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Cite as: [2009] CSIH 12, 2009 GWD 8-133, 2009 SLT 327, [2009] ScotCS CSIH_12, 2009 SCLR 448

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Reed

Lord Mackay of Drumadoon

Lord Marnoch

[2008] CSIH 12

P3058/07

OPINION OF THE COURT

delivered by LORD REED

In the cause

SOVEREIGN DIMENSIONAL SURVEY LIMITED

Minuters and Respondents;

against

MARTIN ROBERT COOPER

Respondent and Reclaimer:

_______

Minuters: Cowan, Solicitor Advocate; Simpson & Marwick

Respondent: Robertson; Beveridge & Kellas

28 November 2008

Introduction

[1] In these proceedings the minuters seek to have the respondent found in contempt of court in respect of his alleged failure to comply with an order of the court made, or at least purportedly made, under section 1(1) of the Administration of Justice (Scotland) Act 1972. The case raises questions as to the scope of such orders and as to the appropriate use of the court's jurisdiction to deal with contempt.

The history of the proceedings

[2] On 7 December 2007 a petition was presented to the court on behalf of the minuters seeking an order against the respondent under section 1(1) of the 1972 Act. The order was sought on the basis that the respondent, who was a former employee and director of the minuters, had acted in breach of his fiduciary duties, in breach of an obligation of confidence, and in breach of a copyright owned by the minuters, in connection with the establishment of a competing business. It was averred that the minuters were likely to bring proceedings against the respondent, and that documents and property listed in a schedule to the petition were "likely to be in issue" in those proceedings. It was further averred that the petitioners were apprehensive that the respondent might take steps to part with or conceal the documents and property in question. The documents listed in the schedule comprised certain specific documents, such as a development plan which was said to be confidential, and other categories of document which might be relevant as evidence to support a claim against the respondent, such as documents showing the nature and extent of the use made by the respondent of the development plan. The property described in the schedule comprised computers and other electronic media on which any of the documents in question were stored.

[3] On the same date the Lord Ordinary granted the order sought in the petition, on the ex parte application of the minuters. The terms of the order followed

Form 64-A, as prescribed by Rule of Court 64.6. After ordering intimation and service of the petition, the order appointed a commissioner of the court in the following terms:

"appoints Jonathan Mitchell QC ....to be commissioner of the court; grants commission and diligence; orders the Commissioner to explain to the respondent or his servants, agents or anyone acting on his behalf on executing the order (a) the meaning and effect of the order; (b) that the respondent may be entitled to claim that certain of the documents and other property are confidential or privileged; (c) that the respondent has a right to seek legal or other professional advice of his choice, and (d) to give the respondent a copy of the Notice in Form 64-B of the Rules of Court....."

The next part of the order granted certain powers to the commissioner, including powers of entry and search:

"grants warrant to and authorises the Commissioner, whether the respondent has allowed entry or not, to enter between the hours of 9am and 5pm on Monday to Friday the respondents' property at [the respondent's home address] and any other place in Scotland owned or occupied by the respondent at which it appears to the Commissioner that any of the documents or property listed in the Second Schedule hereto may be located; grants warrant to the Commissioner, unless the respondent is taking legal or other professional advice on the question of having the order varied, (i) to search for and take all other steps which he considers necessary to take possession of or preserve the documents and property listed in the Second Schedule of the Petition, and (ii) to take possession of and to preserve all or any of the documents and property listed in the said Second Schedule and consign them with the Deputy Principal Clerk of Session to be held by him pending the further orders of the Court .....".

The next part of the order was directed at the respondent, and ordered him to permit the entry and search to take place, and in addition to provide specified information to the commissioner:

"and for that purpose orders the respondent or his servants or agents or anyone acting on his behalf to allow the Commissioner, any person whom the Commissioner considers necessary to assist him and the petitioner's representative to enter the premises named in the order, and unless the respondent has sought legal or other professional advice on the question of having the order varied, orders the respondent or his servants or agents or anyone acting on his behalf (a) to allow the Commissioner and those accompanying him to search for the documents and property listed in the Second Schedule of the Petition and take such other steps as the Commissioner considers it is reasonable to take to fulfil the terms of the order, (b) to allow the Commissioner and those accompanying him to obtain access to any information stored on any computer, server back-up tapes, magnetic discs, tapes, other computer readable media or computer hard-drives owned by or used by the respondent by supplying or providing the means to overcome any and all security mechanisms inhibiting access thereto; (c) to allow the Commissioner, any person whom the Commissioner considers necessary to assist him and the petitioner's representative to remain in the premises until such time as the search is complete, allowing them to continue the search on subsequent days, if necessary, (d) to inform the Commissioner immediately of the whereabouts of the documents and property listed in the Second Schedule hereto, (e) to provide the Commissioner with a list of the names and addresses of everyone to whom the respondent, his servants or agents or anyone on his behalf have given any of the documents and property listed in the Second Schedule hereto, and (f) not to destroy, conceal or tamper with any of the documents and property listed in the Second Schedule hereto, except in accordance with the terms of this order.....".

