Scottish Sheriff Court Decisions

        SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

2015SCDUMF25

NOTE No. 225

                                                         by

                     SHERIFF GEORGE JAMIESON

(Certification of skilled witness in summary cause SC9/14)

ALLAN J WRIGHT                       

      PURSUER

against

LADY JONET HUNTER-BLAIR

DEFENDER

                                                _____________________________________________   

DUMFRIES:                                                     March 2015

Act: Party in person                                       Alt: Turnbull

The sheriff, having resumed consideration of the cause, certifies Richard Howe as a skilled person in terms of paragraph 1(1) of the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 as substituted by rule 2(2) of the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) (Amendment) 2011 (“the 1992 AOS”), finds the pursuer liable to the defender in the expenses of the cause as assessed from 25 July 2014 to date, remits to the sheriff clerk in terms of paragraph 1(1) of the 1992 AOS to assess in terms of paragraphs 1(1) and (4) of the 1992 AOS the fair and reasonable charges for any work done or expenses reasonably incurred by Richard Howe which were reasonably required for a purpose in connection with the cause or in contemplation of the cause , and to assess in terms of paragraph 1(3) of the 1992 AOS the expenses occasioned by the defender in connection with pursuer’s application for certification of Richard Howe as a skilled witness, and to fix a date for the diet for assessment of those expenses and a further date for the diet for approval of expenses.

                 Sheriff George Jamieson

NOTE:

Issue

• [1]It has long been accepted practice in the sheriff court that the pre-proof expenses[1] incurred by the instruction of a skilled witness are recoverable only if the court, on the motion of the party to whom expenses are awarded, has granted certification of the witness as a skilled person[2]. Previously, the motion for certification had to be made not later than the time at which the court awarded expenses[3]. The current rule, which takes no account of assessment of expenses in summary cause procedure, is that the motion may be granted at any time before the diet of taxation[4]. In this case the pursuer was awarded summary cause expenses as assessed but moved for certification of his witness as a skilled person only at the diet for approval of expenses[5]. The issue for my decision is whether this motion came too late.

  Concession

   

• [2]Mr Turnbull conceded that if the motion for certification had been made timeously then Mr Howe had reasonably been employed as a skilled witness and I should accordingly grant the certification sought by the pursuer[6].

   

  Submissions and Decision

   

• [3]Since the 1992 AOS applies to witness expenses in “civil proceedings in the sheriff court” without exception[7], I agree with Mr Turnbull that although paragraph 1(1) of schedule 1 of the 1992 AOS refers only to a diet of taxation it should be read also as including assessment of summary cause expenses under Summary Cause Rules 2002, rule 23.3 and that there is thus no basis for excluding summary cause assessment from paragraph 1(1) of schedule 1 to the 1992 AOS on the pragmatic ground that summary cause procedure should be simple and readily accessible to party litigants [8].
• [4]However, I also agree with the pursuer that the 1992 AOS should be construed in the manner most consistent with fairness. Since the dispensing power contained in the Summary Cause Rules 2002 applies only to a failure to comply with those particular rules[9] and the 1992 AOS is not incorporated into those rules, there is no provision for any pursuer, on cause shown, to obtain relief from failure to apply for certification on time[10]. Under summary cause procedure, the sheriff bears responsibility at the diet for approval of expenses for pronouncing final decree and determining the amount of expenses. I am therefore of the opinion that the reference to diet of taxation in paragraph 1(1) of schedule 1 to the 1992 AOS should be taken to mean the whole process of fixing expenses in a summary cause assessment, so that the latest date by which the party awarded expenses may move for certification of a witness as a skilled person is at the diet for approval of expenses. This is consistent with the provision of the 1992 AOS that pursuer suffers a penalty for his tardy motion by being found liable to the defender in the expenses occasioned by his late motion, which ought, as a matter of practice, to have been made at the time of his motion for expenses[11].

   

• [5]I have pronounced the appropriate interlocutor to give effect to my decision and the defender’s concession based on it.