JA McClelland & Sons (Auctioneers) Ltd v IR Robertson & Partners Ltd & Anor

[2] On 12 September 2008 I allowed parties a eight day proof of their averments which was scheduled to commence on 13 January 2009 . Parties settled the action and the pursuers enrolled a motion for the certification of skilled witnesses under Rule of Court 42.13 and for an additional fee under Rule 42.14. During the hearing of that motion, which was opposed by the defenders, an issue arose as to the competency of the court certifying a skilled person whom the pursuers had not proposed to call as a witness and whom they had not included in their witness list under Rule 47.12.

may be allowed if a party has, at any time before the diet of taxation, enrolled a motion for the name of that witness to be noted in the minute of proceedings in the cause.

(2) Subject to paragraph (3), where it is reasonable in any cause to employ a skilled person to make investigations or to report for any purpose, any charges for such investigations and report and for any attendance at any proof or jury trial shall be allowed in addition to the ordinary witness fee of such person at such rate as the Auditor shall determine is fair and reasonable.

(3) The Auditor may make no determination under paragraph (2) or (2A) unless the court has, on granting a motion made for the purpose, before or at the time at which it awarded expenses or on a motion enrolled at any time thereafter but before the diet of taxation -

(aa) certified that it was reasonable to employ that person to make investigations or to report; and