The final part of the order authorised the minuters' solicitor, and an independent computer expert, to accompany the commissioner for the purpose of identifying the relevant documents and property.

[4] The order was executed on 10 December 2007. The commissioner carried out a search of the respondent's house. During the course of the search, he found a box for a laptop computer. According to the minuters' pleadings, the commissioner asked the respondent where the laptop was. The respondent said that the laptop had been bought for a friend and colleague named Richmond, and that it belonged to Mr Richmond and was in his possession. According to the respondent's pleadings, the respondent said that the laptop had been bought for Mr Richmond but belonged to 3B Consultancy Services Ltd, which was a company for which Mr Richmond worked.

[5] Later that day a meeting took place between the parties at the offices of the respondent's solicitor. According to the minuters' pleadings, the respondent said at the meeting that he had purchased the laptop for his own use and that, at the time when the order was executed, it was being held by a neighbour. He also said that the laptop contained e-mail correspondence with customers of the minuters, and documents relating to 3B Consultancy Services Ltd. Those averments are denied by the respondent. In his pleadings, he maintains that the discussion at the meeting was for the purposes of settlement of the dispute between the parties, and was in any event expressly on an "off the record" basis, and that evidence of what was said at the meeting is therefore inadmissible. He further maintains that he was subjected to improper pressure and threats at the meeting. In addition, he maintains that the laptop did not in any event fall within the scope of the court's order.

[6] Following the meeting, the minuters sought by motion to have the respondent ordained to appear before the court. On 20 December 2007, after hearing counsel, the Lord Ordinary allowed parties to lodge the present minute and answers. In the minute, the minuters allege that the respondent deliberately failed to comply with paragraphs (d) and (e) of the order, and is accordingly in contempt of court. Following further hearings on 5 February and 19 March 2008, the Lord Ordinary appointed a hearing to take place on the respondent's preliminary plea to the relevancy of the minuters' averments. That hearing took place on 24 and 25 April 2008, and also encompassed the respondent's plea that, since the meeting had been held for the purpose of negotiating a settlement of the dispute, anything said at the meeting was privileged and inadmissible in evidence. By the date of that hearing, the laptop in question had been delivered to the commissioner.

[7] Following the hearing, the Temporary Judge issued an Opinion dated 6 June 2008 and, for the reasons explained in the Opinion, repelled the plea of privilege. The implication of her Opinion was that a proof before answer was to be allowed in respect of the remaining issues. On 13 June 2008, following a further hearing, she granted leave to reclaim. On 24 June 2008, following a hearing, the court found the reclaiming motion suitable for early disposal. Following a further hearing By Order on 22 October 2008, the reclaiming motion came before us on 28 November 2008. In the meantime, in January 2008 the minuters began proceedings against the respondent, 3B Consultancy Services and Mr Richmond, in which they seek interdict and damages. The record in those proceedings closed in August 2008.

[8] In the course of the hearing of the reclaiming motion, the court asked to be addressed on the competency of aspects of the order, and allowed an adjournment so that counsel would have an opportunity of considering the matter. Following the adjournment, counsel indicated that they would not be in a position to address the court fully on the questions which had been raised unless the hearing were to be discharged and re-fixed for a later date. The court was however unwilling to continue the hearing to a later date, and decided that the minute should be dismissed, for reasons which we shall explain when we consider the question of the public interest. The court indicated that an Opinion would be issued, explaining the court's reasons for dismissing the minute. We have considered whether, in the circumstances, we should explain the reasons for our uncertainty as to the competency of the order. Since we have not been addressed on the matter, we cannot express even a tentative view; and, other things being equal, we would have been inclined to say nothing about the matter and leave it to be considered, if appropriate, in another case. We are mindful, however, that the Opinion of the Temporary Judge has been reported, and that the question of competency was discussed to some extent during the hearing of the reclaiming motion, in open court; and it is possible that that discussion may have received a wider currency. In these circumstances, we think it appropriate that we should explain briefly why there appeared to us to be questions as to competency which merited discussion, but we should make it clear that we do so without intending to express any view. An explanation cannot however be given without an exposition of the legal background (including the relevant English law, as we understand it, by which the Scots law and practice in this area has been greatly influenced).

