Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 61
P1801/05	OPINION OF LORD MACKAY OF DRUMADOON in Petition of THE SCOTTISH MINISTERS Petitioners; for a Recovery Order in terms of Section 26 of the Proceeds of Crime Act 2002 against RUSSELL STIRTON First Respondent; and ALEXANDER ANDERSON Third Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioners: Heaney; Scottish Government Civil Recovery Unit

First Respondent: Party

Third Respondent: Party

30 April 2009

Introduction

[1] This petition came before me on 19 March 2009 for a By Order hearing. The By Order hearing was arranged in advance of an eight week proof, which is scheduled to commence on 19 May 2009. The main purpose of the hearing was to enable the parties to update the Court as to the state of their preparations for that proof.

[2] The hearing on 19 March also afforded the opportunity of dealing with a continued motion, which had originally come before Lady Stacey. The motion had been enrolled on behalf of the third respondent on 24 February 2009. It sought an order from the Court in terms of Rule of Court 36.2.-(5) fixing caution for expenses in respect of 20 witnesses the third respondent wished to cite for the forthcoming proof.

[3] On 26 February 2009 Lady Stacey granted the motion in respect of 16 of the individuals named in the List of Witnesses lodged on behalf of the respondents (No. 32 of Process). The motion was continued in respect of the other 4 individuals, who are (a) Mrs L. Harris, a retired Solicitor, who was formerly Head of the Petitioners' Civil Recovery Unit, which is located within the Crown Office's premises in Edinburgh; (b) Mr. R. Macniven, Solicitor, who is currently a member of the Civil Recovery Unit; (c) Mr. D. Harvie, a Solicitor and Procurator Fiscal, who was formerly attached to the Civil Recovery Unit, and who currently serves in the Crown Office; and (d) the Right Honourable Elish Angiolini, Q.C., the Lord Advocate.

[4] When Lady Stacey continued the motion she appointed the third respondent to lodge a written statement justifying his reasons for wanting to call those four individuals as witnesses. She also appointed the petitioners to lodge Answers thereto, if so advised. Following the hearing on 26 February the third respondent lodged a document summarising the reasons why he considered the four witnesses "to be able to give material evidence" (No. 33 of Process). Thereafter the petitioners lodged Answers (No. 34 of process).

[5] The document lodged by the third respondent (No. 33 of Process) was in the following terms:

"Mrs L Harris

Surely I am entitled to question this witness on the content and source of the information that was used to compile the Affidavit dated 26^th September 2007 based on the best Evidence Rule and (Lord Glennie Opinion Paragraphs 21 and 31). She executed an Affidavit and there is no basis for her to be excused.

Mr. R. Macniven (Solicitor)

I consider that Mr. R. Macniven who was not involved at the beginning of the Civil Recovery Petition dated 4 Feb 2005 may in fact be misdirecting himself by the briefing that he must have had upon taking up his duties in this regard. Also I wish to explore with him why the petition has now been substantially amended and diluted from what it was previously.

Mr. D. Harvie (Procurator Fiscal)

I consider that this can give material evidence concerning the Precognition on Oath of Mr. A Gibson and Mr. K. McLeod to explore with him the evidence of Mr. Gibson and Mr. McLeod. I want to explore with him the basis of questions that he put to Mr. Gibson and Mr. McLeod. What information did he have to put these question (sic). Also he precognosed Mr. Yousaf (Accountant) to explore with him the evidence of Mr. S. Yousaf.

Mrs E. Angiolini (Lord Advocate)

I consider that as well as being the Lord Advocate for Criminal Matters, she is also the Scottish Ministers Chief Law Agent in Civil Matters and according (sic)can give evidence concerning my letters to herself and asking what action she took in relation to this very serious matter on behalf of the Scottish Ministers. Also I wish to explore with her the direction and guidance which was issued by her in relation to the criminal inquiry and way the Criminal Prosecution was dropped."

[6] The Answers lodged by the petitioners in response (No. 34 of Process) were in the following terms:

"Lorna Harris

1.1 Ms Harris is a retired solicitor. She was, until she retired, the Head of the Scottish Government's Civil Recovery Unit. She was in post when the civil recovery proceedings began. The civil recovery proceedings began on 3^rd February 2005 when the Court made an interim administration order.

1.2 The issues which are to be resolved at proof are those defined in the pleadings and in the calls for further particulars and answers therefore ('the defined issues'). There is no admissible evidence which Ms Harris can give. To be admissible evidence must be relevant to the defined issues. In any event, the communications between Ms Harris and others in contemplation of litigation or in the course of her capacity as a solicitor are confidential.

