Scottish Court of Session Decisions

Pursuer:  McKenzie;  Balfour + Manson LLP (for Austin Lafferty Limited, Hamilton)

Defender:  Bain QC;  McClure Naismith LLP

10 June 2014

[1]        This case, a personal injury action, called before me following extra-judicial settlement in respect of the pursuer’s motion for the expenses of the cause and the certification of five skilled witnesses.

[2]        This motion was opposed in two respects

1. The certification of two of the skilled witnesses instructed by the pursuer, namely Mr Peter Scott, consultantorthopaedic surgeon and Dr Ian Yellowlees, consultant in pain management.
2. The award of expenses for the amendment procedure following upon a Minute of Amendment by the defenders.

The other skilled witnesses instructed by the pursuer included Mr J S Moir consultant orthopaedic surgeon, Professor Freeman consultant psychiatrist and Mr Peter Davies employment consultant. 

Certification

[3]        It was common ground that under Rule of Court 42.13A(2) the disputed witnesses were skilled, that the test of whether their instruction was reasonable was the issue here and that the dicta in Allison v Orr 2004 SC 453 at paragraph [38] applied.

[4]        The relevant background here was that liability was conceded.  At an early stage Mr Moir had been instructed by the defenders with the agreement of the pursuer and he produced two reports on 30 March 2012 and 24 May 2012.  The pursuer obtained a further report in April 2013.

[5]        The main basis of opposition to certification of the two witnesses was that their instruction was unnecessary and their opinions duplicated work which had already been done.  In particular it was submitted the pursuer relied upon the report by Mr Moir throughout.  This was evidenced by the terms of the statement of valuation lodged which showed the material relied upon came from Mr Moir’s report.  In addition the terms of the employment consultant’s report and valuation of wage loss were based upon the terms of Mr Moir’s reports.  No reliance appeared to have been placed upon the report from the second orthopaedic surgeon Mr Scott.  In addition the terms of Mr Moir’s report covered the issue of the claim of chronic pain syndrome and the instruction of Dr Yellowlees was duplication.  Accordingly the context was that the pursuer had support for his claim from the existing experts.  Further and in any event these additional experts were instructed on the basis of the pursuer’s account of his injuries.  Re-evaluation and a change of position leading to settlement in this case arose after the pursuer received the surveillance footage obtained by the defenders which contradicted the pursuer’s account.  This itself suggested the instruction of the challenged experts was unreasonable.

Decision on Certification

[6]        I am not persuaded that the on-going reliance upon Mr Moir and his ultimate instruction as a witness by the pursuer, renders the instruction of a second orthopaedic surgeon here unreasonable.  The instruction of a further expert who had not been obtained by the defenders is understandable, not least when the defenders had subsequently instructed their own additional expert.  The fact that Mr Moir was relied upon in compiling the statement of claim does not mean a second expert opinion should not be obtained for the different and broader purpose of preparation for proof.  The fact that Mr Moir in the end was considered the best witness  to use, does not bear upon the reasonableness of the instruction of Mr Scott’s opinion at the time it was made.  In view of the fact the defenders had obtained their own expert on the issue of the pursuer’s claim related to pain syndrome signifies in my view the reasonableness of the pursuer doing the same.  This is a difficult area and I see nothing unreasonable in the pursuer deciding not to simply rely upon Mr Moir, but to instruct a true specialist.

[7]        Finally I do not consider the fact that the defenders obtained evidence to contradict the pursuer’s account is relevant.  The purser’s agents act on his instructions and in the event all of the experts supported the credibility of same, notwithstanding the CCTV footage.

Amendment Procedure

[8]        I do not consider that the additional averments introduced by the pursuer in responding to the defenders’ Minute of Amendment are a sufficient basis to depart from their inclusion in the award of the expenses of the cause.  It may be there would be an arguable point on the facts here regarding the sharing expenses - if it had been made within the process at the time.  That is different to justifying a departure from the overall award of expenses which is what is required at this stage.

[9]        Accordingly I shall award the expenses of the cause without qualification and I will certify the five experts listed by the pursuer as skilled witnesses as moved for.  Quoad ultra I assoilzie the defenders from the conclusion of the summons.  And I shall remit the account to the Auditor of Court.