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Cite as: [2003] ScotCS 224

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Allison v. Orr [2003] ScotCS 224 (30 July 2003)

OUTER HOUSE, COURT OF SESSION

A 2670/01

OPINION OF T G COUTTS Q.C.

Sitting as a Temporary Judge

in the cause

LISA MARGARET ALLISON

Pursuer;

against

SIR JOHN ORR

Defender:

________________

Pursuer: Dunlop; Balfour & Manson

Defenders: Shand; Simpson & Marwick

30 July 2003

[1] This action in which the pursuer sued for £100,000 was settled by way of joint minute. The joint minute which was lodged was stamped 8 July 2003. I was informed that settlement was agreed at one tenth of the sum sued for.

[2] The joint minute purported to agree certification of two persons as skilled witnesses. A motion was enrolled not only craving in the court to interpone authority to the joint minute no. 27 of Process but also to certify two persons as skilled witnesses. These were Eric Grant M.A. PhD, an employment consultant and David Carlyle BSc fellow of the institute of Actuaries. The defender opposed that part of the motion on the ground it was not necessary for either witness to be instructed in the case.

[3] A report by Dr Grant was lodged, 6/21, and a letter from Mr Carlyle, 6/22, 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 as 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."

Accordingly the Court required 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 investigation in order to qualify him to give evidence.

[4] The pursuer's averments in relation to employment were "she has suffered and will continue to suffer loss of wages and a loss of overtime. As a result of the physical and psychiatric consequences of the accident, the pursuer has suffered a loss of employability and a loss of prospects of promotion". In the letter 6/22 it is disclosed that Constable Allison is still employed by Strathclyde Police on a full time basis and that she had remained in the Strathclyde Pension Scheme and continued to a accrue pension entitlement by reference to full time employment. There was accordingly no loss of pension rights to the date of the joint minute nor was there any question of a loss of employment.

[5] Counsel for the pursuer accepted what I said in the opinion I had given in Snelling v Thompson Alarm and Communication System Ltd, 12 June 2003 and attempted to establish that it was necessary to employ the individuals concerned, who were skilled witnesses and that they had made investigations in order to qualify them to give evidence.

[6] Counsel for the defender stressed that Dr Grant could not be able to comment on loss of promotion prospects, that would require to be proved by some other person and spoken to by the pursuer and accordingly could add nothing to the pursuer's case in that regard and, in respect of loss of employment resulting in a differently paid job, the matter was entirely speculative. Dr Grant was unable to say whether the pursuer would in fact lose employment or opine about the prospects thereof. He had no expertise to apply in the matter of promotion. The same criticism applied to the report of the actuary . Indeed the actuary specifically, in his conclusion, indicated how he qualified his report, how many imponderables there were in it but then provided calculations, so far as he could, on the basis of either loss of promotion or loss of employment.

[7] The pursuer contended that both these witnesses provided expert input into the case albeit that they were only relevant if a loss of promotion or a loss of employability case was established, and insofar as the pension loss was concerned, since the situation was not straightforward, the employment of an expert was indicated and justified.

[8] Various opinions in order cases were canvassed in the course of the motion roll. Some judges had dealt with the matter after proof, in which case they were ideally placed to ascertain the expertise required, and its necessity, so I did not think that those provided any assistance. Those were opinions of Lord Mackay of Drumadoon, in Young v Scottish Coal Deep Mining Company Ltd, 3 July 2001; Lord Cullen in Nimmo v Russell Construction Ltd, 20 June 1995. Others, quoted were those of Lord Eassie, 19 June 2002 in Earl v Governer Energy Ltd 2002 SLT 1167 and Lord McCluskey in Ramsay v Timbmet Woyka Ltd 18 January 2001.

[9] Each of the cases required to be considered in the light of their particular circumstances. It is fair to say that the certification of what might be described as non medical experts has received different considerations from those of medical experts. Lord McCluskey stated that the material provided by the "expert" in a straightforward case in the light of the pursuer's averments was a task which the Court would be well able to deal with without the benefit of expert assistance. If that is so, the test of necessity is not met. In Earl v Kaverner Energy Ltd, 2002 SLT 1167 Lord Eassie dealt with the matter of "court investigation". That case again involved the same expertise Lord Eassie founded upon the absence of a report and there being no suggestion that Mr Carter had found it necessary to interview the pursuer after subjecting him to any tests of his intellectual or practical abilities.

[10] It should be noted that the opinion of my own in Snelling was drafted in response to a reclaiming motion which has not been heard and, further, an Extra Division considered the decision of mine in Fife v North Glasgow University Hospitals NHS Trust in which I had refused to certify a key expert. The opinion of the Court in that case was delivered while I had this case at avizandum but I am not of the view that Fife assists in any way. In allowing the reclaiming motion the Extra Division stated that they did not wish to be understood as encouraging the instruction at any stage, of witnesses who are not truly expert or are unnecessary.

[11] In the light of the particular circumstances of the present case, the pursuer's averments and the content of the reports provided I was not persuaded that either of these witnesses were necessary in this simple case of modest value. The basis of the opinions delivered in the reports by the experts all sprang from a speculative situation and it is a reasonable inference from the level of settlement that the considerations to which the experts were applying their minds played little if any part in the settlement. It cannot be said that this was indeed a case in which such experts were at some stage required. The Court is well able to fix a sum for a loss of employability and for such loss of pension rights as that might ensue therefrom without attempting the impossible which is an accurate quantification of either of these matters. Neither of these experts could do that. I refuse certification.