RCS 47.12 Remits in Dilapidations: Court-Appointed Expert as Reporter, Not Quasi-Arbitrator

1. Introduction

In HFD Glasgow 3 Limited v Student Loans Company Limited [2026] CSOH 40, the Outer House (Commercial Court) addressed how far the court can go—without party agreement—when remitting disputed dilapidations issues to an expert under the Rules of the Court of Session.

The pursuer (landlord) and the defender (former tenant) were in dispute about alleged breaches of lease repairing obligations at lease expiry (December 2023) for commercial premises at 100 Bothwell Street, Glasgow. A proof before answer would be expensive and lengthy. Both parties wished to avoid probation and have a surveyor determine factual issues using a Scott Schedule, but they could not agree the remit’s terms.

The core issues were: (i) the competency and proper legal basis for a court-ordered remit where the parties disagree on terms; (ii) the scope of permissible questions and powers under RCS 47.12(2)(i); (iii) whether the expert could adopt an inquisitorial, evidence-gathering role; (iv) how to handle burden-of-proof concerns; (v) what materials the expert should consider; (vi) how to obtain costings and specialist input; and (vii) whether recovery should be ordered of a tenant-held “walk-through” video survey.

2. Summary of the Judgment

Lord Lake held that a remit was competent under RCS 47.12(2)(i) (appointment of an expert to examine evidence on behalf of the court and report), and the remit must be confined to that function. The court:

  • Adopted a structured, Scott Schedule-linked remit to determine (a) whether wants of repair existed at expiry, (b) what remedial works were necessary, and (c) the reasonable costs at expiry.
  • Included high-level guidance on the meaning of the relevant repair standard, while rejecting a remit that would delegate lease interpretation to the expert.
  • Rejected a remit that would give the expert inquisitorial powers to interview persons or require additional evidence/submissions directly from the parties; instead, any need for more information must be raised with the court.
  • Allowed for third-party specialist assistance (e.g., quantity surveying; mechanical and electrical expertise) but via requests to the court.
  • Declined to hard-code “burden of proof” mechanics (such as “if uncertain, treat as nil”), holding the questions’ framing was sufficient.
  • Refused (in hoc statu) the pursuer’s motion to recover the defender’s video survey, but left open renewal if the court-appointed expert later identifies a gap in the existing photographic record.

The court issued draft terms in an Annex and put the matter out By Order to record agreement or hear further submissions, recognising the final remit did not exactly match either party’s draft.

3. Analysis

3.1 Precedents Cited

(a) HFD Management Services LLP Family Pension Trust v Apleona HSG Limited [2023] CSOH 15

This case was relied upon by the pursuer as an example of a practical, court-sanctioned remit in dilapidations where the expert is permitted to perform the evaluative task without excessive prescription (“micro-management”). In [2026] CSOH 40, the court accepted the value of established remit models—particularly remits that map determinations to the Scott Schedule—while still insisting on the limits imposed by the specific empowering rule (RCS 47.12(2)(i)).

(b) Rutland Court Real Estate v Anderson Strathern LLP [2025] CSOH 25

This was a central comparator. It supported two propositions adopted (in modified form) here:

  • Specialist input is sometimes indispensable (e.g., quantity surveying costings), but the mechanism matters—Lord Lake followed the “request to court” model rather than empowering the reporter to appoint and run a free-standing process.
  • The case also contained Lord Sandison’s observation (noted by Lord Lake) that it might not be beyond the court’s powers to impose a fact-determination process other than oral evidence. Lord Lake did not treat that as a licence to create an “expert determination” regime under RCS 47.12(2)(i); instead, he anchored the remit to the text and purpose of paragraph (i).

(c) HFD Glasgow 3 Limited v Student Loans Company Limited [2025] CSOH 101

Lord Lake’s earlier opinion on lease interpretation provided the legal backdrop: the present decision was procedural and remedial, seeking an efficient mechanism to resolve factual dilapidations disputes after interpretation issues had already been addressed judicially. The present opinion is careful not to reallocate interpretive questions to the expert reporter.

3.2 Legal Reasoning

(a) Competency: Why RCS 47.12(2)(i) Matters

The parties suggested competency could rest either on RCS 47.12(2)(i) or the “catch-all” power in RCS 47.12(2)(o). The court held competency was clear under (i) and expressed reluctance to use (o) to construct a broader, free-form power that would render (i) redundant. This is a classic interpretive move: a specific provision should not be undermined by an expansive reading of a general one.

(b) Defining the Proper Scope: Fact-Finding, Not Contract Construction

The court framed the remit around three fact-driven questions keyed to the Scott Schedule: existence of wants of repair; necessity (in whole or part) of remedial works; and reasonable costs at expiry.

Crucially, the court accepted that the expert would inevitably need to understand “the state of repair the building ought to have been in,” which is informed by the lease. But the court rejected wording that would effectively invite the expert to decide lease meaning. The compromise was to include high-level guiding principles about repair standards—deliberately general and not tailored as a complete substitute for contractual interpretation.

