E01074
Expenses: certification of witness, not requested timeously in terms of Rule of Court 42.13(3) – proposed certificate of witness as expert who had represented the Appellant – whether appropriate – application refused.
EDINBURGH TRIBUNAL CENTRE
M W PLANT (CONTRACTS) LIMITEDAppellant(s)
- and -
THE COMMISSIONERS FOR
HER MAJESTY’S REVENUE & CUSTOMS Respondents
Tribunal: (Chairman): T Gordon Coutts, QC
Sitting in Edinburgh on Monday 5 November 2007
for the Appellant(s)Mr Paul Santoni
for the RespondentsMr Andrew Scott, Shepherd & Wedderburn WS
© CROWN COPYRIGHT 2007.
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DECISION
The issue in the principal appeal in this matter was whether a tractor was being used on public roads solely for purposes relating to agriculture. A lengthy hearing took place in which the Appellants were substantially successful but an issue remained in relation to expenses. After some discussions a direction was issued by the Tribunal finding the Respondents liable to pay to the Appellants 80% of the expenses of the appeal EDN/05/8007 and the whole expenses of the appeal EDN/05/8008. Those expenses failing agreement were to be taxed by the Auditor of the Court of Session in terms of Rule 29(3).
A diet of taxation was fixed for 4 July and it was agreed that at that diet parties were represented and a discussion took place in relation to various matters about which the Auditor required further clarification. The diet was adjourned.
Thereafter an application was made to the Tribunal seeking to have Mr Ian Fleming certified as an expert witness for the purposes of the case in regard to such investigation, reporting and attendance as was carried out by him.
Before entering upon the merits of such an application an issue of competency was raised by the Respondents.
In terms of Rule of Court 42.13(2) provision is made for charges beyond the ordinary witness fee. However it is necessary in terms of sub-paragraph 3 for certification that the witness was a skilled witness. In terms of the rule which applied at the date of the decision it had to be established that it was necessary to employ a skilled person to make investigations in order to qualify him to give evidence. In the then applicable rule necessity had to be established and the Tribunals attention was drawn to an Outer House Decision of Temporary Judge Coutts, QC in Snelling v Thomson Alarm Communication Systems Ltd where it was held that in order to show necessity something special to the cause or party ought to be the norm. The Tribunal was also reminded of a previous decision dealing with expenses in Scotland, Café D Vinci (No 7634) but insofar as any part of that decision dealt with the Tribunals power to certify, it related solely to a Sheriff Court scale of expenses and disregarded procedural rules applicable to auditing expenses in the Sheriff Court.
The Rule goes on however to provide that the Auditor may make no determination unless the Court has on granting a motion made for the purpose before or at the time at which it awarded expenses or on a motion enrolled at anytime thereafter but before the diet of taxation, certified the witness.
It is plain from the above narration of events that the application made to this Tribunal was not made before the diet of taxation. It was argued that the diet of taxation was incomplete but that does not appear to this Tribunal to be either here or there, the diet of taxation was fixed and had commenced, therefore a motion made thereafter is not allowable under Rule 43.13(3).
That is sufficient for the disposal of the application. However in deference to the position argued on the merits by both sides the Tribunal gives as its opinion that it would not have certified MrFleming in this appeal. They note that Mr Fleming was described initially and continued for some time to act as the representative of the Appellant (see Trib 1). In any event Mr Fleming’s experience was in relation to VAT matters not Hydrocarbon Oil Duties and there is nothing in the decision of the Tribunal on the merits of 6 June 2006 to indicate that Mr Fleming was able to assist the Tribunal other than as to matters of background but not as to whether the vehicle was an excepted vehicle under Schedule 1 of the 1979 Act. It is further unusual for the Appellants so-called expert witness to be employed as the Appellants representative. While the use of a representative as a witness may not be particularly remarkable, the use of a representative as an expert witness is wholly inconsistent with the position of an expert witness before the Court. An experts duty is to the Court not to the client. Independence cannot arise in the present appeal.
The application is accordingly dismissed.
T GORDON COUTTS, QC
CHAIRMAN
RELEASE: 22 NOVEMBER 2007
EDN/05/8007 & 8008
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