by Barbara Bolton, partner in Commercial Dispute Resolution, Shepherd and Wedderburn
Under the current rules there are significant differences between Scotland and England and Wales (E&W) in terms of the procedure for presenting expert evidence. The following note covers some of the key differences which solicitors and experts should be aware of.
However, the Scottish Civil Justice Council (SCJC) is undertaking an ambitious and comprehensive rewrite of the existing civil procedure rules for Scottish courts (the Court of Session and the Sheriff Courts) and if those recommendations are implemented, the procedure for expert evidence may become much more aligned with E&W, although some key differences are likely to remain. No definitive timetable has been released for the introduction of the new Scottish civil procedure rules, but it is anticipated that they will come into force around 2019 or 2020.
In E&W the general principle is that the court should control the giving of expert evidence and no party may call an expert or put into evidence an expert’s report without the court’s permission. When seeking permission parties have to provide the court with cost estimates and have to specify the expert’s name (if practicable), the field in which expert evidence is required, and the issues that the expert evidence will address.
In Scotland on the other hand, no certification is required from the court prior to instructing an expert and the parties decide what expert evidence is necessary, how many experts are required and on what issues they ought to give evidence. However, certification of an expert is required in order to recover the cost of instructing the expert from the other party. Certification cannot be sought until after the court has determined the merits of the dispute, when an award of expenses (order for costs) is made.
For the court to certify an expert, the witness must be a skilled witness and their evidence must have been reasonably necessary. The court normally grants certification of experts but it can be refused in certain circumstances; for example, problems may be encountered if an expert witness has been instructed but their report was not lodged and/or they were not called as a witness. Therefore, in Scotland parties have more freedom to decide what expert evidence will be brought, but they carry the risk that they will not be able to recover the expense of obtaining that evidence should the court determine that it was not necessary.
The SCJC considered whether any changes ought to be recommended in this area. It concluded that as no real concerns had been raised regarding unnecessary instruction of experts aside from in family cases, and as any issues could be addressed by the courts refusing certification, they would not recommend introducing greater judicial control of expert evidence or a requirement for permission to instruct an expert. For the moment it appears that this key difference in procedure will remain.
Are expert reports evidence?
In E&W the presumption is that an expert will provide their evidence in a written report, which is taken as their evidence in chief. The report does not have to be spoken to by the expert in order to become evidence. However, parties can seek the permission of the court for the expert to also provide oral evidence at trial, and this is fairly common in high value and complex cases.
In Scotland, by contrast, an expert report is not evidence in and of itself. The expert must appear at the proof (trial) to give oral evidence and could, at least in theory, provide evidence without reference to a report and without any report having been lodged in advance. Any report that is lodged in advance has the purpose of giving the court and other parties advance warning of what the expert’s evidence will be.
In the 2006 personal injury case Legal Representative v Graeme John Douglas and Another, Lord Carloway noted that in Scotland expert reports do not “become the evidence in chief of the witness or otherwise ubstitute for oral testimony” and an expert “may give his testimony from the witness box without reference to his report at all. He may do so with reference to his report even although it may not have been formally lodged.”
Lord Carloway also set out the reasons for lodging a report, the first being to “provide the other side with greater notice of the evidence to be adduced” and the second being that it “may assist a party in adducing the evidence of his expert if that expert has his report to hand and is taken through it in easily digestible sections.”
The position in Scotland may soon become more in line with that in England and Wales. In their Report the SCJC included a chapter devoted to evidence in which they recommended that the default position in Scotland should be that parties be required to lodge a witness statement for any expert witness and that the written statement be taken as the expert’s evidence in chief, with oral evidence restricted to clarification of the report and cross-examination.
The Expert’s Duty to the Court
Rule 35.3 of the E&W Civil Procedure Rules states that an expert has an overriding duty to the court, which prevails over any duty to the party that has instructed and paid for the expert report. There is no equivalent written rule in Scotland, although in practice Scottish solicitors do alert experts to their duty to the court and experts tend to be well aware that they have such a duty.
The SCJC has proposed that the new Scottish civil procedure rules should follow the approach taken in E&W by setting out that an expert’s duty is to the court, in which duty overrides any obligation to the party who instructed and paid the expert witness. The SCJC is also considering the introduction of a code of practice for expert witnesses together with guidance as to the form of expert reports, which would bring Scotland further into line with English practice.
