16 November 2017
The National Personal Injury Court continues to grow its jurisprudence. Decisions have been appearing in much more regularity with the number reported in 2017 already exceeding those in 2016. Two recent cases involving the certification of expert witnesses, modification of expenses, and sanction for Counsel, are discussed below.
In Boyle v CIS Ltd & Another, 2017 SC EDIN 36, the Court issued a useful reminder of the test which will be applied when considering whether certification of a skilled witness is merited. The issue in Boyle centred over certification of one of the pursuer’s skilled witnesses, a neuropsychiatrist.
For certification to be granted, the Court must be satisfied that (a) the person was a skilled person; and (b) it was reasonable to employ the person, assessed at the point of instruction. There was no issue in Boyle over the neuropsychiatrist’s qualifications. The issue turned upon whether it had been reasonable to have instructed him in the first place.
The pursuer sought to argue that she had instructed an eminent neuropsychiatrist who was an expert on somatoform disorder (which was an issue in the case). Certification was opposed on the basis that it was not clear why the expert had been instructed, standing the fact the pursuer already had opinion from a clinical psychologist; a consultant psychiatrist and a consultant neurosurgeon.
The Court refused to certify the neuropsychiatrist on the basis that the involvement of the consultant psychiatrist suggested there had been duplication of effort. The question was whether the neuropsychiatrist had been asked to address an issue that the psychiatrist was not able to comment upon. The Court was not satisfied that it was reasonable to have instructed the neuropsychiatrist, absent the letters of instruction sent to both experts which may have identified the distinction between what each was asked to comment upon or the reports themselves.
This decision is a useful reminder that the pursuer must be able to justify the basis for the instruction of the skilled witness, otherwise certification is likely to be refused.
In Harrison v Compass Group UK & Ireland Ltd, [2017] SC EDIN 42, the Court was tasked with resolving the issue of whether there ought to be any modification to the pursuer’s judicial expenses, together with whether sanction for Counsel ought to be granted.
The general rule is that expenses follow success. However, the Court has ultimate discretion over expenses. The Court can also order that a successful party’s expenses be subject to a percentage modification, normally to mark its displeasure at the conduct of a successful party.
The defenders sought modification of the pursuer’s expenses on the basis that a key medical report was disclosed in January 2017 with just five days allowed for an offer to be made before litigation commenced. The defenders’ submitted that litigation may have been avoided had they been allowed an appropriate amount of time to respond to the disclosure of the medial evidence.
The pursuer’s position was that the triennium was due to expire on 4 February 2017 which gave them little room for manoeuvre. The defenders had access to another expert report dating from July 2016 which suggested that the pursuer undergo a further review in November 2016. It was submitted that the defenders could have obtained their own report. Although there had been a delay in obtaining medical evidence, this was due to the pursuer undergoing surgery and recuperating.
The Court refused to modify the expenses on the basis that it could not criticise the pursuer’s conduct. It also noted that the defenders had not been proactive and could have pressed the pursuer for disclosure prior to litigation.
Modification is a useful tool with the potential to restrict expenses where there has been unreasonable conduct on the part of a successful party. However, the Court must be satisfied that there is sufficient cause to exercise its discretion and it ought to be borne in mind that the conduct of the losing party will not escape scrutiny in any motion for modification.
The defenders separately opposed sanction for Counsel on the grounds that, if the action had been settled pre-litigation, Counsel would not have been required. Only two months passed before settlement was reached after disclosure of the medical report in January 2017. The alternative submission was that sanction should be limited to one consultation to discuss the defenders’ Tender (part 36 offer).
The pursuer’s Counsel submitted that sanction should be granted, reminding the Sheriff that the action settled for £45,000 which was a substantial sum of money for the pursuer. Without the issue of contributory negligence (which the defenders introduced for the first time in their defences) the claim may have been worth £80,000. It was submitted that the case was of great importance to the pursuer given her concern over whether, given her injuries, she would be able to continue to care for her husband.
The Court granted sanction for Counsel for the whole cause. It had no difficulty accepting the pursuer’s position that the case was complex and the value of the claim was of great importance to her. The decision in Harrison is regrettably another reminder of the difficulties faced in opposing sanction for Counsel. However, the Court appears to have accepted that it had the power, even if sanction was to be granted, to restrict the extent of Counsel’s involvement. Therefore defenders should consider carefully the pieces of work for which Counsel has been instructed and continue to choose the cases in which they oppose sanction for Counsel with care.
Contact:
 |
|
Lewis Richardson |