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Essays in Conveyancing and Property Law

 | 
Frankie McCarthy
, 
James Chalmers
, 
Stephen Bogle

Professional Negligence in Principle and Practice

18. The Court and the Conveyancing Expert

Lady Paton

Texte intégral

A. The Changing Landscape

1The traditional litigation landscape once familiar to the conveyancing expert is undergoing considerable upheaval. The development of automated and electronic technologies, a question-mark over immunity from suit, and the recommendations in Lord Gill’s Scottish Civil Courts Review Report,1 are some of the changes bringing about a new and unfamiliar environment.

B. Automated and Electronic Technologies

  • 2 J C Mortimer, Rumpole for the Defence (1982) 108.

2Not every lawyer aspires to an automated and paperless world. John Mortimer possibly spoke for many when he observed through his fictional character barrister Horace Rumpole (habitué of the Old Bailey and the Uxbridge Magistrates Court):2

Things, I regret to have to say it, have not improved since those distant days, and many of the faults must be laid at the door of automation. Not only have witnesses changed [replaced, for example, by recording devices]. String quartets, which were once the pride of the tea room, have now been replaced by an abominable form of mechanical music. The toasting fork has given way to an alarming machine that fires singed bread at you like a minute gun. The comforting waitress in black bombazine has become a device that contrives to shoot a warmish and unidentifiable fluid into a plastic cup and over your trousers at the drop of a considerable sum of money. None of these engines is an improvement on the human factor, neither are trials made any easier by the replacement of the living witness with the electronic device.

  • 3 Scottish Government, The Digital Strategy for Justice in Scotland (2014).
  • 4 Something similar to the future envisaged by the Rt Hon Lord Justice Brooke, “The Courts and Judici (...)

3Nevertheless there is a current trend in the legal world seeking to achieve an automated electronic paperless environment. The Scottish Government has published a paper entitled The Digital Strategy for Justice in Scotland,3 setting out how digital technology will be used to transform the way in which justice services are delivered in Scotland. The government envisages fully “digitised justice systems” including digital warrants, digital recording of evidence, video-conferencing, and the creation of a secure digital platform to store all information relevant to a case. Cynics might predict that court hearings will soon consist of judges sitting alone surrounded by plasma screens, recording devices, and qwerty-keyboards, with a piece of software instead of a clerk of court, witnesses’ evidence taking the form of talking heads on-screen, productions flashing up on a split screen, and lawyers’ submissions being transmitted directly from offices or chambers by means of a system such as Skype, phone-conferencing, or Twitter.4

4That may be too gloomy a view. The judiciary in the Court of Session has expressly welcomed much of the government’s digital initiative. In an address at the launch of the Digital Strategy, Lady Dorrian described current problems being experienced in the courts, and possible digital solutions, pointing out inter alia that:5

Cases are becoming more complex, with a greater array of technical and forensic evidence that requires analysis and careful presentation in court. Video evidence needs time to be examined thoroughly. Witnesses who are cited for court may not turn up on the appointed day. There may be issues around the timely disclosure of evidence. All of these factors might be mitigated by the application of digital solutions – as evidence can be collected and shared electronically, for example, or witnesses reminded of their need to attend court by text or e-mail, as now happens. […]
In any modern society, the administration of justice must retain the trust and confidence of the people it serves. And it will only do that if it keeps pace with the times, and remains relevant to the experience of the people and organisations it serves. We are now in an era, according to research published earlier this month, when Britons spend more time using technology devices than they do sleeping. If people and businesses communicate instantly by e-mail, Skype, or Facebook, they will expect public services to do likewise. […]
[D]igital innovation will allow greater transparency in proceedings, make it easier for people to participate in the system – whether making applications, submitting documents, giving or providing evidence, paying fines – wherever they are and at a time that suits them. […]
Changes in technology and changes in procedures cannot happen in isolation – they must be accompanied by changes in the attitude and behaviours of those using the new technology. It is very encouraging that the Digital Strategy has been the product of wide-spread collaboration across the justice system; this suggests that there is a willingness to embrace change in all quarters, at least at the leadership level. It is vital that this willingness is spread further, and that is best done by making real – for all those involved – the benefits that innovation will bring.