Joint Meetings and Joint Statements
Courts in E&W generally have a greater case management role than the Scottish courts and may instruct experts to hold joint meetings for the purpose of clarifying and if possible narrowing the points on which they disagree. The court can instruct that a joint statement be submitted to the court following the joint meeting, in which the experts are to set out any matters upon which agreement was reached and what issues remain in dispute. Notably, this statement goes to the court and not to the instructing parties, which is reflective of the role of experts, which is to assist the court. In E&W, the court can also direct that evidence on a particular point be given by one joint expert.
In Scotland there is generally far less active case management by the courts and parties are generally left to decide for themselves what is appropriate in terms of expert reports, whether or not the experts ought to meet to discuss their views, and if it would be appropriate to instruct a joint report. However, in Commercial Actions the judge has similar powers to those in E&W, and can order that expert reports be lodged and/or direct experts to meet “with a view to reaching agreement and identifying areas of disagreement, and may order them thereafter to produce a joint note, to be lodged in process by one of the parties, identifying areas of agreement and disagreement, and the basis of any disagreement.” The Commercial Court also has the power to itself appoint an expert on behalf of the court.
The SCJC considers that the power to require experts to confer in advance of the proof (trial), currently available to judges in Scotland’s Commercial Court, should be extended to all Scottish courts. If that is introduced it will bring Scotland closer to the procedure in E&W.
Hot tubbing, or the practice of expert witnesses giving evidence concurrently in response to questions posed by a judge, is a fairly common practice in E&W, whereas in Scotland it was not used until very recently. In 2015 in the case of SSE Generation Limited v Hochtief Solutions AG, a very complex construction dispute which ran in the Commercial Court of the Court of Session, Lord Woolman chaired a session of concurrent expert evidence in which six tunnelling experts gave evidence. Lord Woolman noted in his judgement that he had “found it an extremely valuable exercise” and one he would use again in future suitable cases. However, he noted that the exercise had been less successful in relation to questions of quantum than it had been in relation to liability. Hot tubbing has since been used in the Commercial Court in appropriate cases.
The SCJC has proposed that the power to order experts to give concurrent evidence be provided in all cases, not only in the Commercial Court.
Factual Evidence Provided to Experts
In E&W, witnesses to fact provide their evidence in chief in the form of a formal witness statement which is lodged with the court and intimated to the other side. In Scotland, formal witness statements remain the exception, with oral or parole evidence from witnesses at proof (trial) remaining the norm and the default position. In Commercial Actions the judge can, and almost invariably does, allow for written witness statements from witnesses who are amenable to providing evidence in that form, but in ordinary actions all witness evidence is given orally at proof (trial).
There is no obligation on a witness to provide advance notice of their evidence, but for those who are willing to do so Scottish solicitors will ask them the questions that will be put to them in court and take a note of their responses; this note is referred to as a ‘Precognition’. Precognitions are informal witness statements, which are generally not signed by the witness and are not lodged with the court or disclosed to other parties; they are purely for use by the solicitor in preparing their case.
Precognitions may be provided to an expert for the purpose of laying out the factual hypothesis upon which they are being asked to comment, but there is no guarantee that the evidence the witness provides in court will match what they have said to the solicitor and noted in the precognition. Care must therefore be taken in instructing an expert on the basis of precognitions.
For solicitors instructed in relation to negligence claims, including professional negligence, it should be noted that in Scotland the pursuer (claimant) should be in possession of a supportive expert report when the claim is raised. If the claim is raised in the Commercial Court the Pre-Action Protocol requires the disclosure of any expert report during pre-action correspondence. As the clock for prescription (limitation) only stops in Scotland on service of court papers on the defender (respondent) and Standstill Agreements are ineffective, it is important to keep in mind the need for an expert report in cases where time-bar may be an issue.
Given the recommendations of the SCJC it may be that we will see a narrowing of the gap between the procedural rules in Scotland and E&W in terms of expert evidence when new civil procedure rules are brought into force. However, the proposals made by the SCJC are merely recommendations at this stage and have now to go through a consultation period. Whether or not the recommendations are adopted some key differences will remain.
About the author Barbara Bolton is a partner in Commercial Dispute Resolution and regularly provides cross-border advice through Shepherd & Wedderburn’s cross-border referral initiative, Scots Counsel: https://shepwedd.com/expertise/scots-counsel
For a full Glossary of Scottish Litigation Terms see: https://shepwedd.com/sites/default/files/English_Scot tish_Litigation_Glossary_Scots_Counsel.pdf