A court case will invariably come down to a question of fact, or a question of law – or, if you are particularly unlucky, a mixture of both. Questions of law can be decided by way of legal debates, with solicitors or advocates arguing over the particular word choice of a judge who has long since passed away.
Questions of fact, whilst less glamorous, can be equally important. For instance, imagine that you have hit a pothole in the road, which has badly damaged your car. You hear from a friend at the local council that the council was well aware of the severity and location of the pothole, and had records of other drivers hitting the same pothole some months ago. Your friend says that the council simply forgot to fix it.
However, the council is simply ignoring your requests for any information. For argument’s sake, let us say that the council has successfully resisted a Freedom of Information request that you previously submitted.
You are alert to the fact that the onus of proof is on you, and raising an action without evidence could leave you open to the risk of expenses being awarded against you. You could try to recover the document during the main claim, but are conscious that if it has been lost or destroyed you would be stuck in the main action with very little chance of succeeding. Is there anything that you can do prior to embarking on the substantive litigation, in order to try to get that smoking gun documentation?
In short, yes, there is.
Section 1 of the Administration of Justice (Scotland) Act 1972 can be used in circumstances such as these. The section relates to the powers of the Court of Session and the Sheriff Court to recover property that appear to “be property as to which any question may relevantly arise in any existing civil proceedings before that court, or in civil proceedings which are likely to be brought, and to order the production and recovery of any such property...”
What this means in practice is that a person can raise an action, smaller in scope than the substantive action, to try to recover the items that he needs to properly bring his case. The section is wider than just written documents, and could include:-
- recovery of a server that contains an email your former employer wrote saying that the reason you were fired is because of your gender;
- recovery, sampling and testing of a batch of plant fertiliser that you say killed your prize apple tree; or
- the entry on to private property to photograph and take custody of a factory machine that you say was negligently maintained, causing you injury.
The section does not, however, allow a person free reign to use a court to order the production of documents by way of a ‘fishing trip’. Lord Cullen stated at page 832 B to D in Dominion Technology Limited v Gardner Cryogenics Limited (No 1) that:-
“In an application under section 1 of the 1972 Act in connection with prospective proceedings it is, in my view, plainly necessary that the applicant should do more than set out the nature of the proceedings which he is proposing to raise...The court requires to be satisfied that the proceedings ‘are likely to be brought’; and that as a matter of the exercise of its discretion it is appropriate that the order should be granted. This entails in my view that the applicant requires to make adequate averments as to the substance of and basis for the case which he proposes to make...”
However, the applicant does not have to (and likely cannot) go as far as to set out a case that would succeed in the substantive action. Temporary Judge J G Reid QC noted at paragraph 8 of Harwood v Jackson that:-
“...it is neither necessary nor appropriate to subject the petitioner’s pleadings to a detailed examination. The usual tests of relevancy and specification do not apply. The pleadings will be considered to ascertain whether the basic ingredients of an intelligible and stateable case are present.”
The method of implementing these provisions, in the Sheriff Court, is by way of a summary application in terms of rule 3.1 of the Summary Applications, Statutory Applications and Appeals etc. Rules 1999. These rules set out the requirements of such an application, including that the applicant grant an undertaking that they will compensate the respondent if the Sheriff’s order is found to have caused loss to the respondent, and will not use the information recovered except for in the contemplated substantive proceedings.
These rules also contain an interesting paragraph, 3.1.2(2)(c), which states that the summary application shall contain “the facts which give rise to the applicant’s belief that, were the order not to be granted, the listed items, or any of them, would cease to be available...”
On the face of it, this rule appears to mean that if a party simply refuses to hand over documents, but is not saying that they will (for instance) destroy them, these provisions cannot be used. Thankfully, the 2009 Inner House case of Manning v Manning held at paragraph 22 that:-
“...the problem created by the requirements of rule 3.1.2(2)(b) and (c) can be overcome by reading the opening words of rule 3.1.2(2) as meaning, “The summary application shall contain, as appropriate...” or “as the circumstances require...”."
This judgment was referred to in the 2014 judgment of Sheriff Principal Scott, QC, in Cairney v Glasgow City Council. This case centred on material that was not going to be “lost”, but for the recovery under section 1 of the 1972 Act. The Sheriff Principal held at paragraph 9:-
“Where the opening words of rule 3.1.2(2) are read as explicitly set out in Manning, rule 3.1.2(2)(c) has no function in these proceedings with the consequence that compliance with its terms is rendered unnecessary. In the circumstances of the present case, the pursuer need not aver facts regarding cessation of availability under rule 3.1.2(2)(c). Therefore, it also follows that the affidavit lodged by way of rule 3.1.3(a) need not contain that sort of factual material.”
It follows that section 1 of the 1972 Act can be used to recover information that a person thinks may go to his case, even where there is no risk that the other side is going to destroy the information – perhaps where they are simply refusing to divulge.
This article is for general information only. Nothing in this article should be taken as legal advice. If you have any queries on the content of this article please contact us.