The legal background

[9] At common law, orders for the recovery of documents, or for the inspection of property, were not generally made until proceedings had been commenced and the record had closed (see e.g. Boyle v Glasgow Royal Infirmary 1969 SC 72). The position was similar under the law of England and Wales. The consequent delay in the disclosure of relevant materials was identified as a problem in the context of personal injuries litigation in England and Wales, in the report of the Winn Committee (Report of the Committee on Personal Injuries Litigation, Cmnd 3691, 1968). Parliament responded in the Administration of Justice Acts 1969 and 1970. The relevant provisions, as subsequently amended, are now contained in the Supreme Court Act 1981, as amended. In particular, section 33 is concerned with orders made prior to the commencement of proceedings, and substantially re-enacts section 21 of the 1969 Act and section 31 of the 1970 Act. It provides:

"33.-(1) On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say -

(a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings; and

(b) the taking of samples of any such property as is mentioned in paragraph (a), and the carrying out of any experiment on or with any such property.

(2) On the application, in accordance with rules of court, of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim -

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce such of those documents as are in his possession, custody or power to the applicant ....."

Section 34 contains similar provisions relating to orders made in the course of proceedings, substantially re-enacting section 32 of the 1970 Act. Section 35(2) concerns the relevant rules of court, and provides that they "may include such incidental, supplementary and consequential provisions as the rule-making authority may consider necessary or expedient". The expression "property" is defined for the purposes of sections 33 and 34 of the 1981 Act (by section 35(5)) as including "any land, chattel or other corporeal property of any description".

[10] Section 1 of the Administration of Justice (Scotland) Act 1972 was partly modelled on the earlier English legislation. Section 1(1) and (2), as amended, provide:

"1.-(1) Without prejudice to the existing powers of the Court of Session and of the sheriff court, those courts shall have power, subject to the provisions of subsection (4) of this section, to order the inspection, photographing, preservation, custody and detention of documents and other property (including, where appropriate, land) which appear to the court to be property as to which any question may relevantly arise in any existing civil proceedings before that court or in civil proceedings which are likely to be brought, and to order the production and recovery of any such property, the taking of samples thereof and the carrying out of any experiment thereon or therewith.

.....

(2) Notwithstanding any rule of law or practice to the contrary, the court may exercise the powers mentioned in subsection (1) ...of this section -

(a) where proceedings have been commenced, on the application, at any time after such commencement, of a party to or minuter in the proceedings, or any other person who appears to the court to have an interest to be joined as such party or minuter;

(b) where proceedings have not been commenced, on the application at any time of a person who appears to the court to be likely to be a party to or minuter in proceedings which are likely to be brought;

unless there is special reason why the application should not be granted".

Section 1(3) provides that the court's power to regulate its procedure

"shall include power to regulate and prescribe the procedure to be followed, and the form of any document to be used, in any application under the foregoing provisions of this section in a case where the application is in respect of proceedings which have not been commenced, and such incidental, supplementary and consequential provisions as appear appropriate; and without prejudice to the said generality, the said powers shall include power to provide in such a case for the application to be granted ex parte....".

Finally, section 1(4) provides:

"(4) Nothing in this section shall affect any rule of law or practice relating to the privilege of witnesses and havers, confidentiality of communications and withholding or non-disclosure of information on the grounds of public interest.....".

[11] A number of differences from the English legislation can be noted. One is that section 1(1) of the 1972 Act contains no exact parallel to section 33(2)(a) of the 1981 Act. A second difference is that section 1(3) of the 1972 Act expressly empowers the court to provide for the making of orders prior to the commencement of proceedings on ex parte application, whereas no such power is mentioned in the 1981 Act. In the event, the rule of court initially made under section 1(3) of the 1972 Act (namely, Rule of Court 95A, added to the 1965 Rules of Court by Act of Sederunt dated December 19, 1972) merely provided that pre-commencement applications should be made by petition, without dealing expressly with ex parte applications; and the 1994 Rules of Court were to similar effect until amended by the 2000 Act of Sederunt which we discuss below.