1.3 Ms Harris provided an affidavit in connection with the petitioners' opposition to their motion to recall the interim administration order. On 5^th February 2008 the Lord Ordinary (Glennie) decided that the order would not be recalled (reported at 2008 SLT 505). Her affidavit was relevant to the issue before Lord Glennie.

1.4 The affidavit sworn by Ms Harris is in process. Its contents are summarised in Lord Glennie's opinion at paragraphs 21 to 23. The issue of whether certain sums were extorted from the taxi business, Spring Radio Cars Limited ('Spring'), run by Allan Gibson and Kenneth McLeod is focused on record, and will be explored in evidence. Final lists of witnesses have not yet been lodged. The petitioners intend to call Mr. Gibson and Mr. McLeod. They intend to call police officers who spoke to them. They intend to call officials of HMRC who investigated the flow of funds from Spring to a business run by the petitioners (sic). They also intend to lead evidence that the services (if any) supplied by the respondents' business to Spring bore no relationship to the sums purportedly paid for them. The petitioners intend to invite the Court to conclude, on the basis of all of the evidence, that certain sums were paid by Spring to the respondents' business as a result of unlawful conduct.

1.5 The first rule of evidence is relevancy. Evidence must be relevant to the defined issues. The question of whether, on the information which she had, Ms Harris was correct to form the view which she expressed in the affidavit is not relevant to the defined issues.

1.6 Furthermore, communications between Ms Harris and others in the course of preparation for litigation are confidential.

1.7 The Court ought not to allow her to be cited.

Ruaraidh Macniven

2.1 Mr. Macniven is a solicitor. He is the Deputy Head of the Scottish Government's Civil Recovery Unit. He is the principal instructing solicitor in the present petition proceedings.

2.2 There is no evidence which Mr. Macniven can give which is admissible. Evidence about any briefings which he may, or may not, have received is not relevant to the defined issues. If he was briefed the contents of the briefing, like conversations with counsel and his colleagues, and instructions received from the Ministers, are confidential. The Court ought not to allow him to be cited.

David Harvie

3.1 Mr. Harvie is a solicitor. He is a serving procurator fiscal. He was the examiner when the precognitions of Mr. Gibson and Mr. McLeod (mentioned above) were taken on oath. The transcripts of the precognitions on oath will be productions at the proof. They have been available to the respondents for some time. The contents of the precognitions on oath are relevant to the defined issues. The basis on which Mr. Harvie put his questions are not relevant and is also confidential. The Court ought not to allow him to be cited.

Lord Advocate (Elish Angiolini QC)

4.1 The Lord Advocate is head of the system of criminal prosecution. She is also a Scottish Minister. The Civil Recovery Unit falls within her remit as a Minister but not as head of the system of criminal prosecution. The answers which the Lord Advocate has, or has not, given to letters written to her by the respondent are not relevant to the defined issues. The communications between her and the Civil Recovery Unit in relation to this case are confidential as being in relation to or in contemplation of litigation.

4.2 Furthermore, the reason that the Lord Advocate's predecessor did not proceed with the prosecution of the respondents is a matter which is not relevant to the defined issues; it is also a matter which is subject to confidentiality.

4.3 The Court ought not to allow the citation of the Lord Advocate."

The Affidavit sworn by Lorna Harris, which is referred to in those Answers, and a copy of which is No 38 of Process, was in the following terms:-

"At Brussels on the Twenty Sixth day of September in the year Two Thousand and Seven in the presence of Jacquelyn Freda MacLennan, Solicitor and Notary Public, 62 Rue de la Loi, 1041, Brussels, Belgium, compeared Lorna Harris, Head of the Civil recovery Unit, Victoria Quay, Edinburgh, who being solemnly sworn deponed and depones as follows:-

1. My name is Lorna Harris. I am Head of the Civil Recovery Unit (CRU). The CRU performs the functions of the Scottish Ministers as enforcement authority for the purposes of Part 5 of the Proceeds of Crime Act 2002. Those functions include taking action under that Act to recovery property which the Scottish Ministers believe is recoverable property for the purposes for part 5.

