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Cite as: [2003] ScotCS 204

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Fyfe v. North Glasgow University Hospitals NHS Trust [2003] ScotCS 204 (04 July 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Macfadyen

Lord Carloway

A4065/01

OPINION OF THE COURT

delivered by LORD MARNOCH

in

RECLAIMING MOTION

by

SANDRA DUFF FYFE

Pursuer and Reclaimer;

against

NORTH GLASGOW UNIVERSITY HOSPITALS NHS TRUST

Defenders and Respondents;

_______

Act: Campbell, Q.C.; Thompsons

Alt: Springham; Brechin Tindal Oatts

4 July 2003

[1] This is a reclaiming motion against a refusal by the Temporary Judge to certify as an expert witness a care expert, Dr. Jennifer Caldwell, whose report is now lodged as No. 6/6 of process. The report was obtained before the Record was closed and before any allowance of proof. However, the case settled immediately or very soon after the closing of the Record. In his opinion on the matter the Temporary Judge gives two separate reasons for refusing certification. In the first place, he states that:

"There was nothing in Condescendence 6 [viz. the Condescendence anent the injuries sustained by the pursuer] which indicated the necessity of employing the witness at all let alone that any particular skill was required to be exercised".

In that connection the Temporary Judge had earlier commented:

"A precognition and reproduction of the costs charged by caring agencies and a narration of expenses is not a matter of skill and not a matter in which it is necessary to employ a 'skilled witness' in the normal case."

In the second place, the Temporary Judge refers to a decision of Lord MacLean in Parratt v Ceiling Décor Limited 1998 S.C. 179 and then goes on to say:

"I do consider that it is inappropriate to seek reports from this sort of witness at this stage in a case."

[2] With the assistance of the submissions made to this court (which, incidentally were considerably more detailed than those addressed to the Temporary Judge) we have reached the view that the Temporary Judge misdirected himself on each of these matters. As regards the necessity for a care expert, we are persuaded that this was indeed a case in which such an expert was, at some stage, to be required, and Miss Springham did not, in the end, submit otherwise. Furthermore, although at first blush her report looks deceptively like the combination of a precognition and a mathematical exercise we are in no doubt that it does reflect an application of the witness's expertise as to the nature and amount of care required by the pursuer. On the second point we observe that the decision of Lord MacLean in Parratt has been superseded by a change in the wording of the relevant Rule of Court and we are satisfied that the report in question was reasonably obtained at an early stage, with a view, inter alia, to reaching precisely the sort of settlement which in fact took place.

[3] In reaching the foregoing conclusions in the present case, we do not wish to be understood as encouraging the instruction at an early stage, or indeed at any stage, of witnesses who are not truly expert or who are unnecessary.

[4] In the present case, however, for the reasons given above we shall allow the reclaiming motion, recall the interlocutor of the Temporary Judge dated 12 July 2002 quo ad the refusal to certify Dr Caldwell as an expert witness; certify her as such; and quoad ultra adhere to the terms of that interlocutor.

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