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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Strain (AP) v Premier Custodial Group Ltd [2007] ScotCS CSOH_28 (20 December 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_28.html
Cite as: [2007] ScotCS CSOH_28, [2007] CSOH 28
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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 28

 

A854/04

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD BRAILSFORD

 

in the cause

 

ROBERT SMILLIE WATT STRAIN (AP)

 

Pursuer;

 

against

 

PREMIER CUSTODIAL GROUP LIMITED

 

Defenders:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Defenders: Simpson; Simpson & Marwick

Lord Advocate: Sheldon; Office of Scottish Executive

 

 

20 December 2006

 

[1] This case called before me on the motion roll on 20 December 2006 when the defenders sought a commission and diligence in terms of a specification of documents, No.26 of process. The only contentious part of the specification was call 2 which sought, inter alia, "...precognitions ....in the hands of the Procurator Fiscal, Kilmarnock Sheriff Court, Kilmarnock....showing or tending to show: (i) the content of statements obtained by or used by the Procurator Fiscal's Service in connection with the prosecution of those accused of assaulting the pursuer at Kilmarnock Prison on 13 March 2001....". I refused to allow diligence for recovery of documents insofar as relating to precognitions and granted leave to reclaim against that decision.

[2] The dispute before me resolved to the single issue of whether or not precognitions taken by the Crown as part of a criminal prosecution were recoverable in a civil litigation. Mr Simpson on behalf of the defenders contended that there was no objection in principle to the recovery of such documents. Mr Sheldon, who appeared on behalf of the Lord Advocate, the haver, submitted that as a matter of principle precognitions obtained by the Crown as part of the process of a criminal prosecution were not recoverable. Mr Sheldon sought to justify his position by submitting that it was not in the public interest that Crown precognitions should be recovered. Precognitions were never recoverable because of the nature of the information they might contain and, further, because of the method of obtaining such statements. It was explained by Mr Sheldon that in using this language he meant that precognitions were not merely a narrative of what a potential witness stated as being his or her position but were documents obtained by a process of question, answer and interpretation by the precognoser. The product of this process, the precognition, was inevitably influenced by input from the precognoser. This he described as a "filtering process". Although it was not cited to me Mr Sheldon presumably had in mind when using that language the dicta of the Lord Justice Clerk (Thomson) in the well known case of Kerr v HMA 1958 J.C.14 where at page 19 the Lord Justice Clerk described the process of taking a precognition. In that passage the Lord Justice Clerk observed that "in a precognition you cannot be sure that you are getting what the potential witness has to say in a pure and unrefined form. It is filtered through the mind of another, whose job it is to put what he thinks the witness means into a form suitable for use in judicial proceedings". Mr Sheldon also brought to any attention the fact that section 2(1) of the Civil Evidence (Scotland) Act 1988 relating to the admissibility of hearsay statements did not apply to precognitions (section 9 of the 1988 Act). This he submitted was support for his proposition that precognitions which could not be used in evidence were not recoverable documents.

[3] Authority for the position adopted by Mr Sheldon was, he said, to be found in the cases of Graham v The Western Bank (1865) 3M 617, HMA v Ward 1993 S.L.T.1202 and B v Burns 1994 S.L.T.250. In Graham (supra) the pursuer sought, during the course of a civil jury trial, to produce a precognition taken by a solicitor of a person who had died prior to the trial. During the course of a hearing on a motion for a new trial this issue was discussed. At page 619, the Lord President (McNeill) expressed the view that he knew of no authority requiring the production of a precognition. He observed that there were some dicta against the competency of production of such a document and none in favour of it but then disposed of the point by observing that the information in the precognition would not be admissible under the law relating to hearsay and therefore sustained the objection to production of the precognition. HMA v Ward (supra) was, of course, a criminal case. In that case an accused person sough to recover at a preliminary diet all precognitions of Crown witnesses and individuals not on the Crown list of witnesses. That call was opposed by the Crown and Lord McCluskey refused recovery of the precognitions on the basis that he did not consider that precognitions were ever recoverable (page 1204H-I). His reasoning was that precognitions were confidential documents and, further, "because they are precognitions which cannot be put in evidence even under the statutory rules that govern the admissibility of statements made on previous occasions". B (supra) was a case in which the complainer in an alleged rape subsequently raised an action of damages against persons whom it was averred maliciously gave the police false information when being interviewed in connection with the police investigation into the alleged rape. Mr Sheldon relied on a passage in the Opinion of the Court at page 252F-H where it was held that absolute privilege should attach to statements made on precognition not because of any special quality attached to such a document but rather "on the critical need to facilitate and protect the giving of full and candid testimony". Mr Sheldon submitted that the underlying ratio of this case was that precognitions obtained by the Crown as part of the process of criminal investigation and prosecution were as a matter of public interest not recoverable. He further submitted that this case was binding upon me.