2. I understand that restraint orders in relation to the first and thirteenth respondents ('the respondents') were obtained by the Crown Office on 13^th January 2004. A petition warrant in relation to the respondents was granted on 1^st March 2004 and the respondents appeared in respect of that warrant on 4^th March 2004. They were fully committed on 9^th March 2004 and released on bail subject to special conditions not to approach two witnesses, Allan Gibson and Kenneth McLeod. The restraint orders were recalled on 3^rd February 2005. On the same date, the present petition was presented and granted ex parte. Papers in relation to the restraint orders were passed to CRU by Crown Office on 28^th January 2005. The averments in the present petition were based on the information contained in those papers. In particular, they were based on evidence gathered by police and HM Revenue and Customs during their investigations into the respondents' business and alleged criminal activities during the relevant period. They were based upon investigations by police and HM Customs into the business entities associated with the respondents including RS Construction, A & S Group, A & S Group (Leasing), and Thomson's Bar. They were based upon statements made among others by the witnesses McLeod and Gibson to police officers and officers of HM Revenue and Customs between August and December 2003. Those statements were to the effect that money paid by Spring Radio Cars for management services was for 'protection' and that no management or other services had in fact been provided. The witnesses McLeod and Gibson withdrew their earlier statements when formally precognosced on 4^th October 2004. Their position at that time was that they had made the statements under pressure from the police. The police officers who interviewed them formed the view that they had withdrawn their statements under pressure from the respondents. None of the statements from other individuals on which the averments were based have been withdrawn.

3. The averments in the petition were further based upon documentation recovered in searches at 'The Limes', Mugdock, Milngavie, Glasgow, The 'Loveboat', 217 Cumbernauld Road, Glasgow, Springburn Service Station Shell Garage, 911 Springburn Road, Glasgow, Spring Road, Glasgow, Spring Radio Cars Limited, Unit 2, Foundry Street, Glasgow, 37 Cowan Wynd, Uddingston, Glasgow, Thomsons Bar, 275 Springburn Way, Glasgow, and Yousaf & Company Accountants, 1007 Argyle Street, Glasgow. They were based on documents recovered as a result of production orders served on John O'Donnell, 15 Clarkston Road, Glasgow, Messrs. Maclay Murray & Spens, 151 St Vincent Street, Glasgow, Messrs Brunton Miller, 22 Herbert Street, Glasgow and Archibald Sharp & Son, 270 Dumbarton Road, Glasgow. They were further based upon financial analysis of the documents recovered.

4. An interim administrator was duly appointed by the Court on 3^rd February 2005. The administrator prepared a management report dated 15^th March 2005 which I have appended to this Affidavit. That report concluded that the acquisition of property held by the respondents warranted further investigation. The interim administrator prepared an interim recoverable property report dated 12^th July 2005 which I have appended to this Affidavit. The interim administrator noted that she had identified property held by the respondents valued at £1,925,904.54 in relation to which she was unable to identify sufficient legitimate income to explain its acquisition. The interim administrator considered that the said property had been acquired from the proceeds of unlawful conduct. The interim administrator prepared a further report dated 6 September 2007 which I have appended to this report. That report concluded that, due to the non co-operation of the respondents by failing to attend for interviews, the interim administrator's investigations were incomplete, and that the findings and conclusions of the interim recoverable property report dated 12^th July 2005 therefore remained unchanged. On the basis of updated valuations, the interim administrator advised that the value of the recoverable property totalled £1,898,143.05, with an additional £328,635.07 of associated property.

5. A first order in the petition for a recovery order was granted on 1 September 2005. A copy of that petition is appended to this report. The petition for a recovery order is based on the same information as that which formed the basis for the petition for an interim administration order, together with further information gathered as a result of the interim administrator's investigations and analysis. Inventories of productions and a list of witnesses will be intimated in the normal way when dates for a proof in relation to that petition have been fixed.

All of which is the truth as the Deponent shall answer to God."

[7] The reference to an Opinion of Lord Glennie is to the Opinion dated 5 February 2008 which he issued in other proceedings in which the parties are involved. Those proceedings are a petition at the instance of the present petitioners for an interim administration order in terms of the Proceeds of Crime Act 2002 and for warrant for inhibition and arrestment (P223/05). The Opinion was issued in respect of a motion for recall of an interim administration order dated 3 February 2005.

[8] In the course of dealing with that motion Lord Glennie allowed parties to lodge affidavits, whether in support of the motion or by way of opposition to it. The affidavits lodged were before Lord Glennie during the substantive hearing of the motion, which extended over three days in November and December 2007. Amongst the documents lodged by the petitioners was the affidavit in the name of Lorna Harris, who was at that time Head of the Civil Recovery Unit.

