1. Introduction

This commentary examines the Opinion of Lord Braid in Douglas George Spence and another v David Burrell Graham [2025] CSOH 108, an Outer House decision of the Court of Session delivered on 21 November 2025.

Although the underlying dispute concerns alleged professional negligence by an architect in issuing Professional Consultant’s Certificates (PCCs) for a residential development, the Opinion does not deal with liability or quantum on the merits. Rather, it addresses a technically important but practically significant issue in Scottish civil procedure:

• whether it is competent and appropriate to recover, from a defender in one action, expert fees which were originally incurred in relation to another action against a different party; and
• the conditions under which the court may grant retrospective certification of “skilled persons” under the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019.

The decision clarifies:

• that prior instruction of experts in an earlier, separate action is not a bar to their certification in a subsequent action;
• that it is in principle competent to seek recovery of expert fees incurred in a prior action, provided the statutory tests are met; and
• that pre‑action instruction of experts can itself constitute “cause” for granting retrospective certification under rule 5.3(5).

The ruling is therefore of broad relevance to litigators in Scotland, particularly in complex, multi-party or sequential litigation (for example, construction, professional negligence, and serious injury claims) where expert evidence is frequently obtained before proceedings are raised and sometimes in one action before a related action is contemplated or commenced.

2. Background to the Case

2.1 Parties and underlying dispute

The pursuers, Douglas and Karen Spence, purchased a residential property in West Lothian in October 2020 from a developer, Garry Walker. The defender, David Burrell Graham, is an architect who had provided Walker with two Professional Consultant’s Certificates (PCCs) in the standard form of the Council of Mortgage Lenders, dated 27 September 2019 and 10 January 2020. In those PCCs, the defender certified that:

• the property had been constructed to a satisfactory standard; and
• the works were in general compliance with the drawings approved under the building regulations.

After purchase, the pursuers alleged that the property contained extensive defects in construction, insulation, heating, plumbing, external rendering, septic tank, and other elements.

2.2 The first action: Spence v Walker

The pursuers initially sued the developer, Garry Walker, for breach of contract. In that first action:

• the pursuers instructed a range of experts between 2023 and 2024 to inspect the property and prepare reports on different aspects of the alleged defects;
• these experts were not certified as “skilled persons” in that action; and
• no motion was made to recover their fees as judicial expenses in that litigation.

On 12 April 2024, the pursuers obtained a decree for £500,000 plus expenses against Walker. However, Walker was insolvent, so the decree was effectively unenforceable.

2.3 The present action: Spence v Graham

Following Walker’s insolvency, the pursuers “trained their sights” on the defender architect, alleging professional negligence in issuing the PCCs. They raised a new action seeking £1 million in damages.

To prove their case against the architect, the pursuers:

• incorporated in their pleadings (Article 3 of Condescendence) the various expert reports previously instructed (or partly instructed) in the action against Walker;
• founded upon those reports for averments of defects; and
• also obtained additional expert reports, one of which (from an architect) was specifically prepared for the current action.

The defender’s response is twofold:

1. Facts: He does not admit the existence of the alleged defects (“not known and not admitted”), thereby putting the pursuers to their proof.
2. Duties: He contends that many of the duties averred by the pursuers go beyond those owed by a reasonably competent architect issuing a PCC.

3. The Motion on Skilled Witnesses and Expenses

3.1 The experts in question

The pursuers moved for certification of seven skilled persons under rule 5.3 of the 2019 Taxation of Judicial Expenses Rules, seeking both:

• certification for future work in the present action; and
• retrospective certification covering work already carried out, much of it in connection with the earlier Walker litigation.

The experts and their reports were:

3.2 Opposition by the defender

The defender opposed the motion in significant part, leading to a focused dispute on the scope of certification and retrospectivity:

• Peter Drummond (architect): Certification, including retrospective, not opposed.
• Corrinne McLeish (quantity surveyor): Prospective certification not opposed, but retrospective certification opposed.
• All other experts: Certification (both prospective and retrospective) opposed “root and branch”.

