Tuesday, June 4th, 2019

New Rules on Certification of Skilled Witnesses

In what is believed to be the first motion of its kind in the Court of Session, a pursuer enrolled a motion to prospectively certify skilled medical experts in terms of the new Rules 4.5 and 5.1(b) of the Act of Sederunt (Taxation of Judicial Expenses) Rules 2019 dealing with certification of skilled persons in respect of an action proceeding under Chapter 42A. 

Due to the novelty of these Rules, Lady Carmichael was asked to produce a brief Note setting out some guidance as it is fair to say they have caused some degree of concern for personal injury practitioners perhaps especially for those dealing with medical negligence claims. The somewhat anomalous situation whereby these motions require to be made seeking certification prospectively under Chapter 42A, but are not required under Chapter 43 (and the same position applies vis a vis Chapters 36A and Chapter 36 in the Sheriff Court PI rules) was not lost on Lady Carmichael nor was some of the rather unclear language used in the Rules.

The matter has been raised with the Lord President’s Secretariat and there was a recent meeting with the Scottish Government where the anomaly appears to have been acknowledged and is being looked at again. It remains to be seen whether any changes will be made, however.

The Act of Sederunt only relates to actions raised after 29 April. There were specific reasons why this motion was part of a motion before calling in this particular action. Normally, however, such a motion would have to be enrolled and intimated in the normal manner as it clearly relates to matters of substance.

Robin Cleland appeared for the pursuer. A copy of the Note can be found below.

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