Decision of the Scottish Land Court

Forsby Properties AB and Another (Applicants)
v
David Charles Andrew MacQueen (Respondent)

Case reference SLC/45/18
before
Iain F Maclean, Deputy Chairman, and Tom Campbell
22 January 2021

Introduction

[1] In paragraph (SEVEN) of our order dated 31 July 2020, we appointed parties to lodge any motions they might have in relation to expenses, together with written submissions in support thereof, within 42 days of the date of intimation of that order. We duly received motions accompanied by written submissions from both parties.

[2] The Applicant moved the court: (1) to find the Respondent liable to the Applicant in the expenses of the cause as taxed; (2) to sanction the employment of both Senior and Junior Counsel, under reference to the contents of paragraphs (a) and (b) of Rule 89(1) of the Rules of the Scottish Land Court 2014 (SSI 2014/229)(“the 2014 Rules”); (3) to order that the expenses be taxed on an agent and client, client paying basis; or (4), alternatively to (3), to allow an uplift of 50% in the chargeable expenses awarded, having regard to the factors mentioned in sub-paragraphs (i), (ii), (iii), (iv), (v), (vi) and (vii) of paragraph 5(b) of Schedule 1 to the Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993 [(SI 1993/3080); and as subsequently amended] (“the 1993 Act of Sederunt”); and (5) to certify John M. McDiarmid MBE, as an expert witness.

[3] The Respondent’s principal motion was that parties should bear their own expenses. Anticipating that the Applicant would be moving for sanction for the employment of both Senior and Junior Counsel and for certification of Mr McDiarmid as an expert witness, the Respondent’s written submission set out his grounds for opposing sanction for Senior Counsel and Mr McDiarmid’s certification. Because the Respondent, in his written submission, had not anticipated parts (3) and (4) of the Applicant’s expenses motion, we in our order dated 25 September 2020 afforded him a fortnight to respond thereto, and in due course we received a supplementary written submission from his agents opposing the imposition of both of the alternative scales of taxation proposed by the Applicant in the event of the court finding the Respondent liable in expenses to the Applicant.

The competing expenses motions

The Applicant

[4] The Applicant’s motion that the Respondent should be found liable to the Applicant in the expenses of the cause proceeded upon the stated basis that the Applicant had been “substantially successful” in what it characterised as its “original” case for declarator that the Respondent was the tenant of a lease of an area of 400 acres of ground [on Dalmagarry Moor], except in respect of “the location of the area.” The Applicant, shortly before the commencement of the proof, had sought, and was allowed, to amend its application to introduce an alternative crave that the subjects tenanted by the Respondent extended over an area of 1092 acres, which area, like the area of 400 acres referred to in the original crave, it identified by reference to a plan. It was argued that, but for the Respondent’s delay or failure to answer calls placed on him to produce information sought by the Applicant with a view to narrowing the grounds for inquiry and his lodging of “significant new evidence . . . at the last moment”, the Applicant’s preparations “would likely have been different” rendering it “unlikely the amendment would have been moved.” The Respondent, by contrast had been “wholly unsuccessful” in his defence to the application. He had failed to establish that the tenanted area was in excess of 1700 acres. He had periled his position on establishing that the references to 400 acres and 1092 acres were incorrect, and had not offered any alternative location [to that put forward by the Applicant] for the 400 acres in the event of the court holding a tenancy of that area to have been established.

[5] In response to the court’s criticisms of both parties’ pre-litigation conduct, which it was noted the court had characterised as “cagey”, it was explained that the Applicant’s motivation had been not to “upset the apple cart”, in the belief that the Respondent would behave reasonably towards the Applicant. That was why the Applicant had continued to employ the Respondent, as its predecessors had done (we take this to be a reference to the annual management agreements entered into between the successive owners of Dalmagarry Moor and the Respondent), and the present proceedings were commenced only after the Respondent had begun to request substantial increases in the payments for his services, on the basis that if the Applicant did not agree, he would assert his rights as tenant. The Respondent had also increased his agricultural activities on the moor by bringing cattle on and providing feed for them. The Applicant had sought information from the Respondent to support his claim to be a tenant, and as to the extent of his tenancy, but had “formed the view that the limited information provided did not support the Respondent’s claim.” The Applicant felt it had no choice but to take action, and was considering its options when “it became understood [sic]” that the Respondent was representing himself to a third party, Transport Scotland, for the purpose of negotiations regarding the A9 duelling project, to be the 1991 Act tenant of the wider area. For those reasons, it was submitted that the Respondent should bear the expenses of the application, without modification for the Applicant’s lack of success “in establishing one aspect of the declarator sought.”