[4] Mr Simpson for the defenders firstly distinguished the case of Graham (supra) on the basis that the proper construction of the statements of the Lord President were that he refused to allow production of the precognition because it constituted a class of document that would not have been admissible in evidence. At the time of that decision the law and procedure then pertaining provided that no writing could be recovered by diligence unless it could be used in evidence. Mr Simpson maintained that no such rule now pertained and in that regard referred me to Lord Commissioner of the Admiralty v Aberdeen Steam Trawling & Fishing Co Ltd 1909 S.C.335 per the Lord President (Dunedin) at 340, Black v Bairds & Dalmellington Ltd 1939 S.C.472 per the Lord Justice Clerk (Aitchison) at page 478 and Young v The National Coal Board 1957 S.C.99 per Lord Blades at 108. This consideration also rendered Mr Sheldon's reference to the Civil Evidence (Scotland) Act 1988 otiose. Beyond this Mr Simpson maintained that there was no impediment in principle to the recovery of a Crown precognition in a subsequent civil litigation. He observed that Ward (supra) was a decision within a criminal trial and as such any views expressed by Lord McCluskey had no direct relevance in a civil case. Further and in any event it was submitted that Lord McCluskey's views were too wide and were not founded on any authority. B (supra) concerned questions of confidentiality. It did not relate specifically to precognitions and was therefore not directly relevant to the present case. He observed that recovery was sought in the present case not for the purposes of putting what a witness might or might not have said to the Crown in issue in a subsequent civil proof, but as a source of information confirming or otherwise a version of events about an incident stated on Record and forming the factual dispute between the parties in the current litigation. I pause to observe that phrased in the way suggested by Mr Simpson his attempt to recover appeared to come perilously close to constituting a "fishing diligence". That point was not however taken against him and, in any event, a more liberal interpretation would be that he was simply seeking confirmation or otherwise of a factual position. Accordingly viewed in the way advanced by Mr Simpson and from that standpoint he submitted that there was no objection in principle to the recovery of the documents sought.

[5] It appears to me that Mr Simpson is justified in maintaining that the case of Graham is not truly in point with the issue before the Court in the present case. The basis of the Lord President's refusal to allow production of the precognition appears to be that, as the law then stood, parties would not be permitted to produce documents that were not admissible. The precognition was not, as the law then stood, a document which could have been admitted in evidence. The reasoning of the Lord President is therefore readily discernible. I do not consider that the case is of assistance in determining the issue in the present case. I also consider that there is merit in Mr Simpson's criticism of the other two cases relied upon by Mr Sheldon. Considerations that may well have relevance in relation to the issue of recoverability of a precognition in a criminal trial may equally well have little relevancy in civil litigation. This appears to me to be particularly significant when, as here, the criminal trial has been concluded and no special continuing need to protect the identify of any person disclosed in a precognition has been advanced by the Lord Advocate. These considerations influence me in regard to the weight I should attach to the decision in Ward (supra). So far as B (supra) is concerned it concerned issues of confidentiality and privilege which did not arise in the present case.

[6] What was then left was Mr Sheldon's fundamental point, that precognitions obtained by the Crown as part of a criminal prosecution were not recoverable. So far as any issue of principle is concerned, there does appear to be at least a practice of refusing to allow the recovery of Crown precognitions, although it is difficult to find any specific authority for that proposition. Certainly no authority was cited to me to substantiate the alleged practice in civil procedure. Lord Macphail in "Sheriff Court Practice" (2nd Ed) at para.15.16 states that precognitions cannot be recovered by diligence. In that passage Lord Macphail was not dealing with precognitions obtained as part of a criminal prosecution but precognitions in general. He cited two decisions as authority for this proposition. On examination the first of these cases (Ritchie v Leith Docks Commissioners (1902) 10 SLT 395) is based on the superseded rule that recovery of a document would not be allowed where the document was one which could not be used in evidence. The second case (Anderson v St Andrew's Ambulance Association 1942 S.C.555) depends on the general rule that documents made by a party in preparation of his case are not recoverable. If therefore a practice such as that suggested by Mr Sheldon does exist the reasoning underlying the practice seems to be that explained by the Second Division in B (supra) in the passage founded upon by the haver in the present case and already referred to. I am conscious of the fact that the reasoning there was that the protection of witnesses or potential witnesses in a criminal trial is necessary for the proper administration of justice and that such protection may be necessary even after the conclusion of a trial. As I have already noted that reasoning may not be applicable, for the reasons advanced by Mr Simpson, in the present case.

[7] Notwithstanding the foregoing, I feel constrained to have consideration for the fact that the practice of refusing recovery of precognitions appears to be longstanding and to have some justification, at least in the context of protecting the integrity of criminal prosecutions. Moreover, at least in a practical sense and in the context of the present case, it seems to me that if, as Mr Simpson maintained, recovery of the precognitions was primarily to provide confirmation or otherwise of certain events averred on Record, that information was likely to be obtained in other documentary information which would be recovered under those parts of the specification that were allowed. In that sense it could not be said that refusal of recovery of the precognition was preventing the defenders obtaining information on some aspect of matters essential to the determination of an issue between the parties in this litigation. It could not therefore be said that recovery of the precognition was in this case essential in order to ensure that justice was done. For these reasons I refused the call insofar as it related to precognitions. Given that the matter appeared to be of some novelty and, further, that there appeared to be no authority precisely on point, I allowed leave to reclaim.

 

 

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