Scottish Court of Session Decisions

[1] I refer to my Opinion and Interlocutor dated 14 February in the proof on these claims. Several motions on consequential matters are now before the court. They relate to the present claims and to the actions of payment that gave rise to them.

[2] In the Interlocutor, adopting words proposed by counsel for IOPCF and Messrs Robb, I determined that in the limitation action no liability had been incurred by either "the first or second named defenders." All parties now agree that that was a slip. The appropriate words should have been "The Braer Corporation or the pursuer." Huxter Salmon Limited has enrolled to have the Interlocutor altered accordingly. The motion is unopposed. I shall grant it. I shall also have a passage in the last page of the Opinion altered to the same effect.

The motion for Miss Sheila Fowlie

[3] Counsel for Miss Fowlie has moved for the expenses of the motion made on behalf of Huxter Salmon Limited on 23 June 1999, during the course of the proof, to allow an inventory of productions to be received late. That motion raised a fundamental objection to the claim. After a debate on the matter, I refused the motion for the reasons set out in my Opinion of 24 June 1999 and I reserved the question of expenses. I am satisfied that Miss Fowlie is entitled to the expenses of that procedure against Huxter Salmon Limited. I shall grant the motion.

The motions for the objectors

[4] Huxter Salmon and IOPCF have enrolled for the expenses of the claim proceedings in respect that these claims have failed completely. These motions have been opposed.

[5] Having heard counsel on the matter, I consider that IOPCF is entitled in principle to its expenses on the straightforward basis that expenses should follow success.

[6] Counsel for the claimants submitted that expenses should not be awarded to Huxter Salmon Limited. He argued that Huxter contributed nothing of any materiality to the proof beyond the evidence and submissions made on behalf of IOPCF and Messrs Robb.

[7] I agree that the cases advanced on behalf of the objectors were similar. They had the same lists of witnesses. Huxter Salmon led no evidence. Its counsel were content with the evidence that had already been led on behalf of IOPCF and Messrs Robb.

[8] But these are not conclusive considerations. These objectors were entitled to compear at the proof and to conduct their own objections with separate representation. It is not the case that they merely presented an identical front with four counsel rather than two. Separate representation led, for example, to Huxter Salmon's taking a successful point that IOPCF and Messrs Robb did not take, namely that the claim by Mr and Mrs Johnston, so far as it related to Mrs Johnston's pro indiviso interest in the house, had prescribed. The closing submissions for Huxter Salmon differed significantly, on both fact and law, from those advanced on behalf of IOPCF and Messrs Robb. For these reasons I consider that it would be wrong in principle to refuse Huxter's motion for expenses.

[9] Nevertheless the Auditor will be entitled at the taxation to take into account the whole conduct of the objections. The preparation of the objectors' cases seems to have been a co-operative exercise in which resources and efforts were pooled. If that is the case, the Auditor will no doubt reflect that in his award.

[10] The court retains an overall discretion to make an award of expenses in such terms as it considers just and reasonable in the circumstances of the case. I have commented on certain aspects of the factual evidence led at the proof from the witnesses Mr Peter Walton and Mr Alun Lewis. I agree with counsel for the claimants that certain parts of the evidence of those witnesses were of little or no value to the court and that they prolonged the proof to a material degree. That evidence is linked to preparation because those parts of the evidence were based on work done by the witnesses before the proof; for example, the inspections on which Mr Walton based his second Report. I think that the just solution in this case is to abate the objector's overall entitlement to expenses on a percentage basis. It is impossible to be precise in these matters. In my view a reasonable yardstick in this case is an assessment of how much of the time of the proof was taken up by that evidence. My best estimate of that is 15%. I shall abate the award of expenses accordingly.

[11] Messrs Robb's objections have also succeeded. They have not moved for expenses today. Questions arising as to their entitlement to expenses, if any, can be dealt with if and when they enrol in suitable terms.

[12] Counsel for Miss Fowlie has moved that expenses should be awarded against her as an assisted person. I shall grant that motion only in part. Miss Fowlie became legally aided during the course of the proof. The effective date of her certificate was 1 July 1999. I shall award expenses against her simpliciter up to 30 June 1999 and against her as an assisted person from 1 July 1999 to date.

[13] Counsel for Miss Fowlie has also moved for modification of Miss Fowlie's liability in expenses as an assisted person. Since her legal aid certificate covered only the final stages of this case and since in my judgment it would not be cost-effective to initiate a detailed enquiry into her means, I propose to take a practical approach in order to bring this matter to a conclusion. I understand that Miss Fowlie's legal aid contribution was assessed at nil. That gives me a reasonably accurate idea of her means. I shall modify her liability to nil.

Liability of Christopher Anderson

[14] In awarding expenses against the claimants I make no differentiation in respect of the claim of Mr Anderson who was represented by counsel at the proof but in relation to whose claim no evidence was led. That circumstance cannot in my view exempt Mr Anderson from any liability in expenses that he would otherwise have incurred.

[15] The objectors have also enrolled for certification of Mr Walton, Mr Lewis and Mr Andrew MacFarlane as expert witnesses. I have discussed the evidence of each of these witnesses in my Opinion of 14 February.

[16] I accept that Mr Walton was an expert, and is entitled to certification as such, in relation to the matters dealt with in his first Report, that is to say the scientific questions as to the properties of cement and cement compounds and the possibility that the claimants' roofs could have been damaged by dispersant in the manner alleged by them. But Mr Walton also gave factual evidence about the condition of these and other asbestos cement roofs. Inadequate though it was, that evidence was nonetheless, in my judgment, just within the ambit of his expertise. I shall therefore certify him as an expert witness simpliciter.

[17] Mr Lewis was an expert on oil spill dispersion and on the chemistry relating to the action of surfactants on oil and water. He spoke to these matters and in respect of that evidence he is entitled to be certified as an expert witness. He also gave evidence as to the probable rate of deposition of dispersant on the roofs of these claimants and on other roofs in southern Shetland. I have commented in some detail on the inadequacies of that evidence in my Opinion of 14 February. In my view that evidence was clearly outwith Mr Lewis's range of expertise. I am not prepared to certify him as an expert in relation to it. I shall restrict my certification of Mr Lewis accordingly.

[18] Mr MacFarlane gave expert evidence on building costs and is entitled to be certified accordingly. He also spoke to the condition of certain roofs that he had inspected; but that evidence took up little time and was of no great significance. I need not consider whether he was an expert in relation to it. I shall disregard it, and shall certify Mr MacFarlane as an expert simpliciter.

General

[19] In these actions motions for absolvitor and expenses have been enrolled on behalf of The Braer Corporation and Skuld and on behalf of IOPCF. These motions were marked as opposed, but counsel for the pursuers in the actions has dropped his opposition at the bar. I shall therefore grant these motions to the extent of awarding expenses against the pursuer in each action so far as not dealt with by any prior interlocutor.

Miss Sheila Fowlie

[20] In the action brought by Miss Fowlie I shall grant expenses against her simpliciter up to and including 30 June 1999 and against her as an assisted person for the period from 1 July 1999 to date. This latter liability may be academic in this case since procedure in the payment actions was brought to a halt on 15 May 1999. For the reasons that I have given, I shall modify her liability as an assisted person to nil.