[12] As we have noted, section 21 of the 1969 Act did not provide for the making of orders ex parte; nor did the Rules of the Supreme Court which gave effect to section 21. During 1974, however, judges in England and Wales began to make ex parte orders which required the defendant to permit the plaintiff's representatives to enter his premises for the purpose of inspecting and taking custody of relevant documents and other property. The practice was considered by the Court of Appeal in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch.55. Lord Denning MR, with whose judgment the other members of the court agreed, said (at page 60):

"Let me say at once that no court in this land has any power to issue a search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say 'Get out'. That was established in the leading case of Entick v Carrington (1765) 2 Wils.K.B.275. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiffs' solicitors or anyone else to enter the defendants' premises against their will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window. It only authorises entry and inspection by the permission of the defendants. The plaintiffs must get the defendants' permission. But it does do this. It brings pressure on the defendants to give permission. It does more. It actually orders them to give permission - with, I suppose, the result that if they do not give permission, they are guilty of contempt of court".

The Master of the Rolls concluded that the court possessed an inherent jurisdiction to order a defendant to permit entry for the purpose of inspecting and removing documents or other property, when it was necessary in the interests of justice. In a concurring judgment, with which Shaw LJ agreed, Ormrod LJ observed (at page 61) that such an order was "at the extremity of this court's powers". Ormrod LJ also stated (at page 62):

"The form of the order makes it plain that the court is not ordering or granting anything equivalent to a search warrant. The order is an order on the defendant in personam to permit inspection".

Following Anton Piller, the practice in England was extended by the decision of the Court of Appeal in EMI Ltd v Sarwar [1977] FSR 146, where it was held that the order could in addition direct the defendants to disclose the names and addresses of the persons responsible for supplying them with the property in question.

[13] The reliance of Anton Piller orders upon the compliance of the defendant (albeit a compliance which the court had required), as distinct from forcible entry and seizure, raised questions however in relation to the privilege against self-incrimination. Those questions were considered in relation to copyright cases in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, where the order required the defendants, first, to allow access to their premises for the purpose of looking for infringing copies, and to allow their being removed to safe custody; secondly, to supply information as to the identities of persons to whom they had supplied, or from whom they had received, infringing copies; and, thirdly, to disclose and produce relevant documents. The House of Lords held that the privilege against self-incrimination had no application to the first of these orders, since privilege could not override the plaintiffs' proprietary rights in infringing copies. The privilege could however be invoked in response to the orders to answer questions and disclose documents. The effect of the decision was abrogated soon afterwards by section 72 of the 1981 Act, but only in relation to proceedings in England and Wales concerned with the infringement of intellectual property rights or passing off.

[14] The competency of making an order ex parte under section 1 of the 1972 Act was considered by the Inner House in British Phonographic Industry Ltd v Cohen, Cohen, Kelly, Cohen & Cohen Ltd 1983 SLT 137. Like Anton Piller, the case concerned an alleged breach of copyright. The petitioners had applied to the court under section 1 to order the respondents to produce to a commissioner within their premises certain documents and certain gramophone records, for purposes including inspection and recovery. The order sought was more limited than in Anton Piller, in that it did not require the respondent to consent to entry and search; and it did not seek, as in EMI Records and Rank Film Distributors, to have the respondents ordered to supply information. The court held that the order sought could competently be granted ex parte: it was an application under section 1; section 1(3) expressly empowered the court to provide for such applications to be granted ex parte; and the relevant rule of court (Rule 95A(c)) provided for such applications to be made by petition, which was a form of procedure in which ex parte applications could be granted. The Opinion of the Court (delivered by Lord President Emslie, according to the reports at [1984] ECC 279 and [1984] FSR 159) also contains the following observation (at page 138):

"The application is not for a search warrant. It is for a controlled recovery of vital evidence in the hands of a commissioner appointed by the court merely to secure its preservation".

The court noted that similar applications made to the English courts were disposed of under their inherent jurisdiction, and observed that the tests applied by the English courts in deciding whether to grant Anton Piller orders (as such orders had come to be known) appeared to be the same as those which the court had suggested were appropriate in Scotland. The court added (at pages 138-139):

"All that we need now add is that where what the respondents in a petition such as this are alleged to have done would constitute a criminal offence the court should consider carefully whether compliance with the order sought under section 1 of the Act would, if it were granted, require the respondents to incriminate themselves. In such a case, under reference to Rank Film Distributors Ltd v Video Information Centre, the proper course will be to refuse to grant the application".

Those observations reflected the fact that the execution of the order required the respondent's compliance. The idea behind the privilege against self-incrimination is that no one should be obliged to produce evidence against himself: nemo tenetur prodere se ipsum. The privilege cannot therefore be asserted to prevent the execution of a search warrant.