The Respondent

[6] The Respondent argued that in the unusual circumstances of this case, as neither side had been entirely successful and, as the court itself had observed, because this had been an “unsatisfactory proof” that had resulted in a “less than satisfactory outcome” (cf. paragraph [155] of the note appended to the court’s order dated 31 July 2020), the fair and just disposal would be for parties to bear their own expenses. Whilst it was recognised that the court had been critical of the Respondent in a number of respects, it had also been critical of the Applicant’s approach to the litigation. The Applicant had failed to establish the case it set out to prove, and the court had rejected evidence led and submissions made on its behalf that had taken up substantial chapters of time during the proof, including the skilled witness evidence led from Mr McDiarmid, the affidavit evidence [obtained from Mrs Glynne-Percy, Lady Macpherson and Mr Tose], the plans prepared by Mr Seaman, and the argument that the execution of the plan [by the Respondent’s parents and Lord Macpherson in 1977] had been constitutive of a new agreement. The court had entirely rejected the Applicant’s alternative case. The court’s recognition that the decision it had reached was unlikely to be found satisfactory by either party was hardly consistent with a finding in expenses that the Applicant had been entirely successful, such as to justify the application of the usual rule on expenses. Finally, to the extent that the Applicant had enjoyed any limited success in the litigation, it was attributable to its [post-evidential] Minute of Amendment that divided up its craves, but for the allowance of which the court would have had no option but to dismiss the application.

The court’s discretion in relation to expenses

[7] Rule 88 of the 2014 Rules provides that the court “may award such expenses in a case, or in any part of a case, as it thinks fit.” Rule 90 provides that in a case where it finds a party entitled to expenses, it may fix a specific sum to be paid or may make a finding subject to such modification, if any, as it sees fit. The main principle to be applied in the exercise of that wide discretion in relation to expenses is that expenses should follow success: Gourlay v Doble & Wallace 2011 SCLR 55. That was, explained the then Chairman, Lord McGhie, a convenient shorthand for matters more fully expressed in Shepherd v Elliot (1896) 23 R 695 by the Lord President (Robertson) at page 696:

“The principle upon which the Court proceeds in awarding expenses is that the cost of litigation should fall on him who has caused it. The general rule for applying this principle is that costs follow the event, the ratio being that the rights of parties are to be taken to have been all along such as the ultimate decree declares them to be, and that whosoever has resisted the vindication of those rights whether by action or defence, is prima facie to blame. In some cases, however, the application of the general rule would not carry out the principle, and the Court has always, on cause shewn, considered whether the conduct of the successful party, either during the litigation, or in the matters giving rise to the litigation, has not either caused or contributed to bringing about the law suit.”

The breadth of the discretion afforded to the court is illustrated by the decision of the court (The Hon Lord Minginish and John Smith) in Maclean & Others v The Crofting Commission (RN SLC/54/16; 2 November 2016), in which the applicants were awarded their expenses against the successful respondents, notwithstanding that their application had been dismissed as incompetent, although it should be acknowledged that the court there expressly recognised, at the end of paragraph [6] of the note appended to the order dated 2 November 2016, that “this is a very unusual result, but it is justified, in our view, in the exceptional circumstances of this case.”

Decision on expenses

[8] We consider that this is a case in which, even if one were to accept that the Applicant was substantially successful in its application, and that the Respondent had been wholly unsuccessful in his defence thereto, a departure from the general rule would be amply justified. As it happens, we are not disposed to go along with that characterisation of the outcome of this litigation. What it overlooks is that, on the evidence we heard, and as the contents of the Applicant’s own written submission on expenses (in the reference to its pre-litigation calls upon the Respondent to make out his claim to have a tenancy, and the Applicant’s verdict that the information produced by him to it was inadequate) corroborate, the Applicant, until a very advanced stage in a dispute that had been fermenting over a period of many years, did not acknowledge that the Respondent had a secure tenancy over any part of Dalmagarry Moor. Indeed, in the course of the proof itself, the Applicant placed evidence before the court that might be read as calling into question the Respondent’s claim to have a secure 1991 Act tenancy (e.g. the affidavit of Mr Tose, and the statements of Mrs Glynne-Percy and Lady Macpherson), and the Applicant’s principal, Mr Lundberg, himself testified that the due diligence he had instructed when purchasing Dalmagarry Moor had assured him the Respondent did not have such a tenancy. Whilst the court was not disposed to hold Mr Lundberg’s personal “ambivalence” (as it was characterised by Junior Counsel for the Respondent), under cross-examination, in accepting that the Respondent did indeed have a secure tenancy, against him in its assessment of his credibility as a witness, it does inform the background to the instigation of these proceedings.

