Scottish Court of Session Decisions

This case came before me on the motion roll today, Wednesday 17 January 2001. The motion was to take certain steps which were unopposed but also invited the court to certify two witnesses under Rule of Court 42.13 in order to enable the Auditor to fix an additional fee in respect of these witnesses. The condition in the rule which has to be applied is that it was necessary to employ the skilled person to make investigations in order to qualify him to give evidence in the prospective proof. The proof was set down for November and the case was settled by joint minute a few days before the proof was due to start. The first of the witnesses I have already dealt with and decided that it was not necessary to employ him as an expert in order to give evidence to the court about the dangers of operating an unguarded machine that should have been guarded according to the provisions of the appropriate legislation. The second witness whom the pursuer sought to have certified as an expert for the purposes of the rule was one Keith Carter, who has produced two Reports. Keith Carter is a person employed as an employment consultant with a firm based in London. The opposition was essentially based upon the view that the evidence of Mr Carter was quite unnecessary having regard to the relative simplicity of the loss claim, the detailed information recoverable and actually recovered from the defenders and to the terms of the Record; but also a considerable time was spent by counsel for the defenders examining the detail of the Report by Mr Carter and his Supplementary Report in order to illustrate that it was to some extent stating the obvious but was of very little assistance to the court.

The sum sued for in the case appears to have remained at £75,000 since the start and I have to presume that the case was settled for a lesser sum. Although the matter is not entirely free from difficulty, I have come to be of the view that it is not appropriate to certify Mr Carter in terms of the rule, for the reasons that have been advanced. This is a straightforward case and, having regard to the terms of the pursuer's averments, the task of assessing the prejudice to earning capacity is one that the court would be well able to deal with without the expert assistance offered by Mr Carter. Accordingly it appears to me that the test of necessity has not been met in respect of this witness either. I shall therefore refuse the motion in respect of each witness named in the motion.

There is one other matter, however. This case was on the motion roll and had to be heard by me before the fifth day of a continued proof to which witnesses were cited. Intimation was given to the court that the motion would last for ten minutes. After some thirty one minutes of submissions I interrupted the proceedings and went ahead with the proof. The rest of the motion was heard at lunch-time; the continued hearing began at 12.58 p.m. and continued for another sixteen minutes. Much of the time was taken up by the detailed analysis of Mr Carter's Report. Accordingly the total time was forty seven minutes; even that had been shortened by the fact that I did not call upon the defenders to respond in relation to the first of the two witnesses named. It is utterly deplorable that agents should come to the court with a motion marked for ten minutes when in fact it lasts for more than three-quarters of an hour. This is something that agents must take on board and in future must avoid it. I myself will make it clear that I shall simply interrupt the hearing of any motions after ten minutes unless due notice has been given. The purpose of giving appropriate notice is partly at least to allow the Keeper of the Rolls to allocate the motions to judges who are not engaged in hearing evidence and therefore to minimise the risk of inconvenience to the court and to the witnesses.