5 - Certification of Skilled Persons

Summary

Many court actions will involve the instruction of skilled persons to investigate and report on matters pertaining to the dispute. Ultimately, the purpose is to assist the court in determining issues with which it is not familiar. Such evidence may, of course, assist parties prior to or during the conduct of a litigation to achieve an extra-judicial resolution.

There is no definition of ‘skilled’ laid down in the rules. According to MacPhail, there is no rigid rule that the person must possess some technical qualification. It is thought that they ‘must however possess either a theoretical acquaintance with matters of scientific knowledge or practical experience of the rules of any trade, manufacture or business with which men of ordinary intelligence are not likely to be familiar’.

Before the costs payable to a skilled person are recoverable by the entitled party from the opponent, the skilled person requires to be certified by the court as a skilled person. If that is done then it is the auditor’s job to assess the reasonableness of the charges that the skilled person has levied.

Such witnesses in the past have been referred to as expert witnesses or skilled witnesses. The correct terminology is skilled person to reflect the phraseology in the court rules.

RELEVANT COURT RULES RE CERTIFICATION OF SKILLED PERSONS

For actions commenced prior to 29 April 2019, the rule in relation to the certification of skilled persons is found in the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) (Amendment) 2011, which states:

1. (1) If at any time before the Diet of Taxation the Sheriff has granted a motion for the certification of a person as skilled, charges shall be allowed for any work done or expenses reasonably incurred by that person that were reasonably required for a purpose in connection with the cause or in contemplation of the cause.

(2) A motion under paragraph 1 may be granted only if the Sheriff is satisfied that (a) the person was a skilled person and (b) it was reasonable to employ the person …

(3) The charges which shall be allowed under paragraph 1 shall be such as the Auditor of Court determines are fair and reasonable …

The motion for certification can be presented at any time before the diet of taxation.