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Experts: where to draw the line

19 January 15

Latest civil procedure cases, including expert evidence; orders for disclosure; jurisdiction; summary decree; appeals; tenders; medical certificates; personal injuries actions; decree in absence; child protection orders

by Lindsay Foulis

Expert evidence

This is a matter which has surfaced in criminal appeals in the last few years, and is now subject to observations in civil disputes by reference to the Inner House decision of Kennedy v Cordia (Services) LLP [2014] CSIH 76; 2014 SLT 984. A home carer had sought damages arising from an accident when she slipped and fell on an icy path. Liability was established at proof on the basis that risk assessments were neither sufficient nor suitable, and the pursuer had not been instructed in the use of, nor was it ensured that she used, attachments for footwear in icy conditions. The pursuer led evidence from a health and safety “expert” who expressed an opinion that the regulations in question had been breached. The Inner House allowed the appeal.

All three judges made observations regarding the “expert” evidence. Giving the leading opinion, Lord Brodie observed that a person does not become an expert able to give such evidence simply because of the extent of knowledge or experience. The subject matter of that knowledge or experience must be such that it forms part of a generally recognised and specific discipline with a core of organised principle and practice shared by exponents of that discipline and thus amenable to forensic examination and evaluation. The discipline or craft does not require to be highly sophisticated, but it must have identifiable generally accepted principles to which reference can be made. The opinion from a person skilled in such a discipline can instruct and advise a judge on a particular area. Other opinions are simply personal expressions from a witness and of no evidential value. Evidence can be led of some accepted standard of conduct laid down, but not of a practitioner’s likely course of action in a particular factual situation.

Lord Clarke observed that unless the opinion of a witness is based on the principles of some recognised branch of knowledge in which the witness has particular experience and expertise, any evidence given is valueless and inadmissible. Lady Smith observed that the evidence of the “expert” in this case was indicative of a widespread, but ill-founded, assumption that it was necessary to lead evidence to advise a court what an employer should have done in a particular set of circumstances.

Orders for disclosure

In the appeal in Clark v TripAdvisor LLC [2014] CSIH 110 (19 December 2014), the Inner House upheld the decision of the Lord Ordinary (see March article). It agreed that the court had no jurisdiction to grant the order seeking to recover information as to who posted certain comments to the respondents’ website, as the respondents were in Massachusetts. Section 1(1A) of the Administration of Justice (Scotland) Act 1972 did not extend beyond Scotland. The Court of Session could not pronounce an order which required to be complied with by a party who was not subject to the jurisdiction of the court. The court did not generally pronounce an order in such circumstances in which the expectation was that such an order would not be obeyed. In any event there were other more appropriate steps
that could be taken.

Jurisdiction

In Sauchiehall Street Properties One Ltd v EMI Group Ltd, Glasgow Sheriff Court, 4 December 2014, the landlord sued a tenant’s guarantor for sums due by the tenant in terms of the lease. Both parties were domiciled outwith Scotland and jurisdiction was founded on the tenancy of immovable property in Glasgow. A plea was taken as to jurisdiction. After analysing the relevant legislation and regulations Sheriff Reid concluded that there was indeed no jurisdiction. In considering whether a dispute fell within the immovable property ground of exclusive jurisdiction, the court should consider, first, whether the parties were landlord and tenant or derived title directly from such parties by the likes of an assignation. Was the contract in question one of lease of immovable property? Finally, was the object of the action directly linked to rights and obligations under that lease? In the action before Sheriff Reid, the action was based on a guarantee and the parties were debtor and creditor under that contract. The object of the action was to enforce rights in a subsidiary agreement to the lease.

Summary decree

In Maclay Murray & Spens LLP v Orr [2014] CSIH 107 (12 December 2014) Lady Smith, delivering the opinion of the Inner House in an appeal against the grant of summary decree, observed that in determining the motion the court is required generally to consider whether the proposer is correct in their submission regarding the opponent’s case. All material has to be analysed and a fair assessment made on the basis of that information. The mere dispute of a fact does not preclude the grant of the motion. The court does not have to accept, without analysis, everything in documents presented. The court has to consider whether these do support a contention that there is a prospect of success.

Minute to sist

In Willox v Auchnie [2014] CSIH 102; 2014 GWD 39-708 the Inner House decided that the refusal of a minute to sist a party was not a final interlocutor and thus leave to appeal was required. The subject matter of the action was still to be disposed of and until such time as the minuter was sisted as a party to the action, they were not such a party.