[15] Following that decision, ex parte applications under section 1 became a familiar aspect of practice. The usual form of interlocutor initially followed the form approved in that case: it appointed a commissioner, ordained the respondents and anyone acting on their behalf to produce specified documents or other property to the commissioner, and authorised the commissioner to remove the documents or property and to deliver them to the Deputy Principal Clerk of Session. As practice developed over time, however, more invasive orders were sometimes sought, giving authority to the commissioner to enter premises, accompanied by representatives of the petitioner, and to search for items, with a power to break open shut and lockfast places. We are not aware of any reported decision in which the competency of such orders was considered. There was however in one reported case an attempt to include in a section 1 order a requirement that the respondent disclose information. In Friel v Chief Constable of Strathclyde 1981 SC 1 the petitioner applied under section 1 for an order for the recovery of documents containing information as to the identity of a potential defender, and in addition for an order requiring the respondent to disclose the names and addresses of potential defenders. The latter aspect of the application was held by Lord Maxwell to fall outside the scope of section 1. In that regard, Lord Maxwell said (at pages 8-9):

"In my opinion it is clear that there is nothing in section 1 of the 1972 Act which authorises the Court to order anybody to disclose anything. The section is concerned with the preservation or production of things, including documents, and in my opinion it has nothing to do with ordering persons to disclose information which is available to them".

In practice, the commissioner executing a section 1 order might ask the respondent about the whereabouts of the items in question, but the respondent was not, normally at least, compelled to provide information by an ex parte order of the court. The commissioner did not place the respondent on oath, and verbatim notes were not taken of anything said.

[16] Following the decision in the British Phonographic Industry case, alterations to this area of Scots law were effected by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. First, by section 15(3)(b) the privilege against self-incrimination was abrogated in relation to applications under section 1 of the 1972 Act concerned with the infringement of intellectual property rights or passing off. This reflected the change in the law which had previously been made in England in relation to Anton Piller orders, as we have explained. Secondly, by section 19 a new subsection (1A) was inserted into section 1 of the 1972 Act, empowering the court

"subject to subsection (4) of this section, to order any person to disclose such information as he has as to the identity of any persons who appear to the court to be persons who -

(a) might be witnesses in any existing civil proceedings before that court or in civil proceedings which are likely to be brought; or

(b) might be defenders in any civil proceedings which appear to the court to be likely to be brought".

[17] During the later 1980s, the manner in which the Anton Piller jurisdiction was exercised came under criticism from English judges and commentators. In Columbia Picture Industries Inc v Robinson [1987] Ch.38, for example, Scott J said (at page 73):

"The service and execution of an Anton Piller order is likely to have on a respondent a personal as well as a commercial effect. Anton Piller orders are often granted not simply in respect of business premises but in respect of the respondent's home. He is required, on pain of committal, to open the doors to his house to the plantiffs' representatives and to permit a search of the contents thereof. The plaintiffs and their representatives are at liberty to search and rummage through the personal belongings of any occupant of the house and to remove the material they consider to be covered by the terms of the order. The traumatic effect and the sense of outrage likely to be produced by an invasion of home territory in the execution of an Anton Piller order is obvious".

In Chappell v United Kingdom (1989) A 152-A, the European Court of Human Rights held that such an order involved an interference with rights protected by Article 8 of the European Convention on Human Rights, and must therefore be accompanied by adequate and effective safeguards against arbitrary interference and abuse. A number of appropriate safeguards were suggested in Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840 and were reflected in a Practice Direction of 28 July 1994.

[18] Anton Piller orders were subsequently placed on a statutory footing by section 7 of the Civil Procedure Act 1997, following recommendations made by a committee of judges appointed by the Judges Council. Section 7(1) provides:

"7-(1) The court may make an order under this section for the purpose of securing, in the case of any existing or proposed proceedings in the court -

(a) the preservation of evidence which is or may be relevant, or

(b) the preservation of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings".

It is to be noted that section 7(1)(a) refers expressly to the preservation of evidence. Although that is commonly (as in the present case) one of the objectives of applications under section 1(1) of the 1972 Act, such applications depend on the phrase "property as to which any question may relevantly arise": a phrase which Parliament employed separately in section 7(1)(b) of the 1997 Act.

[19] The scope of an order under section 7 is defined by subsections (3) to (5):

"(3) Such an order may direct any person to permit any person described in the order, or secure that any person so described is permitted -

(a) to enter premises in England and Wales, and

(b) while on the premises, to take in accordance with the terms of the order any of the following steps.

(4) Those steps are -

(a) to carry out a search for or inspection of anything described in the order, and

(b) to make or obtain a copy, photograph, sample or other record of anything so described.

