Ross v PGS Productions A.S [2009] CSOH 45
The assessment of expenses in Scottish cases is always of
interest. The starting point is that a party awarded expenses will
calculate them using the published table for judicial expenses,
where there is a fixed fee for each step in the litigation, rather
than by reference to the amount of time spent on the case. This
case highlights the vexed questions of when a party can claim
further expenses for an expert and when the solicitor is entitled
to an additional fee.
The action concerned an accident on an off-shore installation in
which the pursuer suffered significant injuries. He was employed as
a deck foreman with the defenders and he, along with his deck crew,
was instructed to repair a damaged mooring line. Tension was
required to carry out the repair and this was initially provided by
a chain block. The block failed but was replaced with a capstain
winch. The winch increased the tension on the repair and as a
result a hook spun away, striking and injuring the pursuer's left
hand.
There was no dispute between the parties as to how the accident
happened. The defenders accepted that the capstain should not have
been used for the job the pursuer was carrying out. The point in
dispute was therefore whether the use of the capstain by the
pursuer was authorised, or at least tolerated, by the
defenders.
The case subsequently settled and came before Lord Malcolm on
the issue of whether two expert engineers, instructed by the
pursuer, should be certified as skilled witnesses. Certification
would allow the pursuer to recover the costs of the engineers'
investigations and reports. The defenders opposed the
certification. The test set out in the Rules of Court states that
the court must be satisfied that it was reasonable to employ an
expert witness to make investigations or to report on the case for
any purpose.
In opposing, the defenders submitted that it was not reasonable
to have instructed one expert engineer, never mind two. It was
clear that the issues in dispute were very narrow indeed. In fact,
the only issue was the question of authorisation to use a capstain.
As this was a matter of fact, which could only be resolved by lay
witness evidence, there was nothing on which an expert could
comment. Instructing two expert witnesses was simply excessive.
In response, the pursuer submitted that this had been a very
complicated case involving both senior and junior counsel. Two
consultations had been held with one of the experts as it was
necessary to understand precisely the mechanics of the incident and
how it had occurred. However, the pursuer could not explain why the
reports were so wide ranging, covering irrelevant issues, and could
not produce the letters of instruction.
In making his decision, Lord Malcolm had no hesitation in
agreeing with all of the submissions for the defenders. He was
satisfied that it was 'tolerably clear' from the pleadings that the
issue in dispute was a matter of fact, and not one requiring expert
opinion. Neither of the reports were required to assist in the
resolution of the case. The engineers had acted more like claims
consultants than independent experts giving advice and assistance
to the court.
The pursuer had also sought an additional fee for the solicitors
based on the complexity of the case. Lord Malcolm also refused this
motion and noted there was a lack of information upon which he
could reach a decision. He did however remit the matter to the
Auditor of Court for determination. It is the Auditor's task to fix
the level of expenses where parties cannot reach agreement.
This case highlights the importance of giving careful thought to
the selection and instruction of experts, but more importantly for
defenders, to question the certification of the pursuer's
witnesses. Experts are expensive. One must therefore apply this
test: Was it reasonable to instruct an expert at all? If so, has
the expert offered an opinion or simply recounted the facts of the
case?
Expenses for an expert are far more wide-ranging than just the
cost of a report. Fees for the solicitor revising the report and
for the expert attending consultations, together with cancellation
fees for trial, all add considerably to a pursuer's account. It is
therefore in insurers' best interests for expenses to be challenged
wherever possible.
Contributed by Jennifer Gammell