5Certainly it must be acknowledged that a wealth of information can be stored, transported, and accessed by the use of computers and electronic technology. Pen-drives and USB sticks are becoming more common in court: thus pleadings, submissions, notes of appeal, notes of argument, case reports, statutes, rules of court and productions can be contained in an item measuring about 4cm by 2cm, easily portable and easily inserted into a computer, giving access at any time and any place to all these materials. Text-books, rule-books, bench-books, codes of conduct and other guidance can be accessed by a DVD disc, or directly online. Search and cut-and-paste facilities available on computers are very helpful to court-users. General electronic functions such as email and texting are undeniably useful, for everyone, and are currently being used for court work including solicitors’ firms enrolling ancillary motions in court cases. Thus the new technology, albeit not entirely welcomed by every generation of court-user, is currently being actively incorporated into the court system.

  • 6 Professors Stewart Brymer, George Gretton, Roderick Paisley and Robert Rennie (Professor Kenneth Re (...)
  • 7 R Rennie and S Brymer, Conveyancing in the Electronic Age (2008); S Brymer and I Davis, “Automated (...)
  • 8 Requirements of Writing (Scotland) Act 1995, ss9B (1) and (2), as introduced by the Land Registrati (...)
  • 9 J Irving, “Survival in the IT Age” 2000 JLSS 18-19.

6The “wide-spread collaboration across the justice system” referred to in Lady Dorrian’s address is already taking place in the world of conveyancing. For example, in October 2002 the Keeper of the Registers of Scotland consulted four conveyancing professors6 in a project which resulted in the digital “Automated Registration of Title to Land” (ARTL).7 Dispositions may be electronic, as may missives (fax or email and possibly text). Electronic signatures are now permitted.8 Since the coming into force of the Land Registration etc (Scotland) Act 2012, a title to land may never appear as a tangible deed: its provenance may be digital and it may remain digital throughout its life. For some lawyers, these developments may give rise to anxiety and nostalgia for the traditional working environment of documentary missives, parchment-like dispositions, storage in deed-boxes, title searches in the Register of Sasines, and face-to-face settlement meetings at solicitors’ offices during which deeds and cheques physically changed hands. But the new world is here, and the combination of a paperless court system and electronic conveyancing may mean that any conveyancing expert wishing to assist the court should be IT-literate,9 reasonably skilled in computers and electronic devices, familiar with current electronic conveyancing practices, and able to give evidence (supported by productions) by video-link. Thirty years ago, those skills and qualifications were not even contemplated, far less required of a conveyancing expert. Some experts might benefit from further training, and may find themselves experiencing a steep learning curve.

C. A Question-mark over Immunity from Suit

  • 10 [2000] QB 75 at 100.

7A further upset for conveyancing experts has arisen in the context of immunity from suit. For many years it has been a well-established principle that an expert witness taking part in court proceedings has civil immunity in relation to his evidence. As explained by the Court of Appeal in Stanton v Callaghan:10

(i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial, the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party’s claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed.

  • 11 Stair, Inst 4.1.5.

8That was the position in Scotland: the immunity enjoyed by expert witnesses was part of a greater immunity enjoyed by those involved in court cases.11

  • 12 [2011] UKSC 13; [2011] 2 AC 398.
  • 13 R Rennie, S Brymer and D Reid, “The End of Immunity for Expert Witnesses?” 2012 Scottish Law Gazett (...)
  • 14 Thus overruling Stanton v Callaghan (n 10).
  • 15 [1905] AC 480.
  • 16 Rennie et al (n 13).
  • 17 R Jackson and J Powell, Professional Liability (7th ed) by J Powell and R Stewart (2011) para 2-110 (...)
  • 18 Including the Earl of Halsbury LC in Watson v McEwan (n 15); Salmon J in Marrinan v Vibart [1963] 1 (...)

9However the law has changed, certainly in England. The Supreme Court in Jones v Kaney,12 by means of what might be seen as judicial legislation,13 decided by a majority of three to two that an expert witness giving evidence in court should not be immune to an action for professional negligence.14 Lord Hope and Lady Hale dissented. Lord Hope saw no principled basis for removing immunity from expert witnesses. He relied upon the Scottish case Watson v McEwan,15 pointing out that Watson remained binding in Scotland, and that witness immunity in Scotland was a devolved matter. Thus the accepted view is that the decision in Jones is not binding in Scotland, where Watson remains binding until appropriate legislation is enacted by the devolved Parliament.16 While some may agree with Lord Phillips, who led the majority in the Supreme Court, that experts will not be discouraged from giving opinions or evidence if immunity is removed,17 many would disagree.18 Accordingly the approach adopted by the majority of the Supreme Court in Jones v Kaney must bring a frisson of apprehension to those in Scotland offering their services as expert witnesses, even although the effect of the decision has not hitherto come north of the border.

