Outer House retrospectively certifies six expert witnesses instructed across two actions in respect of property defects

About this case:

• Citation:
  [2025] CSOH 108
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Douglas and Karen Spence raised an action for the sum of £1 million against David Graham, who had provided two Professional Consultant’s Certificates in connection with the property, after they were unable to recover anything from the developer owing to his insolvency. The defender opposed a motion to certify seven skilled persons whom the pursuers wished to call as experts; all bar one of whom were instructed in the pursuers’ previous action.

The case was heard by Lord Braid in the Outer House of the Court of Session, with Thomson KC appearing for the pursuers and Massaro, advocate, for the defender.

Unjustifiable windfall

In October 2020, the pursuers purchased a property in West Lothian from Mr Garry Walker, who had developed the property. The defender provided Mr Walker with two PCCs in the standard form issued by the Council of Mortgage Lenders, dated 27 September 2019 and 10 January 2020, certifying that the property had been constructed to a satisfactory standard and in general compliance with the drawings approved under the building regulations.

The pursuers alleged that the property contained numerous defects and obtained decree against Mr Walker in the sum of £500,000 plus expenses on the basis of his breach of contract. In the present action, they sought certification of seven skilled persons as expert witnesses, all but one of whom had been instructed in connection with the action against Mr Walker. None of the witnesses were ever certified as skilled persons during that action, and no recovery of charges had been sought. These witnesses provided reports on matters including the property’s septic tank, heating, insulation and damp-proofing, and overall structural integrity.

It was submitted for the defender that the pursuer was unjustifiably trying to pass on costs incurred in a different action. While certification of two of the experts was not opposed, it was not shown that it was reasonable to instruct any of the others for the purposes of this action. It was unsatisfactory to leave it to the auditor to decide whether charges had been unreasonably incurred, as contended for by the pursuers, as the auditor would take his lead from the court.

Senior counsel for the pursuers submitted that the correct approach was for the court to strive to achieve substantial justice. If certification were not granted, the charges could never be recovered under any circumstances, resulting in an unjustifiable windfall for the defender and the pursuers being denied substantial justice. The logical consequence of the defender’s argument being correct was that the pursuers ought to have instructed new experts specifically for this action, which made no sense.

Economy in litigation

In his decision, Lord Braid began by outlining the main issues: “There are two discrete issues: first, whether, in relation to each witness, certification should be granted at all; and second, if so, whether the pursuers have shown cause for not having applied for certification before the work was done. As for the first of those, I accept the pursuers’ submission that in order to succeed in their action, they will require to prove the existence of defects, and the cost of putting them right.”

He added: “Looking only to the future and applying an objective test, it is reasonable that expert witnesses be instructed to report on the existence and extent of the defects and, if necessary, to give evidence at proof. Note that the matter is not to be judged by consideration of whether the pursuers are likely to succeed in proving every fact that they set out to prove. For that reason, it is of no moment that the defender argues that he could not be expected to have identified certain of the defects. If the pursuers are wholly unsuccessful, then it will matter not a jot which witnesses have been certified, and which not. If they are unsuccessful in relation to part of their case, it will be open to the court to modify their entitlement to expenses in such manner as it thinks fit at the time.”

Considering whether certification could have effect across two actions, Lord Braid said: “Insofar as the instruction of these particular experts is concerned, it cannot possibly be a bar to their being instructed in this action that they were previously instructed by the same pursuers in a different action. So to hold would be to require the pursuers to have instructed a whole raft of new experts which would achieve the very opposite of economy in litigation, one underlying purpose of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019.”

He continued: “Even if reports were prepared for the purpose of, or in contemplation of, a different action, they might have a dual purpose. Still less can it be a bar to certification that some or all of the work was done by the expert in relation to a previous action but the report itself was prepared for the present one. As soon as it is accepted that reports are necessary for the present action, as they are, the simple question is whether, in the words of rule 5.3(5), the pursuers have shown cause for not having applied for certification before the work was done. On any view, the pursuers were entitled to instruct expert evidence before raising proceedings, when it was not possible to seek sanction, because the action was not in existence.”

Lord Braid concluded: “I should emphasise that the effect of this decision is not necessarily that the pursuers will be able to recover any or all of the costs of the reports in question. It will remain for the auditor to determine whether, as a matter of fact, the reports were prepared for the purposes of the present action, or in contemplation of it. That provides a further safeguard against any unfairness to the defender.”

The motion for certification was therefore granted in respect of six of the seven witnesses. In respect of the seventh, the motion was refused in hoc statu, but his certification could be considered of new if the pursuers provided additional motivation on his relevance in the present action.