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MINUTE FOR DUFF & PHELPS LTD IN THE ACTION AT THE INSTANCE OF DAVID JOHN WHITEHOUSE [2022] ScotCS CSOH_16 (11 February 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_16.html
Cite as:
[2022] CSOH 16,
2022 SLT 450,
2022 GWD 5-74,
2022 SCLR 91,
[2022] ScotCS CSOH_16
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 16
CA9/20
OPINION OF LORD TYRE
In Minute for
DUFF & PHELPS LIMITED
Minuter
In the action at the instance of
DAVID JOHN WHITEHOUSE
Pursuer and First Respondent
against
CHIEF CONSTABLE, POLICE SCOTLAND
First Defender and Second Respondent
and
THE LORD ADVOCATE
Third Defender and Third Respondent
Minuter: Dean of Faculty, McKinlay; A & WM Urquhart
Pursuer and First Respondent: No appearance
First Defender and Second Respondent: No appearance
Third Defender and Third Respondent: Moynihan QC, Hamilton; Scottish Government Legal
Directorate
11 February 2022
Introduction
[1]
The pursuer raised an action for damages against the Chief Constable and the
Lord Advocate for unlawful detention and arrest and malicious prosecution. Proof before
2
answer was allowed and a proof was due to commence in January 2021. Before the action
came to proof, the Lord Advocate admitted that from a particular stage of the proceedings
there was a malicious prosecution in the technical sense of that term in the law of delict, and
accordingly that the Lord Advocate was liable to make reparation to the pursuer. Both
defenders settled the claims by the pursuer against them, and the action is effectively at an
end.
[2]
The minuter is and has at all material times been the employer of the pursuer and of
Mr Paul Clark whose parallel claim for malicious prosecution was also admitted and settled.
Following upon the admissions in those cases, the minuter has raised proceedings in this
court for damages against the Lord Advocate on grounds of misfeasance in public office, or
abuse of power in the exercise of a public office or function. The Lord Advocate has lodged
defences in which, inter alia, it is denied that the prosecutions were at all times conducted
maliciously.
[3]
The minuter has lodged a Minute craving the court to authorise the provision of
copies of the following documents from the present action to the minuter, on the condition
that it may use and disclose the material so provided solely in the context of its existing
proceedings against the Lord Advocate:
a.
All witness statements or affidavits lodged by the defenders (the Chief
Constable and the Lord Advocate);
b.
All inventories of productions (including copies of the productions
themselves) lodged by the defenders;
c.
All commissioners' reports produced in relation to the recovery of material
held by or on behalf of the defenders, the recoveries and inventories thereof referred
to therein, and transcripts of evidence given; and
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d.
All documents produced by the defenders to the pursuer on a voluntary
basis, whether under optional procedure or otherwise.
The Minute is opposed by the Lord Advocate.
[4]
The minuter's claim is based upon the same factual grounds as those founded upon
by the pursuer in his action. The minuter has instructed the same legal representatives as
the pursuer. The documents of whose provision the minuter seeks authorisation are in the
hands of those legal representatives.
The law
[5]
The relevant law is as stated by Lord President Rodger in Iomega Corporation v Myrica
(UK) Ltd 1998 SC 636. In Whitehouse v Chief Constable & Anor [2021] CSOH 33, I summarised
it as follows:
1.
A party who, as a result of commission and diligence, obtains possession of
documents or other items is subject to an implied obligation or undertaking to the
court not to use them nor to allow them to be used for any purpose other than the
conduct of the actual or prospective proceedings in respect of which they have been
recovered.
2.
The Court of Session has power to permit items recovered for particular
proceedings in this court to be used for other proceedings, where that would be in
the interests of justice.
3.
Since it is the court which has the power to give the necessary permission and
the party can do nothing without that permission, the court can attach any
conditions which it thinks fit to any permission that it grants. The attaching of
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appropriate conditions gives rise to no issue of competency, and the framing of such
conditions is a matter for the exercise of the court's discretion.
4.
In deciding whether to grant permission and, if so, on what conditions, the
court is exercising a discretion and the guiding principle in the exercise of that
discretion will be the interests of justice in the circumstances of the particular case.
[6]
The implied undertaking not to use documents for other proceedings, and the court's
discretion to permit their use, applies to documents produced voluntarily in the same way
as they do to documents recovered by commission and diligence. It applies not only to the
documents themselves but also to the information that they contain (cf Cobra Golf Inc v Rata
[1996] FSR 819, Laddie J at page 830).
[7]
Lord President Rodger observed in Iomega at page 646 that English case law
provided useful illustrations of factors for the court to take into consideration when
exercising its discretion. In England and Wales the rule known as the collateral purpose rule
has now been codified in a rule of court (CPR rule 31.22). In Tchenguiz v Director of Serious
to the rule (paragraph 66):
"(i)
The collateral purpose rule now contained in CPR 31.22 exists for sound and
long established policy reasons. The court will only grant permission under
rule 31.22(1)(b) if there are special circumstances which constitute a cogent reason for
permitting collateral use.
...
(iii)
There is a strong public interest in facilitating the just resolution of civil
litigation. Whether that public interest warrants releasing a party from the collateral
purpose rule depends upon the particular circumstances of the case...
