Scottish Court of Session Decisions

Delaney v. Finlay Park (t/a Park Hutchison) [2002] ScotCS 267 (27 September 2002)

OUTER HOUSE, COURT OF SESSION
A1556/02	OPINION OF T G COUTTS, QC Sitting as a Temporary Judge in the cause JOHN DELANEY Pursuer; against FINLAY PARK TRADING AS PARK HUTCHISON Defenders:   ________________

 

Pursuers: Stevenson, Solicitor Advocate; Thompsons

Defenders: Campbell; Brechin Tindal Oatts

27 September 2002

1. This action was based on professional negligence arising from alleged failure on the part of solicitors to pursue a case based on vibration white finger. Part of the material made available to the pursuer from the defenders was an expert report from Mr D Byrne, a skilled witness, who was a vascular surgeon, which the defenders had obtained and paid for.
2. The claim of the pursuer was settled in terms of a Minute of Tender and Acceptance. In the motion for the pursuer for decree in respect of that matter it was said,

"and further to certify Mr D Byrne, F.R.C.S., Strathclyde Medical Assessment Services, 208 West George Street, Glasgow as a necessary expert medical witness for the pursuer who examined the pursuer and reported."

3. Mr Stevenson, the solicitor advocate who appeared for the pursuer clearly set out the circumstances relating to the motion being brought before the Court. He disclaimed any intention of seeking payment twice for an expert report which had already been paid for but indicated to the Court that the reason for his motion was that the pursuer's agents sought to obtain the benefit of Note 2(2), paragraph 5, of Part 5 of Rule 42.16.
4. That Note states: "Where a skilled witness prepares his own precognition or report, the solicitor shall be allowed for perusing it half of the taking and drawing fee per sheet." Mr Stevenson said that the auditor would not regard any witness as skilled unless the Court so certified and accordingly he could not obtain the appropriate fee for perusal of Mr Byrne's report when it came into his hands.
5. Mr Campbell for the defenders said that the fee would be allowed for under Part 5 1(a) being work before the action commenced.
6. Mr Campbell's point I consider to be a matter for the auditor but having regard to the terms of Rule 43.13.2 I regarded it as plain that to obtain certification under that rule it is a prerequisite that the pursuer employ, and that it was necessary for the pursuer to employ, a skilled person to make investigations. The Court has to certify under 42.13.3 that the witness was a skilled witness who made investigations, attended or gave evidence at the proof or jury trial.
7. It is in my view plain that it would not be competent for me to certify in the present circumstances Mr Byrne as a skilled witness in terms of Rule 42.13. He was not employed by the pursuer in relation to this particular action. His fee in any event has been paid. He made no investigations for giving evidence in the proof in the professional negligence action which is what this case is about.
8. I wish to add that I cannot see why the reference in the said Note to a skilled witness in the Table of Fees requires certification by the Court even if it were competent so to do. It appears to me that the auditor will require to have regard to the witness in determining whether the Note can be applied but that where, as here, it would be obvious that this was a report from a skilled witness, the Note might well be considered appropriate to apply. That however is a matter for the auditor. I do not see that it is justifiable for him to demand certification from the Court as a prerequisite for that matter if that be the case because such certification cannot in my view be given standing the rules. Like so many other matters, this is one in which the auditor requires to use his own discretion but he ought not to consider that that discretion is fettered by any requirement for certification by the Court in relation to said Note 2.