Minutes of tender

In Talbot v Babcock International Ltd [2014] CSOH 160; 2014 SLT 1077 the pursuer sought provisional damages. A minute of tender was accepted and a motion for decree in terms of the tender and acceptance enrolled. The pursuer further sought an order reserving leave to apply to the court for a further award within three years, in terms of s 12 of the Administration of Justice Act 1982, if he developed any of four conditions. The defender opposed the motion, seeking to limit the right to apply for further damages in respect of two of the conditions on the basis that they were negligible and unquantified risks and could develop asymptomatically. The court should specify a threshold of disability to enable the court to measure any future increased loss.

Lord Brailsford determined that the minute of tender represented a concession that an award of provisional damages was appropriate, and nothing in the offer, duly accepted, limited the pursuer’s right to return to court. A party could not impose conditions after a tender was accepted. The legislation did not provide for any restriction on the type of condition that could be the subject of a subsequent application.

Medical certificates

Incapacity on medical grounds is often put forward to justify a motion to discharge a hearing or the non-appearance of a party at a diet. While to an extent fact-specific, and clearly the fact that the litigation had reached the stage of an appeal to the Inner House and the merits of the appeal were also factors, Lord Brodie’s observations in Boyd v Fortune [2014] CSIH 93; 2014 GWD 37-680 regarding requirements of such medical certificates are worthy of note. His Lordship observed the medical certificate was inadequate. There was no specification as to symptoms, diagnosis, treatment, or prognosis. The court could not assess from it whether the party could or could not attend court, and that was an issue for the court and no other to determine. There was no indication as to the identity of the signatory of the letter.

Personal injuries actions

In Moran v Freyssinet Ltd [2014] CSOH 173 (5 November 2014) an action for damages for personal injuries called for proof. No statement of valuation had been lodged in terms of RCS rule 43.9. OCR rule 36.J1 is in virtually identical terms. The pursuer moved for decree in terms of his valuation, based on the failure on the part of the defenders to lodge a valuation timeously, while the defenders moved for the timetable to be altered to allow the late lodging of their statement of valuation. Lord Boyd refused the defenders’ motion. There had been repeated oversight as opposed to simple inadvertence.

In granting the pursuer’s motion, Lord Boyd considered that the following were relevant factors. The action had reached a diet of proof without any such valuation having been lodged. There had been a pre-trial meeting despite no valuation being lodged and no meaningful discussion on quantum taking place. The valuation was crucial to the personal injuries procedure. Without it the pre-trial meeting could not cover the issue of quantum, and thus the narrowing of issues and achieving agreement could not take place. Witnesses who might otherwise be unnecessary would be required to attend court. Additional court time would be used hearing evidence which might have been agreed. This is perhaps another indication of a far tighter approach being taken by courts in issues regarding case management. Practitioners should be warned.

Decrees in absence

As a reminder, in Little Cumbrae Estate Ltd v Rolyat Ltd [2014] CSOH 163; 2014 GWD 37-682 Lord Woolman reiterated that if parties are in negotiation, before enrolling for decree in absence following service, as a matter of professional courtesy and good practice, intimation should be given to the other party, perhaps even by recorded delivery.

Child protection orders

While perhaps not falling directly under the umbrella of this article, it may be worth making a passing reference to the thoughts of Sheriff Holligan concerning the appropriate practice regarding applications for child protection orders. These observations appear on the Scottish Courts website as In the Matter of a Child Protection Order, Edinburgh Sheriff Court, 18 November 2014. Sheriff Holligan considered that when such applications are presented by a local authority in terms of s 39 of the Children’s Hearings (Scotland) Act 2011 the authority requires to be legally represented. The application should make clear which paragraphs in ss 38 and 39 apply. The party seeking the order should direct the sheriff to the material which is relevant. On the issue of notification of the application to parents, Sheriff Holligan considered by reference to the statutory provisions, including the basis for making the order and that it was not designed as a long term measure, that there was no requirement for intimation.

Lindsay Foulis, sheriff at Perth

Update

Since the last article, Henderson v Foxworth Inverstments Ltd (November article) has been reported at 2014 SCLR 692, and Clark v TripAdvisor LLC (March) at 2014 SCLR 563

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