D. Case Management and the Conveyancing Expert

  • 19 Rules of the Court of Session 1994, Ch 43.
  • 20 Report of the Scottish Civil Courts Review (n 1), Ch 5, para 48.

10Following upon the success of the new rules of court for personal injuries actions,19 there has been general recognition that a similar case management approach would be beneficial in other types of cases. As is noted in Lord Gill’s Report of the Scottish Civil Courts Review:20

We are satisfied that, with the exception of certain specified types of action, all actions in the Court of Session and the sheriff court should be subject to judicial case management. On the lodging of defences, a case should be allocated to the docket of a particular judge or sheriff. A case management hearing should be fixed shortly thereafter. This would normally take place by means of a telephone conference call. Parties would make submissions as to further procedure and any other matters arising, such as disclosure of documents. The judge or sheriff would identify the factual and legal issues in the case and decide what form of case management is most appropriate. In complex cases this may take the form of active judicial case management akin to the commercial model... with further case management hearings as the case progresses. In straightforward cases the court might decide that a timetable and related orders akin to the case-flow procedure under Chapter 43 would be appropriate. In that event, no further case management hearings would be required. In certain cases a mixture of these techniques would be appropriate.

  • 21 A L Stewart, “Evidence,” in The Laws of Scotland: Stair Memorial Encyclopaedia, Reissue (2006) para (...)
  • 22 For example, one expert might seek to exert pressure on the other: cf Jones (n 12).
  • 23 Jones (n 12), para 156.

11One outcome of increased case management might be the ordering of experts to hold discussions, exchange reports and/or prepare a minute of admissions or a joint statement.21 Thus the modern conveyancing expert should be prepared to participate in such a meeting, treading the fine line between fulfilling his duty to the court while protecting his client’s interests (a task made more difficult by being in a private consultation without the immediate supervision of the presiding judge.)22 As Lord Hope commented in Jones v Kaney:23

[I]t is plain that the paid expert owes duties to the client by whom he is being paid. If he agrees for a reward to prepare a report and to present himself in court to give evidence, he is obliged to do those things and to take reasonable care when he is doing so. He must make the necessary investigations and preparations for the giving of that evidence. Nevertheless when it comes to the content of that evidence his overriding duty is to the court, not to the party for whom he appears. His duty is to give his own unbiased opinion on matters within his expertise. It is on that basis that he must be assumed to have agreed to act for his client. It would be contrary to the public interest for him to undertake to confine himself to making points that were in the client’s interest only and to refrain from saying anything to the court to which his client might take objection.

E. The Conveyancing Expert and Alternatives to Court

  • 24 Report of the Scottish Civil Courts Review (n 1), ch 7, para 20-22.

12Lord Gill’s Report of the Scottish Civil Courts Review notes that:24

ADR [alternative dispute resolution] in general provides a valuable way in which the burden on the civil courts can be lifted. More importantly, it provides an opportunity for dispute resolution in cases where the confrontational process of litigation is inappropriate. It is therefore a valuable complement to the work of the courts. […]
Mediation may, in some cases, offer advantages over litigation, particularly in cases where it is important to preserve relationships. […]
[Quoting, with approval, Dame Hazel Genn] “ADR cannot supplant the machinery of justice precisely because, in civil cases, the background threat of litigation is necessary to bring people to the negotiating table ... a well-functioning civil justice system should offer a choice of dispute resolution methods.”

  • 25 R Rennie, “Boundary Ddisputes Rrevisited” 2013 SLT (News) 189-94, at 193.

13Conveyancing disputes concerning boundaries, real burdens, titles, servitudes, prescriptive possession and other similar problems, are classic examples of disputes which respond well to these flexible, less formal, dispute-resolution procedures. The opinion of a respected conveyancer will frequently resolve the issues, without the need to go to court. Meetings and joint consultations can assist in achieving a mutually acceptable outcome. By contrast, formal court proceedings can be protracted, wearing, and expensive, as Rennie has pointed out:25

[E]ven if [clients] win, there will be expense involved on an extrajudicial basis… If matters go to court [it should be emphasised to clients] that civil litigation is for the very rich or very poor and that if they lose they will be liable not only for their own expenses both judicial and extrajudicial but for the other side’s judicial expenses.