[9] Albeit that the Respondent ultimately was unsuccessful, after proof, in establishing that his tenancy extended over as large an area of Dalmagarry Moor as he would have liked, the formal declarator granted by the court affords him a degree of security in respect of his presence upon Dalmagarry Moor that he did not previously possess, and he succeeded also in resisting the Applicant’s attempt to corral and confine him into the 400 acres area in the north east corner of Dalmagarry Moor identified by Mr Seaman on his plan [Production 2], the contents of which, Mr Seaman had to acknowledge, had no basis whatsoever in historical fact. These are not negligible benefits to a party in the position of the Respondent when these proceedings were commenced.

[10] Approached on the footing that the Applicant was “substantially successful” in the outcome of the application, there is still, in our view, a strong case for dealing with the expenses on a “none due to or by” basis. We set out, at some length, in the note that accompanied our order dated 31 July 2020, the genesis of the dispute that eventually came to proof in the autumn of 2019 in Carrbridge Village Hall. The evidence revealed that successive owners of Dalmagarry Moor and their agents had opted not to confront the “elephant in the room”, with the consequence that, with every year that passed, resolving the underlying issue became more difficult to achieve. It was, we think, almost inevitable that this situation would at some point end up before the court, and both sides played their part in the years of evasion that preceded the instigation of these proceedings, with the biannual “pantomime”, as we described it, of the Respondent ritually tendering rent and the owners’ representatives ritually declining it, with little or no reason proffered as to why they were so doing, whilst at the same time the Respondent was being paid to maintain a flock of sheep on the moor. The difficulties which the Applicant encountered at proof in vindicating its position in a sense may be said to be of its own making, in that this was a situation it quite literally bought into.

[11] The Applicant, in its written submission on expenses, is critical of the Respondent for his failure to answer calls in the pleadings and the lateness of his production of significant, or at least potentially significant, documentation. It is suggested that if those calls had been answered, and those documents produced earlier, the grounds for inquiry may have been narrowed and the Applicant’s preparations for proof may have been different, although we note that no explanation has been provided as to what the Applicant might have done differently. In setting out its case for the imposition of a more onerous scale of taxation in conformity with parts (3) or (4) of its motion, the Applicant develops this point into the broader argument that the Respondent’s conduct shaded into a failure to give “fair notice of the case to be run” by him. We do not accept this submission. As we commented in paragraph [164] of our note:

“Our civil justice system is adversarial rather than inquisitorial in nature. The only case that the Respondent was required to meet was the one set out in the application, and he was free to respond to that case as expansively or as restrictively as he chose. In the absence of a court order ordaining him to do so, it was not incumbent upon him to produce documentation held by him that might compromise his preferred approach to defending the application.”

Whilst we went on to observe that such an approach came at a cost to him in terms of our overall assessment of his credibility, we do not consider that this weakens the essential point here that the Respondent was under no obligation to assist the Applicant to make its own – not always entirely coherent – case for it. The documents lodged by the Respondent about which the Applicant complains were, with the exception of the contents of his eighth inventory, the late lodging of which was not opposed by the Applicant, submitted in conformity with the time limits provided for in the 2014 Rules, and in any case, the Applicant was itself somewhat dilatory in its approach to the recovery of documents. A motion for commission and diligence in terms of an extensive specification of documents having been first intimated on behalf of the Applicant as long ago as 23 January 2019, the court, in the absence of any move on the part of the Applicant’s agents to progress matters, on its own motion fixed a procedural hearing for 31 May 2019. At that procedural hearing, the Applicant agreed to the discharge of the hearing of its (and the Respondent’s competing) motion for recovery of documents, in the belief that parties would be able to resolve matters without the necessity of court orders, only for the Applicant’s motion to be resurrected when the proof diet was imminent, in the last week of August 2019, thereby necessitating the fixing, at short notice, of a further procedural hearing on 28 August 2019.

