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Cite as: [2003] ScotCS 172

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Snelling v. Thomson Alarm Communication System [2003] ScotCS 172 (12 June 2003)

OUTER HOUSE, COURT OF SESSION

A 3480/01

OPINION OF T G COUTTS QC

Sitting as a Temporary Judge

in the cause

PETER SNELLING

Pursuer;

against

THOMSON ALARM AND COMMUNICATION SYSTEM LIMITED

Defender:

________________

Act: Ivey QC, Thompsons

Alt: Springham, Brechin Tindal Oatts

12 June 2003

[1] By Joint Minute dated 30 April 2003 the pursuer settled this action in which he had sued for £100,000. The action had been set down for proof on 21 January 2003 and, I was informed, settlement was agreed that day.

[2] The Joint Minute purported to "agree" certification of two consultant orthopaedic surgeons as skilled witnesses. A motion was enrolled not only craving the Court to interpone authority to the Joint Minute, (No. 27 of process) but also to

certify a person described as a consulting actuary as a skilled witness in the cause. The defenders opposed such certification asserting that the actuary did not require to carry out any investigations in order to qualify him to give evidence at the proof.

[3] No report from the actuary was lodged in process although counsel for the pursuer informed me that a report had been prepared by 18 January 2003. Objection could have been taken to the lodging of the report, as being late in terms of the Rules of Court.

[4] Rule of Court, 42.13(2) reads:

"(2) Subject to paragraph (3), where it was necessary to employ a skilled person to make investigations in order to qualify him to give evidence in prospective proof or jury trial, charges for such investigations and (if there is a proof or jury trial) for any attendance at it, shall be allowed in addition to the ordinary witness fees of such person at such rate which the Auditor shall determine is fair and reasonable."

and

"(3) The Auditor may make no determination under paragraph (2) or (2A) unless the court has, on granting a motion made for the purpose, before or at the time which it awarded expenses or on a motion enrolled at any time thereafter but before the diet of taxation - (a) certified that the witness was a skilled witness; and (b) recorded the name of that witness in the interlocutor pronounced by the court."

[5] Accordingly the Court requires to be satisfied before certification that it was necessary to employ a skilled witness, that the actuary was a skilled witness, and that that person made investigations in order to qualify him to give evidence.

[6] The employment of an actuary was said to be necessary in order to establish the pursuer's pension loss. The only averments in the Closed Record relating to that matter are his age, his date of birth being 8 April 1944, and in Condescendence 4, that his employment was terminated on 20 February 2000 and;

"He has lost pension rights. He received a pension based on 25 years pensionable service. Had the said accident not occurred he would have reasonably have (sic) expected to continue working until 65. He has therefore lost ten years pensionable service. His pension would have been based on his final years pensionable salary. During the period until his 65^th birthday his wages, had he been able to work, would have risen at a rate above the rate of inflation".

[7] I was unable to determine what investigations the actuary had made since I did not have sight of any report by him. On the face of it, it would not appear that any investigations properly so called required to be made when one considers that an actuary deals with figures derived from tables. I am unable to determine and do not think it likely that there were any special investigations or preparations such as those adverted to in William Nimmo & Co Limited v Russell Construction Limited (No.2), OH 20 June 1995 (annotated notes when Rule at 42.13.2). It did not appear to me to be self evident that there was any particular necessity for an actuary to give an opinion upon what, if any, pension loss the pursuer had sustained as result of his having ceased work.

[8] The pursuer was not employed by the defenders. He has received a pension based on his 25 year service with his employers and the pension trustees for his employers would have provided calculation for that and in my view could also have provided any necessary information. An actuary could not determine what the pursuers final year's pensionable salary would have been or whether he would have worked until 65 years of age. I was not satisfied that this witness was necessary nor was I satisfied that he had made special investigations.

[9] The approach of counsel for the pursuer when moving the motion appeared to me to proceed on the basis that actuaries were always certified as skilled witnesses when there was a question of pension loss. That is not my own experience and in any event should not necessarily follow. Actuaries' fees for making reports of the simple kind which would have been made in the present case, had it been produced, would be totally incommensurate with the value of this claim. Employment of actuaries at the defenders' expense should not be encouraged in cases where the amount to be awarded could reasonably be ascertained by other means. The suggestion that in any case involving pension loss an actuary is a necessary witness is unsound.

[10] It is for the parties seeking certification to produce material to satisfy the court that the witness was necessary and that the witness had made special investigations. To show necessity something special to the cause or to the pursuer ought to be the norm. The position of an actuary contrasts markedly with that of the consultant orthopaedic surgeon who does require to make investigations by examining the pursuer. He cannot simply look up textbooks and expect to obtain some sort of answer. However, for the present motion no material other than the assertion that an actuary was necessary for his pension loss claim was before the Court and I refused certification in such circumstances.

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