  • 26 See, for example, D Cusine, Conveyancing Opinions of JM Halliday (1992); R Rennie, Opinions on Prof (...)

14Thus a valuable ADR service is currently being provided by practising conveyancers, professors, and other members of academic staff.26 The result is not only the satisfactory resolution of many disputes, but also a great saving of resources, both the courts’and the parties’. In this context, the conveyancing expert can be regarded as, in effect, assuming the mantle of “the court.”

F. In a Changing Landscape, some Classic Principles Remain

15It is some comfort that, amidst all the changes and upheavals, certain well-established principles continue to apply in relation to the role of the conveyancing expert in court.

(1) Assistance for the court

  • 27 Even although instructed and paid by one party. See however the reservations expressed in F Davidso (...)
  • 28 1953 SC 34.
  • 29 Davie (n 28) at 40.

16Once in court, the conveyancing expert is not the final arbiter. His role is to provide assistance to the judge.27 As Lord Justice-Clerk Cooper emphasised in Davie v Magistrates of Edinburgh28 (a case involving scientific evidence):29

Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the court… Their duty is to furnish the judge or jury with the necessary… criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The… opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the judge or jury. In particular the bare ipse dixit of [an expert], however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.

  • 30 See, for example, Leeds & Holbeck Building Society v Alex Morison & Co (No 2) 2001 SCLR 41. The par (...)
  • 31 Assessor for Lothian Region v Wilson 1979 SC 341; Armour v Thyssen Edelstahlwerke AG 1986 SLT 452, (...)
  • 32 Davie (n 28).

17The court frequently has to choose between the evidence of two expert witnesses.30 But the court is also entitled reject the evidence of both,31 and further is not bound to accept the conclusions of one party’s expert witness simply because no counter evidence was led by the other party.32

(2) Standing and experience

  • 33 In the Law Society of Scotland Code of Practice for expert witnesses, available at http://www.exper (...)
  • 34 Evidence at para 11.13.

18It is essential that the expert’s qualifications and experience are established, to enable the court to be satisfied that the witness is truly skilled and experienced in the relevant area.33 Davidson explains that:34

  • 35 For recent examples of expert evidence tendered but ruled inadmissible, see Kennedy v Cordia (Servi (...)

It is for the court to be satisfied that a particular individual tendered as an expert does have sufficient relevant expertise to assist the court, and if this is not established, the evidence of that witness is not admissible, even if the opposing party raises no objection.35

  • 36 Civil Procedure Rules 1998, r35 (see Davidson, Evidence para 11.31).
  • 37 See, for example, the leading case of Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579, (...)
  • 38 2014 JC 33.
  • 39 Hainey (n 38) para 49 and 52.

19In some jurisdictions, for example England36 and the USA,37 there is procedure whereby the judge operates as a “gatekeeper” in that, during some procedure or hearing prior to the proof or trial, he determines inter alia whether or not a person who is to be invited to give evidence as an expert has the necessary expertise and qualifications and what areas of evidence may be addressed. That procedure has not yet reached Scotland. In Scottish courts, the exercise of “setting up” an expert is normally carried out during the proof (or trial), by the lodging of the witness’s curriculum vitae, and the leading of evidence from the witness about his qualifications, experience, publications and particular expertise. A recent judicial consideration of this practice can be found in Hainey v HM Advocate38 where Lord Clarke observed:39

While the trial judge does not act as a gatekeeper... he has a continuing role as referee, or umpire, throughout the trial to ensure that it is conducted fairly and that evidence from a person claiming specialist knowledge and expertise, who clearly does not have such expertise and knowledge, is disregarded by the jury.[…]
It is to be noted that in England and Wales, the rules of procedure require that where there is to be medical evidence led and relied upon it should be considered at a pre-trial hearing. ‘The pre-trial process is of particular importance. Without robust pre-trial management, the real medical issues cannot be identified and, absent such identification, a judge is unlikely to be able to prevent experts wandering into unnecessary, complicated and confusing details; accordingly, a judge who is to hear a case of this type should deal with all pre-trial hearings, save for those in which no issue of substance arise. By the time a trial starts, the essential medical issues which the jury have to resolve, and the expert evidence, identifying the source on which the evidence is based, should all be clear’ (see Archbold,
Criminal Pleading, Evidence and Practice 2012, at 1380).
It may be that the time has come for some thought to be given to providing for such an approach in Scotland in such cases.

