J.A. McClelland and Sons (Auctioneers) Limited v. I.R. Robertson and Partners Limited and Vexamus Water (Scotland) Limited [2009] CSOH 11

In this action the pursuers, operators of livestock markets, sought damages for losses resulting from the selection and provision of an effluent treatment system for a livestock market at Ballymena, Northern Ireland. The pursuers sued the first defenders, who are consulting civil engineers, for breach of an implied term of contract that they would exercise professional skill and care and the second defenders, who designed and manufactured the system, for breach of an implied term of contract that the system was fit for purpose. The action settled 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 which was opposed by the defenders. During the hearing a question 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. Here the court considered whether the Rule covered such witnesses who are employed to carry out investigations and provide reports with a view to enable parties to narrow the areas of dispute and whether, in this particular case, the motion was competent in respect of the "skilled" witness.