(5) The order may also direct the person concerned -

(a) to provide any person described in the order, or secure that any person so described is provided, with any information or article described in the order, and

(b) to allow any person described in the order, or secure that any person so described is allowed, to retain for safe keeping anything described in the order".

It is to be noted that section 7(3)(a) confers an express power to direct that entry be permitted; that section 7(3)(b), read with section 7(4)(a), confers an express power to direct that a search be permitted; and that section 7(5)(a) confers an express power to require the production of "any information.....described in the order". Section 7(5)(a) is reflected in the example of a search order (as Anton Piller orders are now known) annexed to the relevant Practice Direction.

[20] The privilege against self-incrimination is preserved by section 7(7), which provides that the section does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty. It is to be noted that the subsection is drafted on the basis that the privilege entitles a person to refuse to do something, rather than barring action by a third party. It can therefore be related to the scheme of subsections (3) to (5), which envisage orders that are directed against the defendant and require him (subject to any question of privilege) to act in specified ways.

[21] It is necessary finally to consider the Act of Sederunt (Rules of the Court of Session Amendment No.4) (Applications under section 1 of the Administration of Justice) (Scotland) Act 1972) 2000, SSI 2000 No.319. This Act of Sederunt, which came into force on 2 October 2000, substituted a new Chapter 64 in the Rules of the Court of Session, including the Form 64-A which was followed by the interlocutor of the Lord Ordinary in the present case. The Act of Sederunt was made by virtue of the powers conferred on the court by section 1 of the 1972 Act, section 5 of the Court of Session Act 1988 and "all other powers enabling them in that behalf". We have already mentioned the relevant terms of section 1 of the 1972 Act (in particular, the terms of subsection (3)). Section 5 of the 1988 Act empowers the court to regulate its own procedures. In particular, section 5(a) "enables the court to make such regulations as may be necessary to carry out the provisions of any Act conferring powers or imposing duties on the court or relating to proceedings therein" (Edmund Nuttall Ltd v Amec Projects Ltd 1993 SLT 255 at page 258 per Lord President Hope), and section 5(d) empowers the court "to regulate the production and recovery of documents".

[22] The Act of Sederunt was prepared in the light of the impending commencement of the Human Rights Act 1998 (which came into force on the same date as the Act of Sederunt). In view of the relevant case law of the European Court of Human Rights, it was necessary to reform the existing rules of court relating to section 1 applications, which were exceptionally broad, with the consequence that the practice in respect of such applications depended greatly upon the exercise of discretion by the judge and by the commissioner. It was considered necessary, in particular, to clarify the circumstances in which an order should be granted, and the manner in which it should be executed, so as to ensure that there were adequate safeguards to protect the respondent from disproportionate interference with his private and family life, his home and his correspondence. The influence of English procedure on the new Chapter 64 is apparent. Form 64-A, in particular, has many similarities to the form attached to the corresponding Practice Direction in England and Wales.

The competency of the order

[23] We can now explain, against that background, the reasons why we wished to be addressed on the competency of aspects of the order made in the present case. First, the order, in accordance with Form 64-A, expressly authorises the commissioner to enter the specified premises (in the present case, the respondent's home) "whether the respondent has allowed entry or not", and then to search the premises and remove the listed items "unless the respondent is taking legal or other professional advice on the question of having the order varied". The notice (in Form 64-B) which the commissioner is required to give the respondent similarly informs him (at paragraph 10):

"The Commissioner and the people mentioned as representatives or assistants have a right to enter the premises even if you refuse to allow them to do so....".

There would appear to us to be a question meriting consideration as to whether the granting of such a warrant is authorised by section 1(1) of the 1972 Act. We note the constitutional issues involved (to which Lord Denning adverted in Anton Piller) and the associated principles of statutory interpretation. In that regard, reference might be made to Morris v Beardmore [1981] AC 446 at page 455 per Lord Diplock ("if Parliament intends to authorise the doing of an act which would constitute a tort actionable at the suit of the person to whom the act is done, this requires express provision in the statute") and at page 463 per Lord Scarman ("it is not the task of judges, exercising their ingenuity in the field of implication, to go further in the invasion of fundamental private rights and liberties than Parliament has expressly authorised"). We also note Lord President Emslie's observation in the British Phonographic Industry case that an application under section 1 "is not for a search warrant". As we have explained, the discussion in that case of the privilege against self-incrimination may be premised on the view that a section 1 order requires the compliance of the respondent. We also note that section 1(4) of the 1972 Act provides that nothing in section 1 affects any rule of law or practice relating to privilege, and that section 15(3)(b) of the 1985 Act assumes that the privilege against self-incrimination applies (except to the extent that it is excluded by that provision) to the execution of section 1 orders.

