Certifying skilled witnesses — and how to manage the risk of unrecoverable costs

What are the rules on certification of a skilled witness, and how should practitioners manage the risk of unrecoverable costs? Kennedys’ Anne Kentish and Kym Hayley outline some key considerations.

As any litigator knows, selecting the right expert witness can have the potential to make or break a client’s case. They will also be aware that in most cases, expert input does not come cheap. 

The rules in Scotland on certification govern the circumstances in which the expenses of experts will be recoverable. A failure to heed the rules can result in expert expenses incurred during the course of, or prior to, a litigation not being recoverable from an opponent. 

Similar considerations apply to seeking sanction for counsel in the sheriff courts (sanction does not require to be sought in the Court of Session). 

There are then some risk management issues associated with the timing of a motion for certification or sanction.

The rules on certification

Proceedings commenced before 29 April 2019 

The old rule, which still applies to actions commenced prior to 29 April 2019, is that certification of an expert in any form of action must be sought before the diet of taxation takes place. 

In these cases, the motion for certification can be enrolled even after the court has made an award for expenses, so long as it is enrolled prior to taxation.

Proceedings commenced after 29 April 2019 

The new rules apply what might be seen as a stricter approach to a motion for certification. They can give rise to risk management issues for practitioners. 

In terms of Rules 5.3(4)–(5) of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, certification of experts (or skilled persons to be exact) is to be sought prior to work being undertaken by the expert. 

That is the case except in relation to actions under simple procedure or personal injury actions proceeding under Chapter 43 of the Rules of the Court of Session or Chapter 36 of the Ordinary Cause Rules (ie non-case-managed personal injury actions). As was the case under the old rule, certification in those types of actions can be sought at any stage prior to taxation.

There is an important proviso to the new rules, in terms of Rule 5.3(5) of the 2019 Act, in that the court can grant retrospective certification ‘on cause shown’. 

There is, to date, limited case law regarding what will be deemed by the courts to be cause shown. It seems that the court might allow retrospective certification where the expert was instructed pre-litigation and certification could obviously not be sought at that stage.

Ultimately, however, whether cause is considered to be shown is at the discretion of the court. That can result in uncertainty for the client. 

Pre-litigation considerations 

A solicitor ought to carefully consider and select appropriate expert witnesses to provide input on their client’s case. The client should be advised of the risks of proceeding without relevant expert input and also of the risks that the court might not grant retrospective certification.

In the pre-litigation stages of a claim, the solicitor may wish to consider the extent of work they wish to instruct an expert to undertake from a costs perspective, in recognition of the fact that the court may ultimately be unwilling to grant retrospective certification for work done pre-litigation. 

They may therefore wish to ensure that pre-litigation input is restricted in so far as possible, to guard against the client potentially being saddled with irrecoverable costs. That has to be balanced with whether an action can properly be raised and progressed without the relevant expert input.

Unfair advantage?

Does a pursuer gain an unfair advantage as a result of the new rules?

A defender may be completely in the dark about a court action until it is raised. The pursuer has been able to front-load their investigations pre-litigation. The pursuer potentially has more choice of experts.

“The rules on prospective certification mean that the defender needs to declare the expert they intend to instruct to the other side, and to the court, in advance of them undertaking any work if they want the ability to recover the costs of the expert in a judicial account. They will have to do so without knowing in advance what the relevance of the evidence is likely to be.” 

The defender’s solicitor will need to carefully weigh up whether to risk a later motion, bearing in mind that a court may not grant retrospective, or indeed prospective, certification. A carefully considered analysis will need to be applied in such circumstances, and the client will need to be fully appraised of the solicitor’s analysis. 

Sanction for counsel 

As with the rules on certification, in sheriff court actions commenced after 29 April 2019 (other than simple procedure and case-managed personal injury actions) a party will be unable to recover counsel’s fees which pre-date sanction having been granted under Rule 4.3(4)(c) of the 2019 Act. There is a parallel proviso to this in respect of the rules on certification under Rule 5.4(6), which allows the court to grant sanction for work already done, again on cause shown. 

The old (and continuing for actions commenced prior to 29 April 2019) practice was for sanction to be sought at the conclusion of a case. 

As is the case with a motion for certification, the careful solicitor will therefore likely wish to ensure that advice is tendered to the client that sanction should be sought as early as possible, otherwise they risk counsel’s fees not being recoverable from the opposing party. 

Ultimately it will be for the solicitor dealing with the case at hand to provide advice to the client regarding the timing for such a motion; however, they should at all times bear in mind that determining what does or does not constitute cause shown where a motion is tendered late is a matter for the presiding sheriff (and is therefore tethered to a degree of risk). 

Food for thought 

The rules seem clear. It goes without saying that practitioners should ensure at the earliest possible stage that they have identified which rules regarding certification apply to the action with which they are dealing. 

Any advice given to clients regarding the timing of a motion for certification ought also to clearly identify the risks of failing to enrol a motion at the earliest opportunity. 

In certain circumstances the client may wish, for tactical reasons, to hold off making a motion for certification prior to declaring an expert to the other side. In such instances the client will need to be clearly warned of the risk that a court may, at a later stage, refuse a motion to certify the expert. It should be flagged to them that, in that event, the expert’s expenses will be irrecoverable from the other party. 

If deviation from the rules for a strategic reason is considered by the client, the potential costs, perils or worst-case scenario attaching to that consideration should be set out to the client in clear terms, in order that they can make an informed decision as to whether that is a risk they are prepared to take. 

Written by Anne Kentish and Kym Hayley, Kennedys