Scottish Sheriff Court Decisions

1. This is a reparation action which, I was informed, parties had agreed to settle at the sum of £1,500. Following that agreement the pursuer's agents lodged a motion seeking to have Dr Ross M F MacDonald certified as an expert witness. The sheriff's decision to grant that motion is the subject of this appeal. I was informed that certain of Dr MacDonald's charges, if allowed and on the assumption that he was so certified, would far exceed the value of the claim. On that basis this can be regarded as one of those exceptional cases where expenses of the cause are potentially a great deal more valuable than the cause itself.

2. The circumstances giving rise to the disputed motion are somewhat unusual. The pursuer was involved in a road traffic accident on 17 December 2002. It appears that he had an appointment to attend at Dr MacDonald's clinic on that date as part of a continuing investigation of symptoms of neck pain and back ache for which he had originally presented on 13 April 2001. Dr MacDonald examined the pursuer on 17 December 2002 and made a record of his findings. He continued to see the pursuer regularly thereafter in accordance with an arrangement which had been made after the original consultation. One of the attendances took place on 20 August 2003. After that Dr MacDonald, at the request of the pursuer's solicitors, prepared a report a copy of which was produced with the initial writ which was served on 18 December 2003.

3. In granting the motion for certification the sheriff observed that such investigations as were carried out by Dr MacDonald were "by definition investigations prior to a proof". He said: "It is true he would know about the pursuer's pre-accident condition but he was specifically examining the pursuer after the accident. He noted what he considered to be symptoms attributable to the accident. He was in my opinion a treating specialist who carried out investigations into what particularly resulted from the accident".

4. The solicitor for the defenders and appellants commenced her submissions by drawing attention to the precise terms of paragraph 1 of the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 (SI 1992 No 1878) upon which the motion for certification was based. The grant of such a motion was appropriate in terms of that paragraph "where it is necessary to employ a skilled person to make investigations in order to qualify that person to report and/or give evidence in any action". The solicitor went on to refer to certain cases in which the question of certification had arisen, namely Ferguson v Johnston 1886 13R 636; Lacey v Russell 1966 SLT ShCt 76 and Earl v Kvaerner Energy Limited 2002 SLT 1167. She drew particular attention to the unreported opinion of Lord Cullen in William Nimmo & Company Limited v Russell Construction Limited (20 June 1995) in which his Lordship stressed the need for witnesses, in respect of whom certification was sought, to have undertaken an investigation to qualify them to give evidence.

5. In its final analysis it appeared to me that the submission on behalf of the pursuer approached the matter from two angles. First, it was contended that the sheriff had applied the wrong test. It was not sufficient to certify a witness as skilled for the purposes of para 1 of the Act of Sederunt merely on the basis that the witness had carried out an investigation prior to proof. There had to be a particular or specific investigation made necessary by the litigation. Second, when one examined Dr MacDonald's notes it was apparent that his report simply narrated what he had found in the course of his treatment of the pursuer, to a significant extent that being at a stage when there was no claim let alone the prospect of a proof. The fact that in a concluding part of his report Dr MacDonald had expressed a view on prognosis did not alter the situation. That view did not in itself arise from any particular investigations, but from the ongoing treatment.

6. In response the solicitor for the pursuer and respondent drew attention to an important distinction between the provision for the Sheriff Court contained in paragraph 1 of schedule 1 of the 1992 Act of Sederunt, and rule 42 12(2) of the Rules of the Court of Session 1994. The latter makes reference to the necessity to employ a skilled person "to make investigations in order to qualify him to give evidence in a prospective proof or jury trial" whereas the former speaks of qualification to report. Bearing in mind this distinction the pursuer's agent accepted the significance of the requirement that the witness should make investigations in order to qualify for certification but emphasised that it was sufficient if such investigations were for the purpose of preparing a report. In the present instance it was open to argument that as Dr MacDonald, had relied on an investigation carried out a week earlier, when preparing his report of 27 August 2003 he had ""investigated" for that purpose. Moreover the review of the pursuer's medical history which Dr MacDonald had of necessity required to carry out to enable him to report could also be said to fall within the category of "investigations". Finally, candidly and I believe properly, the pursuer's solicitor accepted that the matter did not fall to be regarded as depending on an exercise of the sheriff's discretion. The question was one of whether the witness properly fell within the qualification of paragraph 1 or not.

7. In my view this appeal raises a point of general practical importance. I consider that the purpose of the provision relating to the certification of skilled witnesses is to provide for the remuneration of experts who are instructed for the purposes of the litigation and who are in consequence entitled to be paid for the tasks specifically arising out of that engagement. The opening words of paragraph one of the Act of Sederunt are of importance since they point to the necessity of employing a skilled person to make investigation. It is not in my judgment sufficient that party has relied on a skilled person who made investigations; that individual must have been specifically employed in a situation where investigations were necessary. Nor is it sufficient that the investigations were carried out prior to the proof. The witness must have been specifically employed to investigate. It does not appear to me that this could be said of Dr MacDonald. What he did was to a large extent no different than what is done by a general practitioner in many personal injury cases, namely supply a report based on his record of treatment of the pursuer. As in this case such treatment will often have both pre-dated and post-dated the accident. The offering of a prognosis does not in my view change the nature of the basis on which the witness has been employed such as to bring him within the meaning of the rule. It does not seem to me that this approach is inconsistent with the view taken by Lord Cullen in the case of William Nimmo and Company Limited where certification was granted to an accountant who, whatever his original status, had carried out an examination of accounts and had prepared additional calculations in the capacity of "expert witness in aid of the pursuer's claim".

8. For these reasons I am satisfied that this was not a situation in which certification of Dr MacDonald should have been granted. I shall accordingly allow the appeal and recall the interlocutor of 5 November 2004 to the appropriate extent. As the hearing on that date dealt with another matter I shall find no expenses due to or by either party in respect of that hearing but find the pursuer liable to the defenders in the expenses occasioned by the appeal.