[9] In the event Lord Glennie refused the motion for recall of the interim administration order. His reasons for reaching that decision are set out in the Opinion to which I have referred.

Rule of Court 36.2

[10] Before I turn to deal with the specific grounds advanced for opposing the citation of each of the four individuals, I should say something about the Rule of Court under which the motion is enrolled. Rule of Court 36.2 provides as follows:-

"36.2.-(1) A witness shall be cited for a proof by service on him of a citation in Form 36.2-A-

(a) by registered post or the first class recorded delivery service, by the agent for the party on whose behalf he is cited; or

(b) personally, by a messenger-at-arms.

(2) A certified copy of the interlocutor allowing a proof shall be sufficient warrant to a messenger-at-arms to cite a witness on behalf of a party.

(3) A certificate of citation of a witness-

(a) under paragraph (1)(a) shall be in Form 36.2-B; and

(b) under paragraph (1)(b) shall be in Form 36.2-C.

(4) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a witness cited by him to appear at a proof.

(5) Where a party to a cause is a party litigant, he shall-

(a) not later than 12 weeks before the diet of proof, apply to the court by motion to fix caution for the expenses of witnesses in answering a citation in such sum as the court considers reasonable having regard to the number of witnesses he proposes to cite and the period for which they may be required to attend court; and

(b) before instructing a messenger-at-arms to cite a witness, find the caution which has been fixed.

(6) A party litigant who does not intend to cite all the witnesses referred to in his application under paragraph (5)(a) may apply by motion for variation of the amount of caution."

[11] Rule of Court 36.2 provides that a party litigant in the Court of Session cannot cite, by means of postal citation, a witness who he wishes to give evidence at a proof. A party litigant can only cite a witness by instructing a messenger-at-arms to do so and such instruction can only be issued once the party litigant has sought and obtained from the Court, under the provisions of Rule of Court 36.2.-(5)(a), an order fork, caution and has lodged the caution the Court has fixed.

Submissions

[12] Counsel for the petitioners submitted that Rule of Court 36.2.-(5) enabled the Court to exercise a "gatekeeper function" and by doing so control the number and identity of the individuals that any party litigant can cite to give evidence at a proof. The gatekeeping function enabled the Court to ensure that individuals were not cited to give evidence, if they were not in a position to give competent and relevant evidence. Equally it enabled the Court to prevent individuals being cited for some reason other than their ability to give such evidence. The Rule of Court also provided the Court with a mechanism to ensure that when witnesses were cited at the instance of a party litigant their travelling and subsistence expenses were guaranteed. Reference was made to a number of authorities, which I deal with later.

[13] As far as the merits of the motion were concerned, counsel took me though the terms of the Answers (No. 34 of Process) and argued that there were good grounds for refusing the motion in respect of each of the four individuals. As far as Lorna Harris was concerned he argued that the contents of Para. 2 of her Affidavit, whilst they had been relevant to the issue that had been before Lord Glennie, were not of any relevance to what would be in issue during the forthcoming proof. As far as the Lord Advocate was concerned, he added that whilst there had been some correspondence between the Lord Advocate and the respondents, whilst she had been Solicitor General, none of the letters had been lodged in process and none were referred to in the pleadings.

[14] The third respondent spoke first in reply to the submissions made on behalf of the petitioners. He explained that he did not intend to ask any questions that would encompass breaching legal privilege or client confidentiality. He invited me to continue the motion to be dealt with by the Lord Ordinary at the proof. He argued that being required to move the motion at this stage placed him at a severe disadvantage. That was because it forced him to "show his hand". He knew what he wished to raise with the four individuals in the witness box, but at this stage he did not wish to divulge what that was. He did not wish to do so until he started leading the witnesses. For that reason, he was not prepared to amplify on what he had set out in No. 33 of Process.

[15] The third respondent did however explain that he wished to explore with Lorna Harris and the other witnesses issues relating to the petitioners failure to disclose matters to the Court, which had been the subject of discussion in Para. 30 of Lord Glennie's Opinion and also in an earlier Opinion of Lord Macfadyen in the related proceedings, reported as The Scottish Ministers v Stirton 2006 SLT 306.

[16] The third respondent also argued that the refusal of the motion would amount to an infringement of his rights under Article 6 of the European Convention of Human Rights. He argued that he had a right to defend the proceedings brought against him and that it was not for the petitioners to choose who his witnesses might be.

