Introduction

The case of Reverend Dr William JU Philip and Others vs. The Scottish Ministers and Others ([2021] CSOH 52) adjudicated by the Outer House of the Scottish Court of Session on May 19, 2021, presents significant considerations regarding the certification of expert witnesses and the awarding of additional expenses in judicial proceedings. The petitioners, led by Reverend Dr William JU Philip and others, sought an award of expenses against the respondents, including the Scottish Ministers and the Lord Advocate, as well as the certification of two experts and a substantial increase in taxation charges. The key issues revolved around the reasonableness and proportionality of employing expert witnesses and the justification of additional charges based on Rule 5.2(6) of the Taxation of Judicial Expenses Rules 2019.

Summary of the Judgment

The court addressed three primary petitions: an award of expenses, certification of experts Dr Martin Parsons and Dr Ian Blenkharn, and a request for a 100% increase in taxation charges. While the respondents did not contest the motion for expenses or the certification of Dr Parsons, they opposed the certification of Dr Blenkharn and the proposed increase in charges. The court, evaluating the reasonableness and proportionality of employing Dr Blenkharn, ultimately certified him as a skilled person. Regarding the additional charge, after assessing multiple factors under Rule 5.2(6), the court deemed a 50% increase in charges appropriate, rather than the 100% sought by the petitioners or the lower figure suggested by respondents.

Analysis

Precedents Cited

The court referenced the Webster v MacLeod 2018 SLT (Sh Ct) 429 case, focusing on the approach taken by the Sheriff Appeal Court concerning the predecessor to Rule 5.3. This precedent underscored the necessity of objectively assessing the reasonableness and proportionality when certifying expert witnesses, emphasizing that such certification should be justified based on the circumstances at the time of instruction.

Legal Reasoning

The judge meticulously dissected the criteria set forth in Rule 5.3 for the certification of skilled persons and Rule 5.2 for additional charges. In determining the certification of Dr. Blenkharn, the court assessed whether his employment was reasonable and proportionate given the urgent nature of the petitioners' concerns regarding the safety of opening places of worship amidst a public health crisis. The court concluded that employing an expert microbiologist was justifiable to support the petitioners' claim that their mitigation measures were appropriate.

In evaluating the request for additional charges, the court applied a granular approach to Rule 5.2(6), analyzing each factor—complexity of proceedings, skill and labor required, number of documents, circumstances of the proceedings, importance to the client, value involved, and efforts to settle. The court found that multiple factors, particularly the complexity and importance of the constitutional arguments, justified an increased charge. However, recognizing the overreach of a 100% increase, the court settled on a balanced 50% increase based on the cumulative impact of the relevant factors.

Impact

This judgment reinforces the judiciary's discretion in certifying expert witnesses and awarding additional charges, underscoring the necessity for such decisions to be anchored in the reasonableness and proportionality of the actions taken within the specific context of the case. Future litigants can anticipate a rigorous evaluation of expenses and expert certifications, particularly in cases involving complex and novel legal issues. Moreover, the setting of a 50% increase demonstrates a middle ground approach, allowing for substantial but not excessive recognition of increased responsibilities and complexities.

Complex Concepts Simplified

Rule 5.3 and Certification of Skilled Persons

Rule 5.3 of the Taxation of Judicial Expenses Rules 2019 outlines the criteria for certifying experts in court proceedings. Specifically, it requires that the individual is a skilled person and that their employment is reasonable and proportionate within the context of the case. Certification grants the petition to rely on the expert's testimony or reports, potentially impacting the court's understanding and decisions.

Taxation of Judicial Expenses Rules 2019 - Rule 5.2(6)

Rule 5.2(6) enumerates factors that the court must consider when determining whether to allow an increase in taxation of judicial expenses. These factors include the complexity of the case, the skill and labor required by the solicitor, the volume and significance of documents involved, the circumstances under which the proceedings are conducted, the importance of the case to the client, the value at stake, and the efforts made to settle the matter.

Certification of Experts

Certification involves formally recognizing an individual as a specialist whose expertise is relevant and valuable to a case. This process ensures that the expert's qualifications meet the standards required for their testimony or report to be considered authoritative in the judicial process.

Conclusion

The judgment in Reverend Dr William JU Philip and Others vs. The Scottish Ministers and Others underscores the Scottish courts' commitment to upholding fairness and proportionality in judicial expenses and expert certifications. By certifying Dr Ian Blenkharn and approving a 50% increase in taxation charges, the court acknowledged the nuanced demands of complex legal challenges and the critical importance of skilled legal representation. This decision sets a precedent for how courts may balance the necessity of expert involvement with the prudent management of judicial expenses, guiding future litigants in navigating the costs associated with intricate and high-stakes legal proceedings.