The core concern of the defender was that the pursuers were, in effect, attempting to transfer the cost of expert work carried out for a different action (against Walker) onto the defender in a new action, even though those earlier costs had never been the subject of a motion for certification or recovery in the Walker case.

4. Statutory Framework: Skilled Persons and Expenses

4.1 Rules 4.5 and 5.3 of the 2019 Act of Sederunt

The court’s power to control recovery of expert fees is governed by the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, notably:

• Rule 4.5: general rule on recovery of charges to skilled persons.
• Rule 5.3: procedure and criteria for certification of skilled persons.

Rule 4.5(1) provides that no charge to a person engaged for the application of that person’s skill is to be allowed as an outlay unless:

• the person has been certified as a “skilled person” under rule 5.3; and
• the charge relates to work done after certification, except where the court has determined, under rule 5.3(5), that certification is to have retrospective effect.

Rule 4.5(2)–(3) then assign a central role to the Auditor of Court:

• the Auditor must allow charges only for work or expenses reasonably incurred and reasonably required for a purpose in connection with, or in contemplation of, the proceedings;
• the Auditor determines what is “fair and reasonable”.

Rule 5.3(2) stipulates the substantive test for certification:

• the person must in fact be a “skilled person”; and
• it must be, or have been, “reasonable and proportionate” that the person be employed.

Rule 5.3(5) then deals with retrospective effect:

“[T]he court may only determine that the certification has effect for the purposes of work already done by the person where the court is satisfied that the party applying has shown cause for not having applied for certification before the work was done.”

4.2 The identified test and prior authority

Lord Braid records that the test for certification has generally been said to be whether, objectively at the time of instruction, it was reasonable and proportionate to employ the witness, referencing Philip v Scottish Ministers [2021] CSOH 52.

From this, the Opinion confirms two important points:

1. The test is objective and is applied at the point of instruction, not with the benefit of hindsight after the outcome of the case is known.
2. The wording “is, or was reasonable and proportionate” in rule 5.3(2)(b) recognises that certification may be granted mid‑litigation in respect of both ongoing work (“is”) and earlier work (“was”), subject to rule 5.3(5).

5. Summary of the Judgment

5.1 Issues for decision

Lord Braid identified two discrete questions in relation to each proposed expert:

1. Certification in principle: Should the person be certified as a skilled person at all under rule 5.3(1)–(2)?
2. Retrospective effect: If certification is granted, should it have effect for work already done, by virtue of rule 5.3(5)?

5.2 Certification in principle

On the first question, Lord Braid held that:

• The pursuers must prove both:
  • the existence and extent of the alleged defects; and
  • the cost of remedying them.
• Since the defender’s “not known and not admitted” stance puts the pursuers to proof, it is objectively reasonable and proportionate to instruct expert witnesses on both defects and quantum.
• It is in principle reasonable and proportionate to use a range of experts, given the “panoply of defects” alleged.
• It cannot be a bar to certification that:
  • the experts had previously been instructed in a different action; or
  • some reports were originally prepared expressly for the Walker action.
• To insist on an entirely new set of experts solely because a new defender is sued would undermine “economy in litigation”, which is one of the purposes underlying the 2019 Rules.

There was one limited exception: the structural engineer, Ross Vinter. Lord Braid could not identify from the pleadings any specific averments of structural defects justifying his instruction. In the absence of any additional explanation in the motion, certification of Mr Vinter was refused in hoc statu (for the time being), with the door left open to a renewed motion if further information is provided.

Accordingly, the court granted certification in principle for all the experts except Mr Vinter.