[24] It may however be arguable that the terms of section 1(1) of the 1972 Act, empowering the court to order inter alia the recovery of property, read with the power in section 1(3) to make such supplementary and incidental provisions as appear to the court to be appropriate, are sufficiently wide to enable the court to authorise forcible entry on to private premises and the carrying out of a search. We also note that the opening part of the order requires the commissioner to explain to the respondent that he may be entitled to claim that items are privileged. As we have explained, however, it may be that the privilege against self-incrimination is not something which attaches to items, but is rather a basis on which a person can refuse to act in a given manner. The order might perhaps be construed as entitling the respondent to refuse to allow the commissioner to carry out a search (and to act in other specified ways) only if he "is taking legal or other professional advice on the question of having the order varied"; but the claiming of the privilege may not be intended to be conditional on obtaining advice about seeking a variation of the order.

[25] Secondly, the order, again in accordance with Form 64-A, requires the respondent to inform the commissioner immediately of the whereabouts of the listed items, and to provide the commissioner with a list of the names and addresses of everyone to whom he has given any of the listed items. It is those parts of the order which, in the present case, the respondent is said to have breached. Form 64-A in fact goes further, and requires the haver also to provide the commissioner with the names and addresses of everyone who has supplied him with any of the listed items. The form is, in relation to these matters, modelled on the English form. As we have explained, in England such orders now have a clear statutory basis in section 7(5) of the 1997 Act. The position in Scots law may be less clear.

[26] As we have explained, section 1 of the 1972 Act was interpreted in Friel v Chief Constable of Strathclyde as having "nothing to do with ordering persons to disclose information". The 1985 Act however inserted a new subsection (1A), empowering the court to order the disclosure of information as to the identity of any persons who might be witnesses or defenders in future civil proceedings. In the present case, there is no suggestion in the petition that any persons to whom the respondent had given any of the listed items might be witnesses or defenders in future proceedings: the part of the order in question appears rather to have been applied for in order to identify potential havers of the listed items. Although, therefore, it is a part of the order prescribed by the rule of court, there may be a question as to the basis on which the court could properly grant it.

[27] It may, of course, be argued that when a commission and diligence is granted at common law, questions can be put to the haver concerning the whereabouts of the documents in question; but it seems to us that the context is different in a number of respects. In the first place, it has been held that a commission and diligence can only be granted for the recovery of documents, and not of other forms of property (HM Advocate v Fleming (1864) 2 M 1032; Mactaggart v MacKillop 1938 SLT 559). Secondly, the execution of the commission, in such a case, involves the citation of the haver to give evidence on oath before the commissioner. As Bell's Dictionary explains in its definition of "commission and diligence" (7^th ed., 1890, page 199):

"The commissioner is delegated by the court to take the oaths, and to report to the court the depositions of witnesses; and the judicial warrant, whereby the power is conferred on the commissioner, is called a commission. The commission is invariably accompanied by a diligence, which is in like manner a judicial warrant, under which the witnesses are cited, and may be compelled to attend the commissioner for examination".

That account of a commission and diligence to take evidence is an apt description also of a commission and diligence for the recovery of documents, subject to the substitution of "havers" for "witnesses". Although the form of order prescribed by Form 64-A grants commission and diligence, it is unusual in practice (although not incompetent: Iomega Corporation v Myrica (UK) Ltd (No.2) 1999 SLT 796 at page 799) for that part of the order to be executed; and the order to disclose information does not bear to be dependent on that happening. It may be that the competency of such an order must rest, like much else, on what can be derived by implication from the terms of section 1 of the 1972 Act; although, in that regard, we note Parliament's express provision of requirements to disclose information in other contexts (e.g. in relation to the police and other public authorities, in section 1(1A) of the 1972 Act, and in the English legislation concerning search orders).

[28] Lastly, in relation to this aspect of the case, we would observe that any lack of clarity which has resulted from the development of new forms of procedure is particularly undesirable in this area of the law: people are entitled to expect that invasions of their privacy and their property will be the subject of clear provision.

