Outer House confirms prospective and retrospective expert certification, even where work was done for earlier proceedings
The Outer House of the Court of Session has confirmed that parties can obtain both prospective and retrospective certification of expert witnesses under the 2019 expenses rules, even where some or all expert work was originally undertaken for a prior action against a different defender. The court confirmed that certification can be granted to enable recovery in principle, but the Auditor retains control over what is ultimately allowed in expenses. The decision underscores the importance of sensible expert instructions and good record‑keeping.
Background
S bought a newly built residential property and later alleged widespread defects. S first obtained decree against the developer. However, no recovery was possible because the developer was insolvent. S then sued the architect, G, who had issued professional consultants’ certificates, alleging negligence.
Before and during the first action, S instructed several technical experts and obtained reports on defects and quantum. In the second action against G, S sought court certification of seven experts: both for future work and retrospectively for work already done.
A single judge considered two questions. First, should the experts be certified as “skilled persons” under the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 (that is, the “expenses rules”)? Second, if so, should certification apply retrospectively so that charges for pre‑certification work may, in principle, be recoverable?
Certification of experts
The court applied the objective test in the rules: was it reasonable and proportionate for S to instruct the experts for the purposes of the present action? It rejected the argument that prior instruction in a different action is a bar to certification. It would undermine economy in litigation, one of the underlying purposes of the expenses rules, if new experts were required merely because the action changed. Further, it was reasonable for the pursuers to instruct a range of experts to address the alleged defects and to call quantum evidence.
On the facts, the court certified all but one expert. One structural engineer was excluded for now because the pleadings did not clearly link his structural evidence to the live issues in the present case. The court left open the possibility of certification if further information is provided.
Retrospective work
The expenses rules provide that if an expert does some work before the application for certification is made, then the certification is effective in relation to that prior work only where “the court is satisfied” that the party “has shown cause for not having applied for certification before the work was done.” The judge held that S had shown cause for not seeking certification before the work was done:
- Work first commissioned for the earlier action can still be recoverable if it also served the present action. This is because reports can have a dual purpose.
- Where work began in the earlier action, but the report was prepared for the second action, the case for retrospective recovery is even stronger.
- A party is entitled to instruct necessary expert work pre-action, at a time when certification cannot yet be sought. On facts, any delay after the action was raised did not cause prejudice in this case.
The court therefore exercised its discretion to grant retrospective certification. However, it emphasised that certification only opens the door to recovery of costs. The Auditor must still decide whether the charges were reasonably incurred for a purpose in connection with, or in contemplation of, the current proceedings. If work does not meet that test, it will not be allowed on taxation regardless of certification.
Practical considerations
This decision confirms that sensible expert work undertaken in earlier, related litigation can be certified, and potentially recovered, in later proceedings against a different opponent. That promotes efficiency and avoids duplicative instruction when claims evolve or defendants change.
There are practical steps to take to maximise recovery:
- ensure a nexus between each expert’s work and the live issues in the case, reflected in the pleadings.
- ensure that experts are properly instructed, while maintaining their independence.
- maintain records, including instructions, showing the purpose of the earlier expert work.
- anticipate the auditor’s scrutiny, as necessity, proportionality, and reasonableness govern what will actually be allowed in expenses.
Where expert instructions and involvement are poorly documented, certification may be refused or, even if granted, the auditor may disallow the costs.
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