5.3 Retrospective certification

Turning to retrospectivity, Lord Braid’s key conclusions were:

• There is no principled bar to retrospective certification where:
  • the expert was previously instructed in another action; or
  • the report was initially prepared for that other action.
• Expert reports may have a dual purpose: prepared for, or in contemplation of, one action, but also serving (factually and legally) the purposes of another action.
• The crucial question under rule 5.3(5) is whether the pursuers have “shown cause” for not having applied for certification before the work was done.
• Where work is done before the action is raised, there is an obvious cause: it is simply not possible to seek certification in proceedings that do not yet exist. That, in itself, is sufficient cause.
• Although the pursuers delayed in bringing the certification motion after the present action began (due to an oversight), there was no material prejudice to the defender.

Lord Braid therefore exercised his discretion to grant retrospective certification in respect of all six witnesses for whom certification was granted (i.e. all but Mr Vinter), including Ms McLeish, whose retrospective certification had been opposed.

5.4 Role of the Auditor preserved

Lord Braid emphasised that the court’s decision on certification does not guarantee recovery of any particular expert’s fees:

• It remains for the Auditor to decide whether the work and expenses were:
  • “reasonably incurred”; and
  • “reasonably required for a purpose in connection with the proceedings, or in contemplation of the proceedings”.
• If the Auditor finds that some work was not reasonably required in connection with (or in contemplation of) the present action, he may disallow the corresponding charges notwithstanding certification.

In short: certification opens the door to potential recovery; the Auditor decides how far that door is actually opened.

5.5 Disposal

The court’s formal disposal was:

• Certification granted in respect of:
  • Dr Scott Andrew Crerar
  • Gordon Morris
  • David Cameron
  • Alastair Welch
  • Peter Drummond
  • Corrinne McLeish
  with retrospective effect under rule 5.3(5) for work already done.
• Certification refused in hoc statu for:
  • Ross Vinter (structural engineer)

6. Detailed Analysis

6.1 Precedents cited: Philip v Scottish Ministers

The only reported authority expressly cited is Philip v Scottish Ministers [2021] CSOH 52. Lord Braid uses it as an illustration of the now settled proposition that, when deciding whether to certify a skilled person:

“The test has generally been said to be whether, viewed objectively at the time of instruction, it was reasonable and proportionate to employ the witnesses.”

This reinforces that:

• Certification is not a reward or penalty dependent on the outcome of the case; it is a control mechanism based on what a reasonable litigant would have done at the time.
• The court should avoid hindsight bias: whether an expert ultimately proves helpful or persuasive is not decisive for certification, though it might influence the eventual award of expenses and the Auditor’s assessment.

Although Philip dealt with a different factual context, its confirmation of the objective test supplies an important foundation for Lord Braid’s reasoning in Spence v Graham. The present decision largely develops the application of that test in a novel setting: reuse of expert work across sequential actions.

6.2 Legal reasoning on certification in principle

6.2.1 The need for expert evidence

The defence position (“not known and not admitted”) means that the existence and extent of defects cannot be taken as agreed. Lord Braid therefore accepts that expert evidence is necessary:

• on the factual existence of defects (technical building, engineering, and plumbing issues which are beyond lay knowledge); and
• on the cost of rectification (specialist quantity surveying evidence).

Crucially, the court stresses that certification is not contingent on the pursuers being likely to succeed on every alleged defect. The process recognises that parties may plead a range of factual contentions, not all of which will survive to proof or be accepted by the court.

6.2.2 Reasonableness and proportionality

Lord Braid applies the objective reasonableness and proportionality test to the future conduct of the litigation (looking to the proof yet to come), while recognising that the same standard applies to past instructions when assessing retrospective certification.

Key factors underpinning his conclusion that it was reasonable and proportionate to instruct these experts include:

• the breadth of alleged defects (requiring multiple disciplines: engineering, thermography, surveying, architecture, and quantity surveying);
• the complexity and technical nature of the issues;
• the high value of the claim (£1 million); and
• the need to establish both breach and loss in a professional negligence action against an architect.

6.2.3 Prior instruction in another action is not a bar

The central novel issue is whether prior instruction in the Walker action invalidates or undermines the reasonableness of using the same experts in the Graham action.