[12] Applying the principle that the cost of litigation should fall on him who has caused it, we agree with the Respondent that this consideration too militates against a disposal that would see him being found liable for the Applicant’s expenses. Much court time was expended, at the instigation of the Applicant’s legal representatives, on adducing evidence that turned out to be of little or no assistance to us in relation to the critical issues we ultimately had to decide. In addition to the matters identified in paragraph 6 iv of the Respondent’s written submission, there was also the detour that resulted from the Applicant’s ill-starred decision to amend in a new crave for declarator of a tenancy extending over 1092 acres of Dalmagarry Moor, and the excursion through the extensive series of documentary productions charting the progress of the negotiations of the annual management agreements that shed little light on the de quo of the application. These documents were, it should be acknowledged, lodged by the Respondent, but it was the Applicant who opted to dedicate substantial tracts of court time to trawling through this material to little or no useful purpose. The case that the court ultimately held proved was some way removed from that which the Applicant came to court offering to prove, and there is considerable force in the Respondent’s point that had the court not been persuaded to exercise its discretion to allow the Applicant’s eleventh hour, post-evidential, Minute of Amendment breaking down the craves into their constituent parts, the application would indeed have fallen to be dismissed. The Applicant here staggered over the finishing line, and a “none due to or by” expenses disposal, in our view, properly reflects the equities of the litigation.

The Applicant’s subsidiary expenses motions

[13] Because the Applicant has been unsuccessful in its principal expenses motion, its subsidiary motions, for sanction for both Senior and Junior Counsel, for an award on the agent and client, client paying scale or alternatively for a percentage uplift, and for certification of Mr McDiarmid, are no longer live for decision, but in deference to the submissions we received, we shall indicate what our views otherwise would have been thereon.

Sanction for Senior Counsel

[14] Rule 89(2) of the 2014 Rules provides that the court may sanction the employment of senior counsel (alone or along with junior counsel) in any or all of the circumstances mentioned in paragraphs (a) to (c) of rule 89(1) if it accepts that such employment of senior counsel is justified. Rule 89(1) allows the court to sanction the employment of junior counsel for any stage of a case where - (a) the case is difficult or complex; (b) the case, or a matter arising as regards the case, is of particular importance to the party represented; and (c) junior counsel has been employed at a hearing and there has been no attendance of a solicitor (paragraph (c) has no application to the circumstances of this case). Here, it was contended on behalf of the Applicant that this was a case of “unusual difficulty in the factual matrix involving evidence of witnesses and farming practice . . . over a period of some 110 or so years”, which meant that the law as it stood over the whole period had to be taken into account. The application of the law to the facts was complex. On the importance of the case to the Applicant, it was asserted that the Respondent’s claim to a secure agricultural tenancy over 1700 acres:

“had the potential to materially impact on the Applicant’s grouse shooting. The representations to Transport Scotland also indicated that the Respondent’s claim to a secure agricultural tenancy over 1700 acres had potential wider ramifications. It became apparent to the Applicant that representations made to him about the Respondent’s occupation when the land [was] purchased, and which had been accepted in good faith, were more nuanced and carefully constructed than they had seemed. In particular, the Respondent asserted that his rights over the ground had remained unchanged since his family had started farming in 1908.”

[15] We would not have been minded to grant sanction for Senior Counsel along with Junior Counsel. As is observed in the Respondent’s written submission, the Applicant had the services of experienced Junior Counsel, and the Respondent was represented, very ably, by Junior Counsel throughout. The case was indeed “intensely factual in nature”, as the Respondent’s written submission contends, and whilst making sense of the facts respectively adduced by the parties proved to be a taxing puzzle for the members of court, we do not accept that the application of the law to those facts, once they had been established, was “complex.” On the contrary, in its exploration of the history, through a number of generations, of an agricultural tenancy, this case was quite typical of the agricultural holdings cases this court regularly entertains, and the application of the law of the late 1940s and 1970s to the facts of this case was considerably easier than the application of the far more complex contemporary statutory regime to the facts in cases such as J & S Wight Limited v McGowan and Others 2017 SLCR 66, to which reference was made in the closing submissions (see paragraph [123] of the note appended to the court’s order dated 31 July 2020).