  • 40 There may be finely-balance decisions in this context: see, for example, McTear v Imperial Tobacco (...)

20While a proof before a single judge concerning a conveyancing matter presents a rather different context from a trial before a jury involving complex medical and forensic evidence, these dicta emphasise the importance of appropriate qualifications and/or experience, and the limiting of the evidence to the relevant area of expertise.40

(3) Presence in court

  • 41 Although there are differing views on this matter: see, for example, Davidson, Evidence, para 11.26 (...)

21A conveyancing expert (or indeed any expert) should not be present in court during another expert’s evidence. If it is thought that an expert would benefit from hearing certain witnesses to fact, a motion should be made seeking the judge’s permission for the expert to sit in court during that evidence. If it is found that an expert has per incuriam been present in court without permission listening to evidence given by others, that may seriously undermine his own evidence.41

(4) Duties

  • 42 [1993] 2 Lloyd’s Rep 68 at 81.

22Key guidelines for any professional appearing in court to give evidence as an expert witness have been usefully summarised by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No1)42 as follows (omitting case references):

The duties and responsibilities of expert witnesses in civil cases include the following:

  1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. […]

  2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.... An expert witness in the High Court should never assume the role of an advocate.

  3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. […]

  4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

  5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.... In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

  6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay, and when appropriate to the court.

  7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports, or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.

  • 43 Code of Practice (n 33).

23These principles are to a large extent echoed in the Law Society’s Code of Practice for expert witnesses,43 which provides inter alia:

Independence

11. Experts will bear in mind that:

(i) When giving evidence at court, the role of ... an expert witness, is to assist the court and remain independent of the parties.

12. Experts will disclose to [instructing] solicitors at the start of each project any personal or financial or other significant circumstances which might influence work for the client in any way not stated or implied in the instructions, in particular:

  1. Any directorship or controlling interest in any business in competition with the client;

  2. Any financial or other interest in goods or services (including software) under dispute;

  3. Any personal relationship and/or professional relationship, and the nature thereof, with any individual involved in the matter;

  4. The existence but not the name of any other client of the expert with competing interests;

  5. Whether the expert has worked with the expert instructed by the opposing party (if known).

13. Any actual or potential conflict of interest must be reported to the solicitor as soon as it is raised or becomes apparent and the assignment must be terminated.

  • 44 Hawthorne v Anderson [2014] CSOH 65; and see too Liverpool Catholic Archdiocese Trs v Goldberg (No (...)
  • 45 Hawthorne (n 44) at para 84 and 85.

24Despite the existence of such guidelines, difficulties can arise. A recent action for damages for alleged professional negligence44 illustrates a failure fully to comply with principles 12 (c) and 13 of the Code of Practice. In that case, property consultants and architects/planners gave evidence in court concerning the loss which the pursuers alleged they had suffered. Lord Woolman felt obliged to make the following observations:45

During cross-examination, Mr A [of Keppies, Glasgow, Architects and Planners] disclosed that although there is no formal association, his firm has had links with the defenders since 2004. The name “Keppie” appears on the main door of the defenders’ offices. Keppie has used rooms within to hold meetings. The defenders’ website states that Keppie is able to offer planning services.
Individuals must think carefully before accepting instructions to act as an expert witness. The court expects them to be scrupulously impartial. In this instance, Mr A’s links with the defenders should have been notified at a much earlier stage.

  • 46 McTear (n 40).
  • 47 Pierce v HM Advocate 1981 SCLR 783.
  • 48 Pierce (n 47), quoted with approval by Lord Caplan in Elf Caledonia Ltd v London Bridge Engineering (...)

25Another illustration of a problem (in effect a breach of the third proposition of The Ikarian Reefer ) was referred to in McTear v Imperial Tobacco Ltd46 at para 5.10. An expert witness in a criminal trial47 had made an assumption which was neither justified nor disclosed to the court. Lord Justice General Emslie stated that, as a result, the witness had been discredited. He observed:48

This was, in our judgment, conduct on the part of an expert witness which demonstrated a complete misunderstanding of the role of scientific witnesses in the courts, and a lack of the essential qualities of accuracy and scientific objectivity which are normally to be taken for granted.

