Scottish Court of Session Decisions

Subject_1Process
Subject_2Diligence
Subject_3Report by Procurator-Fiscal.
Facts:

The pursuer in an action of damages for slander alleged that he had been dismissed from the police force of a county in consequence of false statements regarding his conduct made by the defender. The defender in answer averred, inter alia, that the pursuer had not been dismissed in consequence of any statements made by him, but in consequence of a report made by the procurator-fiscal of the county, to whom the police committee had

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remitted to inquire and report. The case having been set down for trial at the winter sittings, the defender applied for a diligence to recover this report. He submitted that as the report had been made to a committee of the county council, and not in the regular course of the procurator-flscal's public duties, the objection of injury to the public service did not arise.

He further submitted that where, as here, it was essential to justice being done that a document should be recovered, the Court would be slow to refuse a diligence on the ground of possible injury to the public service, and referred to the following cases— Stiven v. Dunbar, 1727, M. 7905; Henderson v. Robertson, January 30, 1853, 15 D. 292. Counsel for the Lord Advocate admitted that the report had not been made to the Crown Office, and explained that the Crown officials had not had time to ascertain the particular circumstances in which it had been made, but objected to the diligence being granted on the ground that the production of the report might be prejudicial to the public service.

The Court granted the diligence, but directed the commissioner to seal up the Procurator-Fiscal's report and to transmit the same to the clerk to the process to lie in retentis and await the orders of Court.