Against all odds.....
The test for certification of skilled witnesses is extremely low in Scotland. The pursuer's agents are not even required to produce their expert reports. The court must simply be satisfied that the expert is a skilled person and that his instruction was reasonable in the circumstances.
In a recent case, however, we successfully opposed certification of expert witnesses who provided reports amounting to over £2,500. Applying the test of reasonableness, the court agreed with our position that the instruction of the experts was not required and awarded us the expenses of the hearing.
The pursuer's agents enrolled a motion seeking certification of four expert witnesses – an Orthopaedic Surgeon, Psychiatrist, Employment Consultant and Foot Specialist (who happened to be the pursuer's treating surgeon). There was no argument against certification of the Orthopaedic Surgeon and the Psychiatrist and we had also seen their reports. However, we opposed certification of the other experts on the grounds that their instruction was unreasonable in the circumstances. With regard to the Employment Consultant the court were persuaded by our argument that his instruction was an exercise based on pure speculation without sufficient medical evidence to render it reasonable. They were similarly convinced by our submission that the opinion of the Foot Specialist was not required given the content of the medical records which confirmed a pre-existing and longstanding issue. In fact, the pursuer himself did not consider his foot pain to be related to the accident!
When considering the issue of certification, the court will always have regard to the precise facts and circumstances of the case. We were confident that our argument against the instruction of these experts, even with the low criteria required, would be successful. A considerable saving was secured for our instructing insurer.