(c) Guardrails Against “Expert Determination” by Another Name

The defender’s concern was that the pursuer’s approach amounted to private-law expert determination (akin to a binding adjudication), rather than a court-facing report. Lord Lake’s reasoning draws a firm procedural boundary:

  • The RCS 47.12(2)(i) expert is appointed “on behalf of the court” to examine evidence and report, not to run an autonomous evidential inquiry.
  • Conferring powers to interview persons or compel/solicit fresh submissions and evidence would transform the exercise into a court-authorised inquiry—a “quasi-arbitration”—which is not justified without party agreement and is not “envisaged” by the rule.

That reasoning supplies a practical test for future cases: if the proposed remit makes the expert the primary manager of evidence-gathering and adversarial engagement, it is likely to drift beyond RCS 47.12(2)(i).

(d) Burden of Proof: Avoiding Over-Engineering the Remit

The defender sought an express mechanism requiring “NIL” valuation where the expert felt unable to assess due to insufficient information (effectively baking in a burden-of-proof default against the pursuer). The court declined, holding the questions’ structure already placed the practical onus on the pursuer to establish wants of repair and necessary works. Adding “if uncertain, treat as nil” provisions would complicate the process and potentially distort the reporter’s evaluative role.

(e) Evidential Inputs: Productions Yes; Pleadings No

The remit directed the expert to consider the lease, the Scott Schedule, and lodged productions including photographs, limited affidavits explaining photographs, and party expert reports. The court excluded pleadings as unnecessary for the factual determinations and because they raise legal issues not required for the reporter’s task. This reflects a clean separation between:

  • Evidence of condition (productions, photos, explanatory affidavits), and
  • Legal disputation (pleadings), reserved for the court.

(f) Handling Unknowns: Requests Back to Court

To prevent the process stalling, the court built in a controlled escape valve: if the reporter needs clarification of lease obligations, guidance, or further information/evidence, the request must go to the Clerk of Court, enabling the court to decide whether and how any additional material should be provided. This maintains judicial control and procedural fairness, while still permitting the remit to function effectively.

(g) Third-Party Expertise: Necessary, But Court-Mediated

The court recognised that a building surveyor may need cost input from a quantity surveyor and potentially specialist views on mechanical and electrical plant. But—consistent with the “no quasi-arbitration” principle—any third-party assistance is to be sought via the court. This preserves transparency and ensures both parties have clarity on the basis of costings.

(h) Inspection Despite Post-Lease Works

Both parties agreed inspection should occur even though the premises had changed. The court required at least one inspection, indicating that an inspection may help contextualise documents even if it cannot perfectly recreate the condition at expiry.

(i) Recovery of the Video “Walk-Through”: Proportionality and Utility

The pursuer sought recovery of the defender’s visual record. The court accepted, in principle, that third-party possession is not a bar to recovery and that specialist-format evidence can be handled. But the motion failed on proportionality and utility: there was already a substantial photographic record and no identified lacuna the video would fill. The refusal was in hoc statu, leaving open a renewed request if the reporter later identifies a gap.

3.3 Impact

  • Practical precedent on RCS 47.12(2)(i) remits in dilapidations: The decision consolidates a court-controlled model of expert reporting as an alternative to proof, but only within defined procedural limits.
  • Clear boundary against inquisitorial “expert determination”: Unless parties agree otherwise, the expert’s role is to assess lodged evidence and report; evidence-gathering and procedure remain court-supervised.
  • Template features likely to be reused: Scott Schedule-linked questions; requirement to give reasons; permission to consider party expert reports; controlled mechanism for further information and specialist assistance.
  • Discovery/recovery guidance: Even potentially relevant visual evidence (like a walk-through) may be refused where the requesting party cannot articulate a concrete deficiency in existing materials—though the court may keep the door open if need later emerges.

4. Complex Concepts Simplified

  • Scott Schedule: A tabulated dilapidations document listing alleged breaches, required remedial works, and often costs, with the opponent’s responses alongside.
  • Probation / Proof before answer: “Probation” is the leading of evidence; “proof before answer” is a full evidential hearing where legal pleas are reserved until after evidence.
  • Remit to an expert (RCS 47.12(2)(i)): A court appointment of an expert to examine the evidence for the court and provide a report; it is not automatically a binding private adjudication.
  • Expert determination (contrast): A typically contractual mechanism where an expert decides a dispute, often with broader discretion over process and information-gathering; the court here resisted replicating this under the Rules without agreement.
  • Productions: The documents and other evidential materials lodged in process.
  • In hoc statu: “For the present”; a refusal that does not prevent renewal if circumstances change.
  • Lacuna: A gap in the evidential record.

5. Conclusion

[2026] CSOH 40 clarifies that court-appointed expert remits in commercial dilapidations, where parties disagree on terms, must remain tethered to RCS 47.12(2)(i): the expert is a reporter to the court, not a quasi-arbitrator running an inquisitorial process. Lord Lake’s remit design balances efficiency (avoiding proof) with procedural safeguards (court-controlled requests for further information and specialist assistance). The decision is likely to influence how future Commercial Court dilapidations disputes structure remits, especially where one party seeks a broader, more interventionist expert-led process.