Lord Braid rejects that suggestion:

“It cannot possibly be a bar to their being instructed in this action that they were previously instructed by the same pursuers in a different action. So to hold would be to require the pursuers to have instructed a whole raft of new experts which would achieve the very opposite of economy in litigation…”

This marks an important clarification: the 2019 Rules do not contain, and should not be read as creating, a “single-use only” rule for experts. If anything, the principle of proportionality and the policy of litigation economy favour reusing appropriately qualified experts, provided:

• their evidence is relevant and necessary to the issues against the new defender; and
• they meet the general test for reasonableness and proportionality.

This is particularly significant in practice where:

• an initial claim is made against a contracting party (e.g. developer, contractor), and
• a subsequent professional negligence action is then raised against an insurer, architect, engineer, or other professional after the first defender becomes insolvent or partially satisfies the claim.

6.2.4 The exception: lack of linkage to pleadings (Vinter)

The refusal to certify Mr Vinter (in hoc statu) underscores another principle: there must be a demonstrable linkage between:

• the issues pled in the action; and
• the subject-matter of the expert’s proposed evidence.

Lord Braid notes an absence of any specific averments of structural defects in the pleadings or any explanation in the motion to justify the structural report. This highlights a procedural discipline: certification is not an automatic rubber-stamp for any and all experts; there must be a coherent case theory explaining why such expertise is required.

6.3 Legal reasoning on retrospective certification

6.3.1 The meaning of “shown cause” in rule 5.3(5)

Rule 5.3(5) authorises retrospective effect only if the party has “shown cause” for not seeking certification earlier. Lord Braid’s interpretation here is significant.

He draws a distinction between two analytical stages:

1. Threshold: Has the party shown cause for not applying sooner?
2. Discretion: If so, should the court exercise its discretion in favour of retrospective effect, considering any prejudice and overall fairness?

This two-stage approach is important because it prevents the “prejudice” analysis from swallowing the distinct statutory requirement that cause must be shown.

6.3.2 Pre‑action instruction as sufficient cause

Lord Braid holds that, on “any view”, the pursuers were entitled to instruct expert evidence before raising proceedings. Moreover:

“[W]hen it was not possible to seek sanction, because the action was not in existence. That in itself is sufficient cause to justify the court making the requisite determination.”

This is an important doctrinal clarification: where expert work is done before litigation is commenced, the mere impossibility of earlier application is, without more, sufficient cause under rule 5.3(5).

As a result, litigants can:

• obtain necessary expert evidence pre‑litigation (for example, to decide whether to sue);
• later seek retrospective certification once proceedings have been raised; and
• do so without having to demonstrate anything more elaborate than that the work was done before proceedings existed.

This reasoning is consistent with the explicit reference in rule 4.5(2) to work done “in contemplation of the proceedings”.

6.3.3 Delay during proceedings and prejudice

The pursuers’ senior counsel candidly accepted that the failure to move for certification earlier in the present action was due to oversight. Lord Braid recognises that delay could give rise to prejudice in some cases but finds none here.

He therefore clarifies:

• Prejudice (or lack thereof) is relevant at the discretionary stage, i.e. once cause has been shown.
• However, the analysis of “windfall” or “unjustifiable benefit” to the defender is not the correct starting point; it is a fairness consideration, not the test.

In the circumstances, where:

• the defender knew of the reports (they are incorporated into the pleadings);
• their use in the litigation is transparent; and
• no procedural disadvantage arises from the timing of the certification motion;

Lord Braid concludes that retrospective certification causes no unfairness and that any risk of over-recovery is controlled by the Auditor’s subsequent scrutiny.

6.3.4 Dual purpose reports and subsequent actions

A key conceptual move in the Opinion is the acceptance that reports may have a dual purpose:

“Even if reports were prepared for the purpose of, or in contemplation of, a different action, they might have a dual purpose.”