[17] The first respondent intimated that he had nothing to add to the third respondent's submissions.

Discussion

[18] The annotations to Rule of Court 36.2 in the Parliament House Book state that Rule 36.2.5 was introduced in 1986 "to deal with party litigants citing numerous witnesses from the Sovereign down". The annotation goes on to suggest that the Rule does not empower a court directly to limit the number of witnesses, but simply to order the party litigant to find caution to ensure that the witnesses' expenses are covered. Despite the assistance of the Lord President's Private Office, it has not proved possible to locate the papers relating to the introduction of the Rule in 1986.

[19] In the present case no issue arises in respect of caution. There is no suggestion that any of the four individuals will require to incur travelling expenses to attend court and, in any event, it was indicated on behalf of the petitioners that if any of the four individuals are required to give evidence they will attend when asked to do so. Furthermore, the third respondent made clear that he was willing to lodge, by way of caution, such sum as the Court considered would be reasonable to meet any expenses that might be incurred by any of the four individuals by reason of their attendance for the proof.

[20] In the present case the issue which does arise is this. If a party litigant is unable to demonstrate that a particular individual is in a position to give competent and relevant evidence at a proof, does Rule of Court 36.2 give the Court power to prevent the party litigant from citing that individual as a witness? In my opinion, a related and more fundamental issue arises, namely whether the Court has an inherent power anyway to prevent any litigant, and in particular a party litigant, from citing an individual as a witness, when the litigant is unable to demonstrate the individual concerned would be in a position to give competent and relevant evidence at the proof.

[21] In opposing the motion in respect of each of the four individuals, counsel for the petitioners referred me to a number of authorities: - Alfred Trumpton Amusement Machines Ltd v Customs & Excise Commissioners [1972] 2 Q.B. 102; McDonald v H.M. Advocate 1989 J.C. 44; Three Rivers District Council &c v Governor & Company of the Bank of England (No. 6) [2005] 1 AC 610; and Tonner v Riach & Hall 2008 S.C. 1. Reference was also made to Walker & Walker on the Law of Evidence in Scotland (3^rd Ed.), 2009 at paras. 10.2.1 and 10.3.1.

[22] Of these authorities McDonald v H.M. Advocate proved to be of greatest assistance. In that criminal appeal, the sheriff had determined that the evidence the accused had sought to elicit from witnesses cited for the defence was irrelevant and incompetent. The Court held that having reached that determination, the sheriff had erred in failing to take the further step of excusing the witnesses from their citations. It is clear from the Opinion of the Court delivered by Lord Justice Clerk Ross, at pages 49-50, that the Court stopped short of holding that the sheriff should have declared the citations to be of no effect. However, the Court held that the sheriff had power to excuse the witnesses from complying with their citations and should have done so.

[23] In my opinion, that case, albeit one decided in the High Court of Justiciary, illustrates how any court has the inherent power to prevent any abuse of process in the course of proceedings before it. In my opinion, that power extends to controlling the citation of individuals as witnesses and the excusal of those who have been cited from complying with their citations. My enquiry of counsel for the petitioners as to the position in England resulted in there being drawn to my attention two other cases which I have found to be of assistance. Those cases are Raymond v Tapson (1882) 22 Ch. D. 430, CA and R v Baines (1909) 1 KB 258. In the former case, Jessel M.R. referred to the court being able to restrain the abuse of the power of parties to summon witnesses by subpœna. In the latter case, Bigham J and Walton J., sitting in the King's Bench Division of the High Court, set aside writs of subpœna served on the Prime Minister and Home Secretary of the day, on being satisfied that neither individual was in a position to give relevant evidence in a forthcoming criminal trial. In doing so the court made it clear that it was not sufficient for an individual served with a subpœna to swear that he could not give any relevant evidence. The court required to be satisfied that the process was being used for some indirect or improper object, other than the giving of relevant evidence. It was also made clear that the court's decision to set aside the subpœnas in no way interfered with the power of the judge at a trial to order the attendance of either individual to give evidence, if he deemed it necessary for the individual to do so.

[23] Both those cases illustrate the courts in England have an inherent power to restrain any abuse of the power of litigants to summon witnesses. In my opinion there is no reason why, as a matter of principle, the courts in Scotland should be in a different position. In my opinion, it is also appropriate that such a power can be exercisable either before or after any witness citation has taken place.

