Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2003/219.html
Cite as: [2003] ScotCS 219

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Karling v. Chief Constable [2003] ScotCS 219 (05 August 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION OF T G COUTTS Q.C. Sitting as a Temporary Judge in the cause RICHARD KARLING Pursuer; against THE CHIEF CONSTABLE Defender:   ________________

Pursuer: Duncan; Digby Brown

Defenders: Smart; Simpson & Marwick, W.S.

5 August 2003

[1]      In this case the pursuer sues the Chief Constable as vicariously liable for the actings of a specified police officer. The pursuer avers that a toxicology report had been obtained on or about 30 October 1995, that it had been commissioned from the Poisons Department, Guys Hospital, London by investigating officers, but specified that, in particular, a named Detective Superintendent had commissioned the report and had been provided with a copy of it, at about "that time" presumably on or about 30 October 1995. The pursuer then avers that the said officer did not disclose the content of that report to either the Crown, the pursuer or his agents. The report was disclosed, it is said, on 26August 1999. The pursuer avers that the report was addressed to the specified officer and I was informed that the report in question was available as a production. The pursuer claims that as a result of the officer's failure to disclose the report, the pursuer may have been unlikely to have been convicted. It was the duty of the officer, it is averred, to disclose the content of the report to the Crown as soon as it was made available to him. In that duty he failed.

[2]      The matter came before me by way of an opposed motion for commission and diligence in respect of the specification of documents. The specification was opposed root and branch. It has four chapters, each of which is preceded by the phrase "all documents within the meaning of section 9 of the Civil Evidence (Scotland) Act 1988 held by or on behalf of, various persons". These include the Toxicology Department of Glasgow University and a named doctor. The calls then go on in respect of 20, 5, 7 and 12 matters of detail, the majority of which fall outwith the relevant time, i.e. the commissioning of the report and the non disclosure of it by the named police officer, who is also, despite his having retired from the force, named as a person "holding" documents.

[3]      The basis of the opposition was that the specification was properly described as a wholly fishing diligence. In my view that submission was correct. Various of the specified items have to do with matters which occurred after the obtaining of the report by the officer and detailing the circumstances in which the report was obtained. None of these matters appeared to be seriously in dispute, on a factual basis, and accordingly it appeared to me that the only purpose of at least the majority of the specified items of call might relate to possible future grounds of complaint against persons other than the police officer whose conduct is challenged in this litigation at present. It was not made clear to me at the motion roll what documents had in fact been made available to or been produced by the pursuer, nor what efforts had been made to persuade the defenders to produce any documents upon which they might choose to found.

[4]      I was not prepared to grant a commission in respect of the specification as produced. The court is not prepared to go through a document of that nature and fillet out the irrelevant and unnecessary matters. That should in any event have been attended to by the parties in terms of rule 35.2 and Practice Note number 7 of 1996.

[5]      Further and in any event, I would not have been prepared to allow a specification to proceed on the quoted introduction. It is not for havers to attempt to discover what statutory provisions apply to definitions of documents. It is for the person seeking the specification to inform the haver what it is he seeks. What Dr Cassidy for example, could make of this document without unnecessary research at her cost is wholly unclear to me. The tried and tested formula for specifying the documents required should not in my view be attempted to be innovated upon in this way.

[6]      The motion is accordingly refused.