This serves several functions:

• It undercuts any argument that a report, once “earmarked” for one case, is tainted for another.
• It dovetails with the language of rule 4.5(2), which looks to the auditor’s assessment of the actual purpose(s) for which work was reasonably required.
• It respects the practical reality that the same factual matrix (e.g. construction defects) can give rise to multiple, related claims against different parties over time.

The concept of dual purpose thereby becomes a doctrinal tool justifying:

• certification of experts whose reports originated in a previous case; and
• the possibility of recovering those costs against a different defender, subject to the Auditor’s factual findings.

6.4 Role of the Auditor and judicial oversight

Lord Braid is careful to maintain the proper division of labour between court and Auditor:

• The court:
  • decides whether to certify a person as skilled under rule 5.3;
  • decides whether certification is retrospective under rule 5.3(5); but
  • does not determine, at this stage, the precise level or reasonableness of charges.
• The Auditor:
  • scrutinises whether work was “reasonably required” and “reasonably incurred”;
  • assesses whether work was done “in connection with” or “in contemplation of” the present proceedings; and
  • may disallow charges if these requirements are not met, even if certification exists.

This ensures that certification does not function as a blank cheque. Instead, it is a gateway, after which detailed quantitative scrutiny remains with the Auditor.

7. Impact and Significance

7.1 Clarification of law on prior‑action expert fees

The case establishes (or at least firmly confirms) that:

• It is competent and potentially appropriate to recover expert fees in one action even though they were first incurred in relation to a previous, different action against another party.
• What matters is not the formal label of the earlier work, but:
  • whether it was reasonable and proportionate to use the expert in the present action; and
  • whether the work can properly be regarded as having been done “in contemplation of” or “for a purpose in connection with” the present proceedings.

This has particular importance in scenarios where:

• a claimant sues multiple potential wrongdoers sequentially (e.g. contractor → architect → insurer);
• there are insolvency complications; or
• early expert reports encourage or necessitate second or third waves of litigation as responsibility is further explored.

7.2 Encouragement of pre‑action diligence and litigation economy

By accepting that:

• pre‑action expert instruction is proper and can support later recovery; and
• inability to apply before a claim exists is sufficient “cause” for retrospective certification,

the judgment implicitly encourages:

• proper pre‑action investigation and assessment (which is often required by pre‑action protocols and good practice);
• avoiding unnecessary duplication in expert work; and
• efficient reuse of evidence where factual matrices overlap.

The reference to “economy in litigation” highlights a policy rationale: requiring new experts merely because a new case against a different defender is raised would raise costs and inconvenience without corresponding fairness gains.

7.3 Strategic implications for litigants and practitioners

Practically, the case suggests several points for litigators:

• Do not fear pre‑action experts: Reasonable pre‑action expert work can, in principle, be the subject of later recovery, if certification is obtained.
• Think ahead about multiple defendants: When instructing experts in an initial case, consider whether their reports may be of use in prospective or related claims against others.
• Plead the linkage clearly: Certification motions should make clear how each expert’s evidence relates to specific issues in the pleadings (the difficulty with Mr Vinter illustrates this).
• Apply for certification timeously: While oversight here did not cause prejudice, failure to move for certification promptly could, in different circumstances, affect the court’s discretion.
• Expect Auditor scrutiny: Recovery is not automatic; practitioners should ensure that expert work is clearly tied to issues in dispute and documented as to its purpose.

7.4 Limits of the precedent

The judgment does not:

• determine the ultimate liability of the architect for alleged negligence in issuing the PCCs;
• guarantee that all expert fees will be recoverable – that still lies with the Auditor;
• eliminate the need to justify why each expert is necessary in the particular litigation; or
• address in detail how to apportion expert fees where work was done for multiple purposes or cases, an issue which will often fall for the Auditor.

8. Complex Concepts Simplified

8.1 “Skilled person” and “expert witness”

In Scottish civil procedure, a “skilled person” is essentially an expert witness – someone with specialised knowledge or experience whose evidence is needed to assist the court on technical matters (engineers, doctors, surveyors, accountants, etc.).

