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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Todd v. Roman Catholic Diocese Of Dunkeld & Anor [2004] ScotSC 34 (10 May 2004)
URL: http://www.bailii.org/scot/cases/ScotSC/2004/34.html
Cite as: [2004] ScotSC 34
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SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

A165/01

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

EILEEN TODD

Pursuer and Appellant

against

THE ROMAN CATHOLIC DIOCESE of DUNKELD

First Defenders and Respondents

and

DUNDEE CITY COUNCIL

Second Defenders and Respondents

__________________

 

Act: Murray, Solicitor, Dundee

Alt: Macpherson, Solicitor, Edinburgh

 

DUNDEE, 10 May 2004. The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the sheriff's interlocutor of 9 October 2003 insofar as it refuses to certify Mr Pollock as an expert witness for the pursuer; quoad ultra adheres to the sheriff's said interlocutor; having heard parties' procurators of new on part 2 of the pursuer's motion no. 7/7 of process, grants same and certifies John Pollock, Consultant Actuary, as a skilled witness and suitable for additional remuneration; reserves meantime the question of the expenses of the appeal and appoints parties to be heard thereon on Friday, 21 May 2004 at
10 am within the Sheriff Court House, 6 West Bell Street, Dundee.

 

 

 

 

 

NOTE:

[1]      This appeal arises out of the sheriff's decision on the pursuer's amended motion (No 7/7 of Process) seeking certification of two witnesses as skilled witnesses. The witnesses in question are Verity Marshall, a disability costs consultant, and John Pollock, a consultant actuary. In its original form the motion only sought certification of Ms Marshall. By his interlocutor of 29 September 2003 the sheriff continued consideration of that motion, along with a motion for the second defenders (No 7/6 of Process) with which this appeal is not concerned. It is clear from a note attached to that interlocutor however that the sheriff considered the pursuer's motion in relation to Ms Marshall to be incompetent and it was apparently for this reason that that motion was dropped when the matter was next before him on 9th October 2003. There is accordingly no formal refusal of the pursuer's motion in relation to Ms Marshall in either the interlocutor of 29 September or that of 9th October. By the time that the matter returned to the sheriff on 9th October however the pursuer's motion had been amended to include a motion for certification of Mr Pollock. That motion was refused and is now the subject of a particular ground of appeal.

[2]      Notwithstanding the absence of any formal disposal of the motion in relation to Ms Marshall, parties were agreed in asking me to consider the sheriff's conclusion regarding the competency of what was proposed in that motion and in effect to consider the motion of new if I thought that the sheriff's conclusion was wrong.

[3]      The issue of competency arises from a change in the terms of the Act of Sederunt relating to the fees of witnesses in the sheriff court. This change was brought about by the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) (Amendment) 2002 (hereinafter referred to as the "2002 Act of Sederunt"), which substituted a new schedule 1 for that annexed to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 (hereinafter referred to as the "1992 Act of Sederunt"). Schedule 1 contains what is referred to as "the table of fees" (2002 Act of Sederunt para. 2(2)). The 2002 Act of Sederunt came into force on 1st July 2002 and provides that the new schedule 1 "shall not affect fees chargeable for work done, or outlays incurred, before 1st July 2002." The fees chargeable by Ms Marshall related to work done wholly after 1 July 2002, whereas the fees chargeable by Mr Pollock related to work done partly before and partly after 1 July 2002.

[4]      In its original form schedule 1 to the 1992 Act of Sederunt provides at paragraph 9 as follows:

"Investigations by and attendance of skilled witnesses

Where it is necessary to employ a skilled person to make investigations prior to a proof in order to qualify him to give evidence, charges therefor, and for attendance at such proof, shall be allowed in addition to the ordinary witness fees of such person at such rate which the auditor in his discretion shall determine is fair and reasonable provided that the court grants a motion to this effect not later than the time at which it awards expenses and the witness's name is recorded in the interlocutor."

 [5]      In terms of the 2002 Act of Sederunt that provision disappeared. Paragraph 1 of the amended schedule 1 made provision for "Skilled Persons" as follows:

"Where it is necessary to employ a skilled person to make investigation in order to qualify that person to report and/or give evidence in any action, charges for such investigations and for attendance at any hearing in the action shall be allowed at a rate which the Auditor of court shall determine is fair and reasonable."

