Disclosure of Documents

Recovery of documents is an issue that I blogged about in the past.

As regular readers know much of BBM’s work comes from English solicitors who have clients who have some legal issue in Scotland. The different approaches north and south of the border to disclosure of documents in litigation is one of the key differences in the way that litigation is conducted before the English and Scottish courts respectively.

Recent advice we have been offering, has brought that into sharp focus in a particular case, and I thought I would share some reflections for the benefit of English colleagues.

Leaving aside some limited exceptions to do with, for example, medical records, in personal injury actions, there is usually no general right of document disclosure in Scottish litigation. Of course, those pleading the case will have an ethical responsibility to bring relevant information before the court. However, if we act for a Defender in a run of the mill commercial litigation, we cannot expect any automatic order from the court that the Pursuer (the Scottish equivalent to Plaintiff) will be compelled to provide any particular set of documents.

The Scottish approach has many advantages. Litigation tends to be cheaper than before the English High Court, and this is partly because very few cases in Scotland generate data rooms full of documents.

As a matter of policy, the Scottish courts are against fishing expeditions for documents.

If I am a litigant and consider that the other side have documents that are necessary in order for me to prove my case, a Motion is required for what is called commission and diligence of documents. That is essentially an order ordering production of documents within particular specified categories and/or date ranges.

If the court grants an order (and generally it will only do so where it is satisfied from the party’s written pleadings that such documents are necessary in order for it to prove its case) normally the “optional procedure” is followed. This effectively involves the party in whose hands the documents are said to be, being served with various court forms. They are compelled to produce documents falling within the categories to the Scottish court within seven days.

In the vast majority of cases, even if the haver (that is the technical name for the party who have the document order served on them) is outside Scotland, there is normally compliance. Theoretically, if the haver is based in England (and similar principles will apply in other jurisdictions, in some of which it will be very difficult to enforce) it is theoretically necessary to have recognition granted by the English High Court via letters of request before full performance can be compelled. Given that cooperation can normally be secured simply as an administrative step, parties will normally try to cooperate.

Sometimes it is said the information is confidential. The optional procedure foresees this and creates a procedure whereby documents can be lodged on a confidential basis leaving parties to argue before the court about whether they should be released or not.

Occasionally, it is argued by parties that the cost and time of searching for and producing the documents (whether held electronically or physically) is so prohibitive that the party seeking the documents should be ordered to pay the costs of search and production. It is possible in Scotland to make an application for such an order following the decision of Lord Hodge in Phoenicia Asset Management SAL v Alexander [2010] CSOH 71. This is in a sense a developing area of law but is worth consideration if genuinely the documents and search will be prohibitively expensive to provide.

In the event that the party seeking the documents is dissatisfied with the response under the optional procedure, it is then open to them to have a commissioner appointed by the court (usually an independent advocate in the Court of Session, or solicitor in the Sheriff Court) who will act as a commissioner. That commissioner will convene a hearing where havers through their directors and officers or individually can be cited (and ultimately compelled, although again recognition proceedings may be required if for example they are domiciled in England) to attend and give answers about the whereabouts of documents. The types of questions that can be asked are limited at such a commission. However, sometimes commission in diligence is tactically about proving certain documents do not exist and therefore in the absence of a clear certificate saying there are no further documents to produce under the optional procedure, it can be tactically advantageous to have a commission fixed. It is also sometimes advantageous to have an independent report from a commissioner (because following the commissioner report is submitted to the court) indicating, for example, that replies in relation to the location or existence of documents did not seem credible or the like.

English colleagues will be extremely wary of their clients falling foul of Scottish procedure, and in a worst case ultimately being held in contempt by the Scottish court. We are therefore more than happy to discuss with them the implications of orders for commission and diligence.

Eric Baijal is BBM’s Managing Director and Head of Litigation.

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