Certification as a skilled person is not about admissibility of evidence; rather, it governs whether the winning party can recover that expert’s fees from the losing party as part of judicial expenses.

8.2 Certification and retrospective certification

Certification means the court formally recognises that:

• the person is indeed a skilled person; and
• it was reasonable and proportionate to employ them in the case.

Retrospective certification (under rule 5.3(5)) means that this recognition is applied “backwards” to cover work the expert has already done before the date of certification. Without retrospection, only work after certification could normally be recovered.

8.3 Auditor of Court

The Auditor of the Court of Session is a specialist officer responsible for taxing expenses – that is, scrutinising and fixing the amount of expenses payable by one party to another after an award of expenses has been made.

Even with certification, the Auditor may:

• disallow or reduce fees deemed excessive, unnecessary, or unrelated to the issues in the case;
• examine whether pre‑action work was genuinely “in contemplation of” the proceedings now before the court.

8.4 “In hoc statu”

The Latin phrase in hoc statu means “for the present time” or “in the present state of affairs”. A motion refused in hoc statu is not rejected permanently; it may be renewed if circumstances change or additional material is provided. Here, Lord Braid refused certification of Mr Vinter in hoc statu because the pleadings did not yet justify his involvement.

8.5 “In contemplation of the proceedings”

Rule 4.5(2) allows the Auditor to authorise recovery of charges for work done “in contemplation of the proceedings”. This captures pre‑action work undertaken when:

• a party is seriously considering litigation; and
• obtains expert advice to evaluate or prepare for that litigation.

It does not require that proceedings have already been commenced; it is enough that they were being realistically contemplated.

8.6 Professional Consultant’s Certificate (PCC)

A Professional Consultant’s Certificate is a form of assurance commonly used by lenders and purchasers where a full structural warranty (such as NHBC) is not obtained. Under the Council of Mortgage Lenders standard form:

• a professional (often an architect or engineer) certifies that construction has been carried out in general accordance with approved drawings and to a satisfactory standard;
• the certificate is often relied upon by lenders and purchasers as to the soundness of the property.

In this case, the pursuers allege that the architect negligently issued PCCs in circumstances where significant defects should have been identified by a reasonably competent architect.

9. Conclusion

Spence v Graham [2025] CSOH 108 is a significant procedural decision on the recovery of expert witness fees and the operation of certification under the 2019 Taxation of Judicial Expenses Rules.

The key points emerging from Lord Braid’s Opinion are:

• Certification is governed by an objective standard: the court asks whether, at the time of instruction, it was reasonable and proportionate to employ the expert, without hindsight about case outcome.
• Prior use in another action is no bar: An expert’s previous instruction in an earlier, separate case does not disqualify them from certification in a later action, even where reports were originally prepared expressly for the earlier case.
• Retrospective certification is available: Where expert work was done before the present action existed, the impossibility of earlier application itself constitutes sufficient “cause” under rule 5.3(5).
• Dual purpose reports are recognised: Reports prepared for one action may legitimately serve the purposes of another, and this may support recovery of fees in the later action.
• The Auditor’s role remains central: Certification (prospective or retrospective) does not guarantee recovery; the Auditor still assesses reasonableness, necessity, and connection with the proceedings.
• Pleadings must justify each expert: The court will scrutinise whether there is a clear link between the issues pled and the expert’s proposed evidence (as illustrated by the refusal, in hoc statu, of certification for the structural engineer).

In practical terms, the decision will assist parties and practitioners by:

• reducing the risk that reasonable pre‑action expert work becomes irrecoverable solely due to timing or the emergence of subsequent related litigation;
• encouraging efficient reuse of expert evidence instead of duplicative instruction; and
• clarifying how the courts will approach motions for retrospective certification, especially in multi‑stage or multi‑party disputes.

While the ultimate liability of the architect remains to be determined, Spence v Graham stands as an important clarification of the law on expenses, offering a principled and pragmatic approach to the treatment of expert witness costs in modern Scottish civil litigation.