[24] The provisions of Rule of Court 36.2.-(5) enable that inherent power to be exercised before the citation of witnesses by a party litigant. In my opinion, therefore, if there are good reasons for considering that the third respondent wishes to cite any one or more of the four individuals for some reason other than any ability to give competent and relevant evidence that would justify refusing the motion to fix caution in respect of the individual(s) concerned.

[25] Turning to the circumstances relating to each of the four individuals, I have reached the following conclusions. As far as Lorna Harris is concerned, I have decided that I should grant the motion. I do so having regard to the terms of the affidavit she swore and which was lodged on behalf of the petitioners in the related proceedings. In my opinion, the fact that the affidavit was lodged, and its terms, make it is impossible to say at this stage that were Lorna Harris to be called to give evidence during the forthcoming proof, she could not be asked any questions that were capable of eliciting competent and relevant evidence. The affidavit makes some reference to the existence and contents of the papers that came into the possession of the Civil Recovery Unit on 28 January 2005. If during the course of the forthcoming proof, issues arose as to which documents contained the evidence gathered by police and H.M. Revenue and Customs during their investigations into the respondents' business and alleged criminal activities and were handed over to the Civil Recovery Unit, it is possible that Lorna Harris could give competent and relevant evidence as to the identities of the documents concerned. Any questioning would, of course, be subject to the principle that any communications between Lorna Harris and her colleagues in the Civil Recovery Unit, counsel and the petitioners, and any investigations carried out by Lorna Harris in contemplation of and in the course of the present proceedings are confidential. It would be for the Lord Ordinary conducting the proof to deal with any objections that may be taken to particular questions or lines of evidence that any party sought to raise were Lorna Harris to give evidence.

[26] As far as the other three individuals are concerned, on the basis of the information before me, including the pleadings in the present proceedings, the contents of Nos. 33 and 34 of Process and the submissions I heard, I am satisfied that the motion should be refused. In the present proceedings, Mr. Macniven is acting in the capacity of solicitor for the petitioners. He has acted in that capacity throughout. As such he is bound by client confidentiality and could not be asked any questions relating to the matters set out in the section relating to him in No. 37 of Process, or indeed to "the defined issues" as focussed in the written pleadings and the Calls for Further Specification and Answers (Nos. 24, 25, 26 and 28 of Process). In my opinion, it is possible to determine at this stage that any evidence Mr. Macniven could give relating to such matters would be inadmissible. For that reason, I have reached the view that the third respondent's wish to cite him as witness is likely to be for some inappropriate reason.

[27] The position of Mr. Harvie is similar. The third respondent seeks to lead evidence from Mr. Harvie as to the information available to him when he precognosed Mr. Gibson, Mr. McLeod and Mr. Yousaf. The first two witnesses were precognosed on oath. All the precognitions were carried out by Mr. Harvie when he was acting in his capacity as a procurator fiscal. When carrying out criminal investigations in the exercise of that role, Mr. Harvie enjoys absolute privilege. For that reason, it would not be competent to seek to elicit any evidence from him about the matters that the third respondent wishes him to give evidence about. Here again, the concern arises that there is some inappropriate motive behind the third respondent's wish to cite Mr. Harvie as a witness.

[28] The same applies to the Lord Advocate. The third respondent seeks to explore issues relating to, and decisions taken, during the criminal inquiry and criminal proceedings relating to the first respondent and himself. The Lord Advocate enjoys an absolute privilege against any questioning in a court of law in relation to such matters, whether the decisions were taken by her (or in her name) or by her predecessor in office. Insofar as the third respondent seeks to lead evidence from the Lord Advocate as to her actings in her capacity as legal adviser to the petitioners, that would involve questioning about matters that are confidential in that they involve legal investigations and advice in relation to and in contemplation of litigation. The same would apply to any questioning of the Lord Advocate in her capacity as a Scottish Minister and one of the petitioners. Although some reference was made to correspondence between the Lord Advocate and the respondents, standing the fact that the correspondence has not been lodged as a production, the terms of the parties' pleadings and the third respondent's unwillingness during his submission to elaborate on the reasons why he wishes to call the Lord Advocate to give evidence, the existence of that correspondence has not persuaded me that I should fix caution to enable the third respondent to cite her as a witness.

[29] Although I was not addressed in detail on the question of caution, I have decided to fix caution in respect of the expenses of Lorna Harris at a figure of £300. That is figure is proportionate to the level of caution selected by Lady Stacey, when she fixed caution in respect of the citation of the 16 witnesses. I have done so in order to avoid the expense of a further By Order hearing. I will reserve all questions of expenses.