[16] In respect of the claim made as to the particular importance of this case to the Applicant, our problem is that neither in the course of the hearing nor in the Applicant’s written expenses submission have we been supplied with any substantiating detail to support the assertion that the Respondent’s claim to a secure agricultural tenancy over 1700 acres “had the potential to materially impact on the Applicant’s grouse shooting”, against the backdrop of a situation on the ground where the Respondent’s sheep were not, in practice, restricted to any particular part of the Dalmagarry Moor and indeed, under the annual management agreements, were being actively encouraged to disperse across the available ground. It was only on receipt of the Applicant’s written submission that we were made aware of the Respondent’s “representations to Transport Scotland”, and the role they played in prompting the Applicant to litigate, and we are left to guess at the “potential wider ramifications” of this. In a situation in which, it would seem, on the evidence we heard, the Applicant needs the presence of Respondent’s sheep on Dalmagarry Moor as much as the Respondent needs the grazing thereon, the principal impact of our decision as to the acreage over which the Respondent’s tenancy extends may be to tilt the scales slightly more in the Applicant’s favour in the negotiation of future management agreements. Finally, we can make little or nothing of the final two sentences of the above quoted passage from the Applicant’s written submission, with its veiled reference to the “representations made to him [presumably a reference to Mr Lundberg] about the Respondent’s occupation when the land [was] purchased”, accepted in good faith, but which turned out to be “more nuanced and carefully constructed” than they had seemed. We take it that the nuanced and carefully constructed representations being alluded are those contained in the so-called Letter of Comfort provided by Mr Tose, but if so, the Respondent is not answerable for the contents of those representations, upon the basis of which the Applicant, presumably on legal advice, was prepared to complete its purchase of Dalmagarry Moor, and we do not consider that anything in this history would have provided grounds for the Applicant to require the Respondent to meet the costs of its instruction of Senior Counsel in addition to Junior Counsel in this cause.

Expenses on the solicitor and client scale

[17] Had we made an award of expenses in the Applicant’s favour, we would not have been inclined to grant its motion for expenses on the solicitor and client, client paying scale. Under reference to the third of the five propositions distilled from previous case law by Lord Hodge in McKie v Scottish Ministers 2006 SC 528 at paragraph [3], we do not think it can be said that the Respondent conducted the litigation incompetently or unreasonably, thereby causing the Applicant unnecessary expense. We agree with the points made on behalf of the Respondent in paragraphs 6 and 7 of his supplementary written submission that the two grounds advanced by the Applicant in support of this element of its expenses motion would not, either individually or cumulatively, justify the making of such an award. We addressed the Applicant’s complaint about delay on the part of the Respondent in lodging documents in our discussion of the merits of the principal expenses motions. With regard to the Applicant’s references to “the manner in which the Respondent’s own evidence was given” and what was perceived to be an attempt to influence one of his own witnesses, we would observe that in many contested proofs, the court has to form judgments on the credibility and reliability of the parties themselves, based on how they conducted themselves in the courtroom, but these judgments ordinarily, as in this case, find their expression in the court’s decision on the merits and not in the allocation of expenses.

The additional fee motion

[18] Paragraph (1) of Rule 99 (Fees allowed at taxation) of the 2014 Rules provides that:

“The fees allowed to solicitors at taxation are to accord with those for the time being payable in ordinary actions in the sheriff court except in so far as the court may, as regards a particular case, order otherwise.”

Lord McGhie, sitting as a Divisional Court, in Stott v Willox 1997 SLCR 165 at page 165, noted that it has been “the usual practice for the Land Court to attempt to follow closely Sheriff Court practice in relation to taxation of expenses”, and thus, although the 2014 Rules do not provide expressly for the making of such applications, we have routinely entertained motions at the instance of successful parties for an uplift in the fees allowable under reference to the factors listed in Regulation 5(b) in Schedule 1 to the 1993 Act of Sederunt. The object of the additional fee, as the preamble to Regulation 5(b) emphasises, is to “cover the responsibility undertaken by the solicitor in the conduct of the cause.” The factors to be taken into account in fixing the amount of any percentage increase, all of which the Applicant prayed in aid of this element of its motion, are:-

(i) the complexity of the cause and the number, difficulty or novelty of the questions raised;

(ii) the skill, time and labour, and specialised knowledge required, of the solicitor;

(iii) the number and importance of any documents prepared or perused;

(iv) the place and circumstances of the cause or in which the work of the solicitor in preparation for, and conduct of, the cause has been carried out;

(v) the importance of the cause or the subject-matter of it to the client;

(vi) the amount or value of money or property involved in the cause;

(vii) the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.”

