Asking an expert can be the most sensible option, writes Alistair Dean
I was involved in a Sheriff Court case recently where the parties agreed to remit certain matters to a “person of skill”. It has been part of the fabric of Scottish litigation for a very long time, and is specifically provided for in the Sheriff Court rules. I had to think long and hard to remember when that last happened with one of my cases. Once? Twice? Certainly no more than that. I think it’s often overlooked.
In the Sheriff Court, either party can ask the court to appoint a person of skill to “report on” any factual matter. If the Court approves, the person of skill reports to the court in terms of the remit. Fair enough. That report may well help the court. It’s seldom required, however, because more often than not, if a party wants an independent expert to carry out an inspection and report, the other party is unlikely to object.
The more interesting provision is where the parties jointly agree to ask the court to appoint a person of skill to report on something. In those circumstances, the rules say that the person’s decisions is “final and binding”. In other words, the role here is not so much to assist the court, but to remove certain matters from judicial enquiry altogether.
Let me give you an example, within the ever-litigious construction industry. A builder builds a house and seeks payment. The owner offers only partial payment, on the basis that there are 100 defects. The builder says that the defects are exaggerated. The builder instructs an independent expert. The owner instructs an independent expert. They say completely different things. One expert says that the house is terrible and it will cost £50,000 to put it right. The other expert says that at most, the remedial costs are £5,000.
This is an extreme example, but not that extreme. It’s a difficult job for a Sheriff: going through 100 issues, hearing from one expert, hearing from another expert, and then taking a view on each one. That’s the very essence of judicial determination though, and it can’t be easy. Might it not be better (depending on the nature of the case, obviously) to have a court-appointed expert decide these issues once and for all? There is certainly an attraction in it. The person appointed will go to the property, and make a decision based on his or her experience. It just makes a lot of sense.
There are limits, obviously, to the extent of the remit, and there can be problems if one of the parties believe that the person has failed to exhaust his/her remit. It would be unusual for both parties to agree for the person to decide on matters of credibility, on the basis that courts are more experienced at undertaking that particular exercise.
So the question is: why does it not happen more often? I don’t pretend to know the answer, but it may have something to do with a lawyer’s natural reluctance to agree to something outwith the court process, which is “final and binding”. Maybe that goes against a litigator’s instinct. A court should make the decisions shouldn’t it? It’s the same mind-set which deters lawyers from agreeing to remit a dispute for expert termination, and in doing so, removing it from the judicial process altogether.
I think lawyers can get too caught up in this mindset. I believe the modern litigator needs to think laterally when approaching a dispute. As part of that I would like to see more remits to skilful people. After all, if the question is: “Does the rybat adjacent to the architrave on the south elevation require to be re-pointed?” the next obvious question is – who is best placed to answer that?
• Alistair Dean is principal with ADLP and a solicitor advocate, www.adlp.co.uk