G. Conclusion

26In conclusion, much is expected of both the court and the conveyancing expert in the twenty-first century. Neither can afford to rely solely upon traditional or well-established practices or technology. Each must acquire new competences which were not even envisaged in the latter part of the twentieth century, yet each must retain and abide by the well-tried principles and practices expected of both court and expert when an expert witness gives evidence. The result is a challenging but fascinating and ever-developing area of the law.

Notes

1 Report of the Scottish Civil Courts Review (2009), available at http://www.scotcourts.gov.uk/about-the-scottish-court-service/the-scottish-civil-courts-reform

2 J C Mortimer, Rumpole for the Defence (1982) 108.

3 Scottish Government, The Digital Strategy for Justice in Scotland (2014).

4 Something similar to the future envisaged by the Rt Hon Lord Justice Brooke, “The Courts and Judiciary in 2024” in Now and Then, A Celebration of Sweet & Maxwell’s Bicentenary (1999) Ch 8.

5 Victoria Quay, Edinburgh, 20 August 2014, available at http://www.scotland-judiciary.org.uk/26/1301/Speech-by-Lady-Dorrian-at-the-launch-of-The-Digital-Strategy-for-Justice-in-Scotland

6 Professors Stewart Brymer, George Gretton, Roderick Paisley and Robert Rennie (Professor Kenneth Reid was not involved because he was at that time a full-time commissioner with the Scottish Law Commission). See S Brymer, G Gretton, R Paisley and R Rennie, “Automated Registration of Title to Land” (2005) JR 201-50.

7 R Rennie and S Brymer, Conveyancing in the Electronic Age (2008); S Brymer and I Davis, “Automated Registration of Title to Land (‘ARTL’)” in R Rennie (ed), The Promised Land: Property Law Reform (2008) Ch 9; G L Gretton and K G C Reid, Conveyancing, 4th edn (2011) para 8.23-8.25.

8 Requirements of Writing (Scotland) Act 1995, ss9B (1) and (2), as introduced by the Land Registration etc. (Scotland) Act 2012, s97 (2). For discussion, see R Rennie and S Brymer, “A Bold Step Forward” 2012 JLSS 32-33; R Rennie and S Brymer “E-missives: What Now?” 2014 JLSS 18-19.

9 J Irving, “Survival in the IT Age” 2000 JLSS 18-19.

10 [2000] QB 75 at 100.

11 Stair, Inst 4.1.5.

12 [2011] UKSC 13; [2011] 2 AC 398.

13 R Rennie, S Brymer and D Reid, “The End of Immunity for Expert Witnesses?” 2012 Scottish Law Gazette 37-40.

14 Thus overruling Stanton v Callaghan (n 10).

15 [1905] AC 480.

16 Rennie et al (n 13).

17 R Jackson and J Powell, Professional Liability (7th ed) by J Powell and R Stewart (2011) para 2-110; Rennie et al, “The End of Immunity” (n 13), although the authors went on to identify a potential problem as follows: “If… the evidence of the expert for the client [is] clearly rejected by the court, the likelihood is that the client will be found liable in expenses. One hopes that the removal of immunity (should it ever come to Scotland) would not then result in a subsequent claim against the expert on the losing side. If that were the case, would we all then be hunting for an elusive super expert able to say that no expert of ordinary competence could ever have given that particular opinion?”

18 Including the Earl of Halsbury LC in Watson v McEwan (n 15); Salmon J in Marrinan v Vibart [1963] 1 QB 234 at 237; Lord Wilberforce in Roy v Prior [1971] AC 470 at 480; Simon Brown LJ in Silcott v Commissioner of Police of the Metropolis (1996) 8 Admin LR 633 at 637; Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 at 214; and Lord Hope in Jones (n 12) at para 165: “It is one thing to be liable to a wasted costs order at the instance of the court itself, or to proceedings by a professional body for professional misconduct. It is quite another to be at risk of worthless but possibly embarrassing and time-consuming proceedings by a disgruntled and disaffected litigant in person.”

19 Rules of the Court of Session 1994, Ch 43.

20 Report of the Scottish Civil Courts Review (n 1), Ch 5, para 48.

21 A L Stewart, “Evidence,” in The Laws of Scotland: Stair Memorial Encyclopaedia, Reissue (2006) para 179; and see the procedure adopted in Jones (n 12).