[19] We would not have been persuaded that an uplift was justified here by reference to any of factors (i), (ii), (iii), (iv), (v), (vi) and (vii) founded upon. The concepts of complexity, difficulty, and importance to the party that are invoked in factors (i), (v) and (vi) feature also as the circumstances mentioned in paragraphs (a) and (b) of rule 89(1) of the 2014 Rules, by reference to which sanction of the employment of Senior Counsel may be justified, and our reasons for declining to award an uplift by reference to these three factors substantially overlap with what would have been our reasons for refusing such sanction, as set out in paragraphs [15] and [16] above. In relation to factor (ii), we do not think that, in terms of the skill, time and labour, and specialised knowledge required, of the solicitor, there was, in the circumstances of this case, anything that distinguished it from the general run of agricultural cases before this court. Particular emphasis is placed, in the Applicant’s written submission, on the skill and care which agents had to exhibit in contacting witnesses and taking statements from them, “given that peoples recollections were affected by the passage of time or limited involvement, and some potential witnesses . . . did not wish to get drawn back into complicated matters they believed they had left behind many years earlier.” Whilst we recognise that investigations carried out by agents, no doubt on the advice of counsel, are not necessarily rendered valueless because they do not produce helpful results, none of the three witnesses upon whom the Applicant here ultimately opted to rely (Mr Lundberg, Mr Seaman and Mr McDiarmid) fell into the category of witness requiring special handling. Whilst some 142 productions were lodged in this process, many of them had little or no direct bearing on the critical issues for decision: we do not consider that an additional fee would have been justified under reference to factor (iii) in these circumstances. The peripatetic nature of its business means that practitioners often find themselves having to travel to far flung sheriff courts or village halls to attend circuits of this court: here, the Applicant’s principal solicitor, based in Edinburgh, had to travel to Carrbridge in order to attend the proof. Such travel is a routine incident of litigation in this forum, as is the need for counsel and agents to carry out an inspection at the locus in order properly to understand the issues. Such considerations would not ordinarily justify the allowance of an additional fee under reference to factor (iv), and we see nothing in the circumstances of this case to distinguish it from the norm.

[19] Lastly, in support of its motion under reference to factor (vii), the Applicant advanced the submission that:

“The court is aware that parties agreed to mediation, the mediation took place and it did not resolve matters. The events of and surrounding that mediation are necessarily confidential. However, it is submitted that the existence of the mediation is representative of the steps taken by the Applicant’s agents to settle the cause.”

The members of the court were indeed informed by parties, before the hearing commenced, that they had agreed to mediation, that a mediation had taken place, and that it had not resolved matters. The Applicant’s agents are entirely correct in their assertion that the events of and surrounding the mediation are “necessarily confidential.” That being the case, the suggestion that we may take the existence of the mediation “as representative of the steps taken by the Applicant’s agents to settle the cause” constitutes a non sequitur. If the events of and surrounding the mediation are necessarily confidential, the court cannot take account of the existence of the mediation as “representative of the steps taken by the Applicant’s agents to settle the cause”, because those steps would be part of the events of and surrounding the mediation. In any event, given that both parties agreed to go to, and participated in, the mediation, we cannot see how the fact that a mediation took place in advance of the proof can be anything other than neutral as between the parties in relation to the expenses of the subsequent litigation. We accordingly would have rejected the Applicant’s motion for an additional fee under reference to factor (vii).

The certification motion

[20] Paragraph (3) of Rule 93 (Charges for skilled persons) contains a list of matters to which the Court may have regard in determining whether to sanction recovery of the charges of a person as a skilled or expert witness, being:

“(a) whether and to what extent the person’s special qualifications fall within a recognised area of knowledge, expertise or experience;

(b) what those special qualifications are;

(c) the relevance of the person’s knowledge, expertise and experience to the issues in dispute;

(d) if a report from the person was instructed, whether it was reasonable in all the circumstances to give that instruction at the time it was given;

(e) the terms of the instruction; and

(f) the quality of any—

(i) report produced; or

(ii) evidence given,

by the person and the value of that report or evidence to the court in resolving an issue in the case.”

[21] We did not, ultimately, find either the report Mr McDiarmid produced or the evidence he gave to be of assistance in resolving any material issue in the case, for the reasons given in paragraphs [109]-[116] of the note appended to our order dated 31 July 2020, which reasons it would be otiose for us here to repeat, and so we would have declined to certify him as an expert witness. We were, to say the least, somewhat surprised that the Applicant should have troubled us with such a motion, standing that earlier clear expression of our views as to the very limited value of this evidence, which derived not from any shortcomings on the part of Mr McDiarmid in terms of his qualifications and experience but from the deficiencies in the terms of the instruction he was given.