Scottish Court of Session Decisions

Petitioner: Richardson, MacRoberts LLP

31 January 2013

[1] This is an application under rule 45(1) of the Scottish Arbitration Rules for an order for the disclosure of documents and other material evidence by third party havers. A question has arisen as to whether the arbitrator should approve the specification of documents before a party to the arbitration applies to the court for such an order.

[2] The petitioner ("SGL") and RGB Limited ("RGB") are parties to an arbitration in relation to a building contract in which SGL is the employer and RGB the main contractor. SGL wishes to recover documents in the hands of RGB's sub‑contractors which it considers to be material to and necessary for the presentation of its case at a future proof diet.

[3] On 14 December 2012 SGL's solicitors intimated a motion seeking the arbitrator's approval of a specification of documents. Thereafter, they provided a list of the intended third party havers from whom they expected to seek recovery of the documents. RGB's solicitors initially sought an opportunity to make representations on the application but later stated that they did not wish to make any.

[4] On 21 December 2012 the arbitrator requested SGL's solicitors to provide legal authority in support of the application and, when informed that there was no relevant case law on the Arbitration (Scotland) Act 2010 ("the 2010 Act"), declined to approve the specification of documents even as a matter of principle. He observed that rule 45 permitted a unilateral application to the court. SGL therefore raised this application.

[5] Mr Richardson submitted that the structure of the 2010 Act and the relevant rule of court supported the view that the pre‑Act practice of obtaining the arbiter's approval of a specification of documents before seeking the authority of the court should remain the norm.

[6] I consider that Mr Richardson is correct in his submission for four reasons. First, the third of the founding principles in section 1 of the 2010 Act is that the court should not intervene in an arbitration except as provided by the Act. Secondly, rule 28 of the Scottish Arbitration Rules, which is a default rule that the parties applied to their arbitration, provides that:

"(1) It is for the tribunal to determine - ...

(b) the admissibility, relevance, materiality and weight of any evidence.

....

(2) (c) whether any documents or other evidence should be disclosed by or to any party and, if so, when such disclosures are to be made and to whom copies of disclosed documents and information are to be given."

(my emphasis)

[7] Thirdly, while rule 45 of the Scottish Arbitration Rules gives the court a discretion whether to grant or refuse the request for disclosure, rule 100.6 of the Rules of the Court of Session provides:

"In relation to a petition or note lodged under rule 45 of the Scottish Arbitration Rules (court's power to order attendance of witnesses and disclosure of evidence), intimation and service of the petition or note is not required."

This creates an exception from the general requirement for intimation and service under rule 100.5. The assumption must be that the application for a court order under rule 45 is not controversial between the parties because the arbitrator has already considered the substance of the request for disclosure.

[8] Under section 9(2) of the 2010 Act parties are free to modify or disapply default rules in the Scottish Arbitration Rules. Parties may replace rule 28 with their own arrangements to give the arbitrator control over procedure and evidence. It is thus possible that a party might have to invoke rule 45 without having obtained the arbitrator's view on the appropriateness of the proposed disclosure. In those circumstances the court might have to disapply Rule of Court 100.6. But I would expect the norm to be that the parties first obtain the arbitrator's approval of the specification of documents before applying to the court under rule 45 of the Scottish Arbitration Rules. That norm clearly applies when the parties have accepted rule 28.

[9] Fourthly, I consider that that norm is a practical arrangement as in most circumstances the arbitrator through his or her knowledge of the details of the parties' claims is in a better position than the court promptly to form a view on the admissibility and relevance of the proposed disclosures.

[10] I therefore continue this motion to a date to be fixed in order to allow SGL to renew its application to the arbitrator for approval of the specification of documents before returning to this court.