22 For example, one expert might seek to exert pressure on the other: cf Jones (n 12).

23 Jones (n 12), para 156.

24 Report of the Scottish Civil Courts Review (n 1), ch 7, para 20-22.

25 R Rennie, “Boundary Ddisputes Rrevisited” 2013 SLT (News) 189-94, at 193.

26 See, for example, D Cusine, Conveyancing Opinions of JM Halliday (1992); R Rennie, Opinions on Professional Negligence in Conveyancing (2004).

27 Even although instructed and paid by one party. See however the reservations expressed in F Davidson, Evidence (2007) para 11.27; and the views stated in I Macphail, Evidence (1987) at para 17.27: “It is sometimes maintained that the system whereby in adversary procedure each party adduces its own expert evidence is objectionable … In [certain] countries … the court is permitted to select experts to inform it of their opinion based on their own particular knowledge and experience. Recently, in countries whose practice is based on an adversary rather than an inquisitorial system, the question whether the device of the court expert should be adopted has been widely discussed. It is not generally employed in Scotland, where conflicts of opinion between experts are adjudicated upon frequently and apparently without embarrassment by both judges and juries. (Footnote 90: A rare example, if not a unique case [of a court expert] is Irvine v Powrie’s Trs 1915 SC 1006, where the professor of chemistry in Edinburgh University was appointed by the court for the limited purpose of supervising the parties’ experts while they removed specimens of paper and ink from a registered deed which the pursuer sought to reduce on the ground of forgery.)”

28 1953 SC 34.

29 Davie (n 28) at 40.

30 See, for example, Leeds & Holbeck Building Society v Alex Morison & Co (No 2) 2001 SCLR 41. The party bearing the onus of proof may fail if a judge is unable to decide between conflicting expert accounts: Pickford v Imperial Chemical Industries plc [1998] 1 WLR 1189, Lord Hope at page 1200A-B.

31 Assessor for Lothian Region v Wilson 1979 SC 341; Armour v Thyssen Edelstahlwerke AG 1986 SLT 452, 1989 SLT 182 (IH); Beaton v HM Advocate 1993 JC 35 at pages 39H-40A.

32 Davie (n 28).

33 In the Law Society of Scotland Code of Practice for expert witnesses, available at http://www.expertwitnessscotland.info/codepract.htm, potential expert witnesses are warned inter alia that: “2. Instructions should be accepted only in matters where the expert (a) has the knowledge, experience, expertise, qualifications, or professional training appropriate for the assignment.” Note however that professional qualifications are not always essential: Davidson, Evidence para 11.12.

34 Evidence at para 11.13.

35 For recent examples of expert evidence tendered but ruled inadmissible, see Kennedy v Cordia (Services) LLP [2014] CSIH 76 (evidence from a health and safety expert ruled inadmissible in a slipping on ice case); Snowden and Jennings v HM Advocate [2014] HCJAC 100 at paras 18, 44 and 67 (evidence from a senior lecturer in psychology ruled inadmissible in the context of identification).

36 Civil Procedure Rules 1998, r35 (see Davidson, Evidence para 11.31).

37 See, for example, the leading case of Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579, discussed in Davidson, Evidence para 11.15-11.17.

38 2014 JC 33.

39 Hainey (n 38) para 49 and 52.

40 There may be finely-balance decisions in this context: see, for example, McTear v Imperial Tobacco Ltd 2005 2 SC 1, para 5.15-5.18; Main v McAndrew Wormald Ltd 1988 SLT 141 (medical witnesses held entitled to refer to published papers by epidemiologists, although not themselves epidemiologists).

41 Although there are differing views on this matter: see, for example, Davidson, Evidence, para 11.26; A L Stewart, “Evidence,” in The Laws of Scotland: Stair Memorial Encyclopaedia, Reissue (2006) para 174.

42 [1993] 2 Lloyd’s Rep 68 at 81.

43 Code of Practice (n 33).

44 Hawthorne v Anderson [2014] CSOH 65; and see too Liverpool Catholic Archdiocese Trs v Goldberg (No 3) [2001] 1 WLR 2337 at page 2340, where the court refused to admit the evidence of an undoubted expert who was also a long-standing friend of the defendant

45 Hawthorne (n 44) at para 84 and 85.

46 McTear (n 40).

47 Pierce v HM Advocate 1981 SCLR 783.

48 Pierce (n 47), quoted with approval by Lord Caplan in Elf Caledonia Ltd v London Bridge Engineering Ltd, 2 September 1997, unreported at 225, referred to by Lord Nimmo Smith in McTear (n 40) at 139.

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