Scottish Court of Session Decisions

[1] This is a case in which I pronounced interim interdict in August 2000. The matter comes before me today in respect of a specification of documents for the pursuers. I have been supplied with a closed record in the current proceedings, that record having been closed in January of this year. Although the pleadings as fuller now than they were when the matter was last before me in August of last year, there does not appear to me to be any substantial change in the position of the parties. The pleadings are very clear and concise in their terms, and the opinion which I delivered in relation to the interim interdict summarises my general understanding of the position.

[2] Mr Ross who appeared for the pursuers today and moved the motion, accepted that in essence what he was seeking to do was to obtain records which either directly or indirectly would enable the pursuers to discover whether or not these goods came from within the European Economic Area. The provenance of the goods was at the heart of the factual issue in the case. Mr Connal who appeared for the defenders submitted that the pursuers' case was really based upon an inference which the pursuers sought to draw and that the defenders intended to show that that inference was quite unwarranted. There was no sound basis for inferring that the goods which the defenders were in possession of and which were referred to in the specification were sourced from outside the European Economic Area. Mr Connal also referred to the fact that the legal issue which is referred to in the previous opinion is about to be brought, possibly within a week or so, before the European Court of Justice and that the whole Court is likely to entertain and decide the legal issue fairly soon.

[3] The pursuers' case in my opinion does indeed rest to some extent upon an invitation to the Court to infer that certain goods traded in by the defenders had been or have been imported from outside the European Economic Area. I do not, however, read the averments as inviting the Court simply to draw such an inference. The express averment is that certain goods have indeed been imported from outside the European Economic Area. It appears to me that recovery of these records is likely to assist in determining the true factual matter. The ground of opposition stated in the form of opposition to the motion is, "The records sought are not relevant to the case as pled by the pursuers". In my opinion the records are highly relevant to the case as pled by the pursuers. The provenance of the goods in question is the heart of the matter so far as the facts are concerned. Mr Connal also argued that the problem was that once the information sought was obtained by the pursuers, it could be used by them for other purposes and perhaps against other parties; accordingly the pursuers should not be allowed to recover that information certainly at this stage. It appears to me however that the proper time for considering a matter of kind is when the record has been closed. In the circumstances I propose to grant the motion. The only modification that requires to be made is one that Mr Ross was ready to concede: that is that in paragraph 1(ii)(c) the reference to prices is not necessary at this stage. Accordingly the specification will be granted but the words "quantity of supply and prices" will be replaced by the words "and quantities of supply".