Factual and Procedural Background
The Pursuer is the owner of commercial property in The City. The Defender was the tenant until 24 December 2023. The parties dispute the Defender's liability under the repairing obligations in the Lease which ran from 25 December 2013 to 24 December 2023. The Pursuer served a Scott Schedule identifying alleged breaches and remedial works. The parties agreed in principle to renounce probation and remit factual issues to an expert rather than proceed to proof, but could not agree the terms of that remit. Both parties lodged draft remits and the court, presided over by Judge Lake, heard submissions and determined the appropriate terms of a remit to Expert Bruce (MRICS). The court also considered a motion by the Pursuer for recovery of a video survey held by a third party.
Legal Issues Presented
- Whether a remit to an expert in the absence of agreement on terms is competent under RCS 47.12(2)(i).
- The appropriate scope of the remit: whether the expert should determine factual issues only or make substantive determinations akin to an expert determination/arbiter.
- How to frame the remit questions so that the burden of proof is allocated (in particular whether to provide for items to be disregarded if insufficient information).
- Which materials the expert should take into account in preparing the report.
- The procedural powers of the expert (inspection, ability to seek further information, conducting interviews, appointing third-party specialists).
- Whether the expert may obtain assistance from third-party specialists (e.g. quantity surveyor, M&E specialist) and how such appointments are to be made.
- Allocation of fees and expenses for the expert and any third-party assistants.
- Whether the court should order production/access to a third-party-held video survey of the premises.
Arguments of the Parties
Pursuer's Arguments
- The remit ought to follow the form used in prior cases (as submitted) and permit the expert to perform his function without undue micro-management.
- The expert should be able to call for further information and seek specialist advice where necessary, with provision to return to the court for directions if required.
- The remit should tie questions to the Scott Schedule and allow the expert to provide reasons and cost estimates without being strictly bound by schedule sums.
Defender's Arguments
- The proposed remit by the Pursuer effectively seeks an expert determination (quasi-arbitral role), which is inappropriate; what is required is a report to the court on the evidence.
- The remit should require the expert to state whether he has sufficient information for each item and, if not, to disregard that item and attribute nil in any calculation.
- The expert should not be given inquisitorial powers to conduct interviews or gather evidence directly; any requests for further material should be routed via the court.
- Initially resisted appointment of third-party specialists but accepted that limited provision for such input may be necessary for costings.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Case A [2025] CSOH 101 |
Prior opinion concerning interpretation of the Lease in this cause. |
Referred to as a prior interpretation issued in the same proceedings; acknowledged background context informing current remit. |
| Case B [2023] CSOH 15 |
Use of agreed remits in dilapidations matters and approach to expert remit wording. |
Invoked by the Pursuer as supportive precedent for permitting a broadly framed remit and allowing the expert to seek further information/specialist input. |
| Case C [2025] CSOH 25 |
Remit practice in dilapidations cases and mechanism for appointing third-party cost specialists. |
Adopted as authority for permitting court-appointed third-party input on request and for structuring the remit to obtain cost estimates without full proof. |
Court's Reasoning and Analysis
The court (Judge Lake) first addressed competency: RCS 47.12(2)(i) permits appointment of an expert to examine reports/evidence and report to the court, and the court was reluctant to rely on the broader catch-all power so as not to render paragraph (i) pointless. The remit's basis thus informs its permissible content.
On scope, the court concluded the remit must focus on determination of issues of fact, with limited legal guidance provided where necessary. An adapted set of questions tying findings to the Scott Schedule was adopted to determine (a) existence of the identified wants of repair at lease expiry, (b) whether the remedial works listed were necessary to bring the building to the contractual standard, and (c) reasonable costs as at the Date of Expiry. The court rejected turning the expert into a decision-maker on legal interpretation but considered it appropriate to state high-level principles the expert should apply when assessing the state of repair.
The court included three guiding propositions for the expert on the meaning of the repairing covenant (standard is not perfect repair; it is assessed by reference to age/character/locality and fitness for the class of tenant; approaching end of economic life does not alone negate good tenantable repair).
On burden of proof, the court found the framed questions place the onus on the Pursuer and declined to add special stipulations for items where the expert cannot reach a conclusion.
Regarding materials, the court directed the expert to consider the Lease, the Scott Schedule and the productions (photographs, affidavits explaining photographs, and expert reports). The pleadings were not required for the expert to answer the factual questions.
On procedure and powers, the court required the expert to carry out at least one inspection. It refused to confer inquisitorial powers (interviewing witnesses or directly obtaining evidence/submissions). Instead, the expert may request further information via the Clerk of Court; the court will then consider such requests and may direct parties to provide additional material.
The court accepted that third-party specialist input (e.g. quantity surveyor, M&E specialist) may be necessary for cost assessments and provided for such assistance to be obtained by request to the court, consistent with practice in prior cases.
Costs of the expert and any third-party assistants were to be met in equal proportions by the parties, as expenses of process, with any future adjustment by motion to the court.
On the Pursuer's motion for production of a third-party-held video survey, the court noted the material's third-party possession does not preclude recovery but found that there was an extensive photographic record available and no present shortcoming demonstrated. The court refused the motion in hoc statu but left open the possibility that the expert might identify a lacuna warranting further consideration.
Holding and Implications
The court ordered a remit to Expert Bruce (MRICS) on the terms set out in the Annex to the Opinion. The remit requires the expert to answer specified factual questions tied to the Scott Schedule, to state reasons, to consider specified documents (Lease, Scott Schedule, productions), to inspect the property, and to seek any needed clarification or third-party assistance by directing requests to the Clerk of Court. Fees and expenses of the expert and any appointed assistants are to be borne equally by the parties.
The court refused the Pursuer's motion for production/access to the third-party-held video survey in hoc statu, but left open that the expert may request the court to direct production if a lacuna is identified. The decision sets no new substantive precedent beyond confirming the permitted scope and procedural safeguards for court remits under RCS 47.12(2)(i) in dilapidations cases and records the specific procedural framework to be applied in this matter.