 [6]      Since reserving my judgment the position has changed yet again and I am grateful to the solicitor for the respondents for bringing this to my attention. With effect from 4 May 2004 paragraph 1 of the amended schedule 1 has been further amended by adding back the words "provided that the court grants a motion to that effect not later than the time at which it awards expenses and the witness's name is recorded in the interlocutor." This amendment was effected by the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) (Amendment) 2004 (hereinafter referred to as the "2004 Act of Sederunt"). It is clear from paragraph 4 of the 2004 Act of Sederunt however that that amendment will not affect fees chargeable for work done before 4 May 2004. The issue in this appeal therefore requires to be resolved by reference to the position adopted by the 2002 Act of Sederunt, although the effect of my decision will be confined to those cases in which the fees of skilled witnesses are chargeable for work done wholly between 1 July 2002 and 4 May 2004.

[7]      The sheriff took the view that the omission from the amended schedule 1 of any explicit provision for certification by the court must have been deliberate and that the effect of the change was to remove the need for prior certification by the court. He took the view that, in respect of work done after 1 July 2002, the matter was wholly within the province of the auditor of court and that if one of the parties was dissatisfied with the decision of the auditor it would be open to that party to take a note of objections to the auditor's report.

[8]      The solicitor for the appellant sought to challenge that conclusion. He pointed to the fact that such a conclusion, if correct, would introduce a procedure materially out of line with that in the Court of Session (RCS 42.13), which still required certification. Practitioners were generally unaware of the alleged change and had it been intended to make such a significant change one might have expected the matter to have been more clearly expressed and to have received greater publicity. As it was he submitted that the new provision could be read in two parts. The question of whether it was necessary to employ a skilled person was the function of the sheriff and the question of what charges might be allowed was a matter for the auditor. He referred to Macphail Sheriff Court Practice 2nd edn paras. 19-64 and 19-66, Parratt v Ceiling Décor Ltd 1998 SCLR 556 and Merrick Homes Ltd v Duff (no 2) 1997 SLT 53, but none of these references addressed the point at issue and in my view little assistance could be derived from them.

[9]      The solicitor for the respondents supported the reasoning of the sheriff and submitted that there was nothing inherently objectionable in leaving the question of whether it was necessary to employ a skilled person to the judgment of the auditor. While that may appear anomalous in a case that had proceeded to proof, such cases were exceptional and in those cases that had settled the auditor was in as good a position as the sheriff to assess whether it had been necessary to employ a skilled person. Indeed in such cases he might have a better view by virtue of his review of the whole file at taxation. The auditor's function was not confined to applying rates of fee to particular pieces of work but extended to questions of whether a particular course of action that had been followed in the action was justified and that necessarily involved him in making judgments about the case generally.

[10]      In my opinion the sheriff was well founded in thinking that the 2002 Act of Sederunt brought about a material change in the provisions relating to skilled witnesses and that it was no longer necessary to seek the court's certification of a skilled witness before his or her charges would be allowed in an account of expenses.

[11]      Paragraph 2 of the 1992 Act of Sederunt provides that Schedule 1 "shall have effect to regulate the fees charged and outlays incurred by a witness." The proviso in paragraph 9 of Schedule 1 in its original form operated as a qualification to a matter which would otherwise have been within the province of the auditor's taxation. The distinction between the general terms of the rule and its qualification is more obvious in the equivalent rule in the Court of Session. RCS 42.13(2) states the general proposition but is qualified in paragraph (3), which provides that the auditor "may make no determination under paragraph (2) ..... unless the court has ..... (a) certified that the witness was a skilled witness ..." It is evident from this manner of expression that, but for the terms of paragraph (3), the auditor would have power to determine the issues raised by paragraph (2). In my view, despite the slightly different form of expression, paragraph 9 of Schedule 1 in its original form was to the same effect. Prior to the amendment of paragraph 9 certification was a necessary precondition of the allowance of an additional fee in both the Court of Session and the Sheriff Court: cf. Clark v Laddaws Ltd 1994 SLT 792. Accordingly it follows that the removal of any proviso in the amended Schedule 1 left the auditor free to apply the provisions of paragraph 1 of the amended Schedule 1 without the necessity of the court's prior intervention.

[12]      The reason for the divergence between the rules in the Sheriff Court and the Court of Session brought about by the 2002 Act of Sederunt is not immediately apparent, although one inference to be drawn from the further amendment brought about by the 2004 Act of Sederunt is that the divergence may not have been intended. Whatever the explanation, I agree with the sheriff that the wording of the 2002 Act of Sederunt is clear and that the divergence in approach between the two courts does not detract from the irresistible conclusion to be drawn from the removal of the proviso in paragraph 1 of the amended Schedule 1. I am not persuaded that any lack of awareness on the part of practitioners (if such exists) or any absence of publicity (beyond the publication of the 2002 Act of Sederunt itself) are factors that can legitimately be prayed in aid in support of an argument to the contrary. For what it is worth, auditors of court were well aware of the change.