Incompetent orders and contempt of court

[29] A further question on which the court would have required to be addressed, in the event that the order were held to be incompetent, was whether the failure to obey such an order could constitute a contempt of court, or whether the incompetency bore only upon how the court should deal with the contempt. Counsel for the respondent submitted that a failure to obey an incompetent order could not constitute a contempt of court, since such an order should be treated as being of no effect. We note however that there is a substantial body of English and Commonwealth authority to the effect that the orders of a court, even if irregularly made, have to be obeyed unless and until they are varied or set aside: see, for example, Hadkinson v Hadkinson [1952] P 285, Isaacs v Robertson [1985] AC 97 and M v Home Office
[1992] QB 270. In the event, it is unnecessary to consider this question further.

The public interest

[30] As we have explained, these proceedings were initiated by the minuters following what was alleged to be the deliberate failure of the respondent to give accurate information to the commissioner concerning one of the listed items. The item in question was however subsequently produced to the commissioner. There has therefore been no continuing interference with the execution of the order which the minuters had obtained from the court. Their rights in the substantive proceedings against the respondent and others, for interdict and damages, will not be affected by the outcome of these proceedings.

[31] The rationale of the court's jurisdiction in contempt is to uphold the rule of law by protecting or enforcing the authority of the court. As Lord Justice-General Emslie said in HM Advocate v Airs 1975 JC 67 at page 69, the court's power to punish contempt

"arises from the inherent and necessary jurisdiction to take effective action to vindicate its authority and preserve the due and impartial administration of justice".

Since the jurisdiction is inherent in the court and is exercised in order to protect the administration of justice, it is for the court to determine the circumstances in which it will permit the jurisdiction to be invoked. As Lord Diplock observed in Attorney General v Times Newspapers Ltd [1974] A.C.273 at page 312, in relation to the corresponding English procedure of committal for contempt:

"[I]t is a procedure which if instituted by one of the parties to litigation is open to abuse....The courts have therefore been vigilant to see that the procedure for committal is not lightly invoked in cases where, although a contempt has been committed, there is no serious likelihood that it has caused any harm to the interests of any of the parties to the litigation or to the public interest.....[T]he court's discretion in dealing with a motion for committal is wide enough to entitle it to dismiss the motion with costs, despite the fact that a contempt has been committed, if it thinks that the contempt was too venial to justify its being brought to the attention of the court at all".

In a case such as the present, where the alleged contempt has not caused any harm to the interests of the minuters, the only question is whether it is in the public interest that the court should permit its jurisdiction to be invoked.

[32] When answering that question there are many factors which the court will require to consider, depending on the circumstances of the case. They will include factors bearing on the gravity of the alleged contempt, including whether it was persisted in to the point at which it was likely to interfere with the course of justice. They will include factors bearing on the extent to which the proceedings would be likely to promote the authority of the court and the administration of justice: whether, for example, the continuation of the proceedings would be likely to have a salutary effect by drawing the attention of the legal profession to a particular problem, or whether the discontinuation of the proceedings would run the risk of encouraging parties to treat the court's orders as being of little importance. They may include the relationship between the contempt proceedings and other proceedings: whether, for example, the contempt proceedings will disrupt the progress of the substantive proceedings or will involve a duplication of evidence; or whether, as was indicated in the Anton Piller case, the party in contempt may be effectively penalised through the contempt being brought out in the substantive proceedings, with the effect of damaging his credibility. The court will also wish to have regard to whether the proceedings would be likely to justify the public resources that would have to be devoted to them: particularly in a complex case, contempt proceedings may involve a substantial call on court time and resources. These are not considerations which the court can disregard: the proper administration of justice includes ensuring that cases are dealt with expeditiously and without undue demands on the resources of the court.

[33] In the present case, any failure to comply with the order was not persisted in: if it had been, the matter might appear differently. We note that the parties are ready to proceed to proof in the substantive action, and that the respondent's conduct towards the commissioner may (subject to any questions of admissibility) be raised at the proof. We also note that these proceedings have already given rise to considerable procedure over a period of twelve months, including a two day hearing in the Outer House and a one day hearing in the Inner House. If the questions as to competency were to be addressed, there would require to be a further hearing before the Inner House. If the reclaiming motion were to be refused, there would then require to be a proof. Such extensive procedure appears to us to be disproportionate in the circumstances. We do not consider that the continuation of these proceedings would be likely to promote the authority of the court more generally, or that their discontinuation would be likely to undermine that authority.

[34] In all the foregoing circumstances, and after balancing the various factors which we have mentioned, we concluded that the public interest did not justify the continuation of these proceedings. We accordingly recalled the interlocutor of the Temporary Judge and dismissed the minute, on the basis that the court declined to take notice of the alleged contempt. Each party was required to bear its own expenses.