway, that could have been provisionally arranged. If, for example, Dr McLennan had then reported that there was some aspect of the case on which she could not advise and recommended that an opinion be obtained from another expert such as Dr Carson, that would have put the pursuer in a strong position. Absent some explanation as to why it was appropriate to proceed with obtaining a report from him even after Dr McLennan’s  report was available takes us full circle back to the first issue identified above: what, specifically, was Dr Carson asked to advise on the Dr McLennan could not?  



[26]      In the circumstances, I am not persuaded that the pursuer has shown that the instruction of Dr Carson was reasonable. Accordingly, I shall refuse that part of the motion.

[27]      I observe that if the letters of instruction and the reports had been exhibited to the defenders, it is possible that they would have been persuaded to drop their opposition or some accommodation might have been reached. Naturally, I cannot say that would have happened, but absent disclosure of that material, they could hardly do otherwise than oppose this motion. In these circumstances, I shall find the pursuer liable to the defenders in the expenses occasioned by the opposed motion.



[28]      Although not arising in this case, I observe in passing that motions for certification of skilled witnesses often contain simply the name and designation of the witness and a brief description of the work which the witness carried out e.g. the preparation of a report with a view to giving evidence. It appears to me that that formulation may be a hangover from the rule pertaining to certification prior to its amendment in 2011. (Paragraph 42.13A.2 of the annotated Rules of the Court of Session, Parliament House Book, Vol. VIII contains a useful summary of the evolution of the equivalent rule in the Court of Session.)

[29]      Nevertheless, the position now is that the court must be satisfied about (i) the skill of the person in respect of whom certification is sought; and (ii) the reasonableness of instructing that person. In my opinion, motions for certification should be directed at those two issues. What work the witness carried out, be it preparing a report, examining a locus or whatever is not relevant to those points but is instead a matter for the auditor once certification has been granted: Paragraphs 1(1) and (4) of the Schedule to 1992 Act of Sederunt (as amended).