[13]      While the sheriff has expressed the view that certification by the court was no longer necessary, at least in respect of skilled witnesses whose work has been carried out after the coming into force of the 2002 Act of Sederunt, he has gone further and expressed the view that it was no longer competent for the court to grant a motion for certification in such circumstances. I think that the sheriff goes too far in excluding the court's intervention as incompetent if he has done so simply because the proviso in paragraph 9 has been removed. As I have already said, the proviso in paragraph 9 was a precondition of the allowance of an additional fee, but the removal of that precondition says nothing about the respective functions of the court and the auditor in relation to the charges of skilled witnesses. Accordingly, if the matter is looked at merely from the terms of the 1992 and 2002 Acts of Sederunt, it does not necessarily follow that, because it is no longer necessary to have the prior certification of the court as a precondition to the allowance of an additional fee, the court is thereby excluded from having anything to say about those charges.

[14]      Paragraph 2 of the 1992 Act of Sederunt simply provides that the fees incurred by a witness will be regulated by the terms of the Schedule and paragraph 1 of the amended Schedule makes it clear that an additional fee for a skilled witness will only be allowed where it is necessary. In Macphail's Sheriff Court Practice para 19.03 the view is expressed that the court has an inherent discretionary common law power "to determine by whom, on what basis and to what extent expenses are to be paid." Generally speaking the actual amount of expenses is regulated by the court in dealing with objections to the auditor's report on the taxation, but it seems to me that the possibility exists for the sheriff to give directions to the auditor in advance of the taxation as to the basis upon which expenses are to be taxed and that might extend to giving directions to the effect that a particular witness fell within the ambit of paragraph 1 of the amended Schedule 1.

[15]      The focus of the argument at the appeal was the proper construction of the Schedule to the 2002 Act of Sederunt and little attention was given to the scope of the sheriff's powers in relation to expenses more generally. In my view there is little doubt that a proper application of paragraph 1 of the amended (2002) Schedule 1 will generally result in questions raised by that paragraph being dealt with by the auditor and that, faced with a motion seeking certification of skilled witnesses, the court would be entitled to refuse such a motion as unnecessary. It should be emphasised yet again however that this approach is only appropriate to those cases which fall within the ambit of the 2002 Act of Sederunt.

[16]      There may however be circumstances in which it could be appropriate for the court to express its view in advance of a remit to the auditor and one such circumstance might be the fact that the sheriff had conducted a proof as a result of which he or she was particularly well placed to assess whether it had been necessary for a skilled person to have made investigations in order to qualify that person to report or give evidence in any action. In my view there is nothing in the terms of the 2002 Act of Sederunt which would exclude such a course of action and, in the absence of any other argument having been advanced to the contrary, I am unwilling to hold that it would be incompetent to do so.

[17]      It should be observed however that what I have in mind is not strictly speaking "certification" as that term has come to be used in relation to paragraph 9 of the original Schedule 1 and for that reason I have a reservation about simply granting the pursuer's motion in relation to Ms Marshall in the terms in which it was enrolled. That reservation is reinforced by the fact that that part of the motion was dropped and there is accordingly nothing in the sheriff's interlocutor upon which parties can properly bring the matter before me in the appeal. Nevertheless, in light of the attitude of the parties, I take the view that I should consider whether to give any indication to the auditor of the basis on which he should approach the taxation of her charges. But for the circumstances regarding Mr Pollock's fees, I would have thought that the position of Ms Marshall was one which properly fell to be left entirely to the auditor. The speciality of this case however is that Mr Pollock's fees are not allowable without the court's prior certification and the argument advanced against certification of Mr Pollock raises precisely the same objection as that which is deployed against certification of Ms Marshall. In that somewhat exceptional circumstance I have decided that I should express my view on the position of Ms Marshall to the auditor.

[18]      As I have already explained, the position in relation to Mr Pollock is different since paragraph 9 of the original Schedule 1 continued to have effect in respect of fees chargeable for work done before 1 July 2002, which included part at least of the work undertaken by him. Accordingly it is not in dispute that the sheriff was correct in thinking that certification was required if Mr Pollock's fee was to be allowable. In his note the sheriff draws attention to the modest sum at which the action was settled and expresses the view that it was inconceivable that any part of that sum related to pension loss. In refusing to certify Mr Pollock as an expert witness he adopted the approach set out in two Outer House decisions which were at that stage unreported, namely Snelling v Thomson Alarm and Communication System Ltd (12 June 2003) and Allison v Orr (30 July 2003). In each of these cases reference was made to the level of settlement achieved as a material factor in the decision whether to certify the witness in question. However, on a later appeal to the Inner House in Allison v Orr 2004 SLT 340, this approach was disapproved and it was stated that it could not be inferred from the fact that the pursuer's action settled for a small proportion of the sum sued for that the case was a simple one of modest value and that it was unnecessary to instruct either of the skilled witnesses.

[19]      The solicitor for the respondents accepted that, in light of the approach of the Inner House in Allison, the sheriff had proceeded on an erroneous basis and that the matter was therefore at large for me.

[20]      The pursuer's averments in Article 5 of Condescendence include averments of a continuing medical condition which, it is said, was attributable to the accident and which made her unfit for work. It was in this context that it was claimed that she suffered a loss of pension rights. The solicitor for the respondents submitted that the issue of pension loss could only arise on the basis that the pursuer's continuing medical condition was caused by the accident and that there had never been any evidence of that causal connection. He referred to the medical report of the consultant neurosurgeon Mr Ballantyne (no.5/1/2 of process) upon which the pursuer's averments depended and submitted that nowhere does it say that the pursuer's condition was caused by the accident. In fact there was no such causal connection and the pursuer's agents in agreeing the level at which settlement was reached must have accepted this. The incurring of expenditure in relation to Mr Pollock was entirely attributable to a failure to ask Mr Ballantyne about causation and when at a late stage in the case he had been asked the right question he had given the answer that there was no causal connection. He submitted that in these circumstances it was not appropriate to certify Mr Pollock as falling within the ambit of paragraph 9 of the original schedule 1.

[21]      In responding to this argument the solicitor for the appellant submitted that it was clear from Mr Ballantyne's report that the pursuer had suffered a back injury and that it was notoriously difficult to identify the cause of back pain. While he accepted that the test was whether it had been necessary to employ a skilled person, he submitted that the court should not weigh that matter too finely in the balance and that if it had been reasonably necessary to employ the expert that was an appropriate case for the certification of that person.

[22]      In Allison v Orr sup.cit at para 38, the Inner House emphasises that the appropriate point in time at which to test the necessity of instructing an expert witness is the time when the witness was instructed. The court did not attempt any general definition of the word "necessary" and thought that it was neither appropriate nor helpful to do so since necessity was "a creature difficult to describe but easy to recognise when one sees it." They did however refer to what a reasonably prudent lawyer would do in particular circumstances and in my view this supports the argument for the appellant that the matter should not be weighed too finely in the balance and that certification is not necessarily to be refused because, with the benefit of hindsight, the evidence of the skilled witness has not proved to be necessary.

[23]      With these observations in mind I am satisfied that it was necessary to instruct Mr Pollock. There was apparently no doubt that the pursuer was suffering a continuing medical condition and that as a result she might be expected to suffer a loss of pension rights. Mr Ballantyne's report sets out his view that the pursuer was unlikely to go back to work, although his ground for thinking this was related to the psychological consequences that had apparently flowed from the accident. He recognised however that this was not a matter on which he was competent to pronounce and suggested a psychiatric opinion be obtained. His report however does seem to give credence to the claim that the pursuer had sustained injury to her back in the accident and I think there is some force in a view that it is not always easy to disentangle the various factors that contribute either directly or indirectly to an ongoing medical condition. In my view the issue of causation in this case was not so obviously unfavourable to the pursuer at the material time that a reasonably prudent lawyer would not have considered it necessary to instruct an actuary in such circumstances. I also observe that the respondent's argument in this case has many similarities to the argument advanced in the Inner House in Allison and I am reinforced in my view by the fact that certification was made in that case notwithstanding that argument. As I have already indicated, the objection to certification of Ms Marshall is founded on precisely the same argument and, having rejected that argument, I am satisfied that it was equally necessary to instruct her.

[24]      In the result I shall allow the appeal against the sheriff's interlocutor of 9 October 2003 insofar as it refuses to certify Mr Pollock as an expert witness. Having considered the question of certification of new I have certified Mr Pollock as a skilled witness in terms of paragraph 9 of the original schedule 1 to the 1992 Act of Sederunt. I do not think it is necessary to do other than indicate to the auditor that I am satisfied that the criteria for allowing charges in relation to Ms Marshall in terms of paragraph 1 of the amended Schedule 1 are met.

[25]      No part of the sheriff's interlocutor of 29 September 2003 (as distinct from the note attached to that interlocutor) was challenged either in the note of appeal or, in the final analysis, in the oral argument advanced at the appeal hearing and accordingly I need make no reference to it in my own interlocutor.

[26]      I was asked to reserve the question of the expenses of the appeal and I agree that it is appropriate to do so.

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