(iv)
There is a strong public interest in preserving the integrity of criminal
investigations and protecting those who provide information to prosecuting
authorities from any wider dissemination of that information, other than in the
resultant prosecution."
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[8]
These observations appear to me to be consistent with the decision in Iomega.
However, as regards information disclosed in criminal proceedings by a prosecutor to an
accused, section 162 of the Criminal Justice and Licensing (Scotland) Act 2010 restricts use or
disclosure of such information to the proper preparation and presentation of the accused's
case in the proceedings in relation to which the information was disclosed, and any appeal
in relation to those proceedings. Section 163 makes it an offence to contravene section 162.
Argument for the Lord Advocate
[9]
On behalf of the Lord Advocate it was submitted that it would be contrary to
principle to grant an order permitting blanket use by the minuter of documents lodged for
the purposes of the pursuer's action. No cogent and persuasive reason had been advanced
to use all of the documents. Merely to assert that documents had some relevance to the
resolution of civil litigation was inadequate. The applicant still had to demonstrate cogent
reason for disclosure. That was particularly so if the documents related to a criminal
investigation, given the public interest in protecting the integrity of criminal investigations.
[10]
The minuter had refused to identify particular documents of interest. It had
p
roduced a list of 18 proposed averments that were said to justify access to documents.
There was no justification for recovery of documents bearing on seven instances where the
minuter stated that full averments had already been made, and there was no definitive
identification of eight instances where it was said that access to documents would enable
fuller pleading. Reference was made to the observations of Lord Cameron in Moore v Greater
Glasgow Health Board 1978 SC 123 at page 131 regarding recovery of documents prior to the
allowance of proof. The list took no account of admissions made by the Lord Advocate in
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the minuter's action which cut down the range of documentary evidence required. In
relation to some items the minuter would have documentation of its own.
[11]
The proper course of action was for the minuter to produce a list of the documents
that it wished to use, with an explanation of why. Although it was accepted that even
producing such a list would, technically, be a breach of the implied undertaking by the
pursuer and his legal representatives, the Lord Advocate gave permission for the minuter to
identify the documents it wished to use in its action. The list could be put to the
Lord Advocate and insofar as the Lord Advocate granted permission for use, there would be
no need for the court to make any ruling. The Lord Advocate further gave permission to the
minuter to place the list and the documents referred to in it before the court, in order to
enable the court to rule on the request for permission to use any documents that the
Lord Advocate did not consent to release.
Argument for the minuter
[12]
On behalf of the minuter, it was submitted that the interests of justice lay in favour of
granting the minute. The same considerations applied to the present application as had
applied to the pursuer's application in Whitehouse v Chief Constable & Anor (above).
Requiring the minuter to provide a list, when there was already a bundle of documents in
the hands of the same solicitors, and known to the same counsel, would be unduly onerous
and expensive. There would moreover be a risk, if permission were restricted to certain
documents, that counsel would inadvertently plead a case based on wider knowledge of the
background. Permission was sought only to use and disclose the material in the context of
the minuter's existing proceedings against the Lord Advocate. The reality was that the only
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people who would see the documents were the legal advisers who had already seen them.
The restriction on use meant that any wider dissemination would be a contempt of court.
[13]
The task of compiling a list of the documents required would itself constitute a
contempt of court. The ability to use documents did not depend on the permission of the
Lord Advocate, but rather on the permission of the court to whom the implied undertaking
was given. The purported permission did not lie in the gift of any litigant, even the
Lord Advocate. That was particularly so when many of the documents in question had
come not from the Lord Advocate but from other havers (who were not resisting the
Minute).
[14]
Commercial court procedure adopted a "cards on the table" approach. That was
appropriate here. Permission limited to certain documents referable to what was needed to
make pleadings relevant would not address the situation in advance of proof. The
Lord Advocate's suggested approach would create difficulties in the event of witness
statements suggesting testimony known to be contrary to documents not covered by the
permission. In so far as the Lord Advocate relied upon preservation of the integrity of
criminal proceedings, there was a reduced public interest in preserving the "integrity" of
proceedings that were admittedly wrongful, at least in part. The admissions of liability that
had been made were limited; the minuter claimed that the prosecution was wrongful from
the outset, and would have to aver and prove why, and in whose mind the (admitted)
malice rested.
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Decision
[15]
I am satisfied that in the circumstances of the case it is in the interests of justice to
grant the Minute. The circumstances are unusual: permission is being sought to use
documents in proceedings
in the same court,
arising out of the same facts and based on a broadly similar legal foundation
as the proceedings in which the documents were lodged,
in which the respective parties are closely connected,
in which the same legal representatives both solicitors and counsel are
instructed, and
where the documents are already in the possession of those legal
representatives.
That being so, many of the concerns discussed in other cases, such as understanding the use
to which the documents may be put in proceedings in a foreign jurisdiction and assessment
of their importance in those proceedings (as in, for example, Tchenguiz above), do not arise.
It is, in effect, the minuter's intention to use the documents for the purposes for which they
were lodged in the pursuer's case, albeit that they were not ultimately required for a proof in
that case because it was resolved by settlement.
[16]
I reject the Lord Advocate's submission that there is a principle that requires a
selective approach to be adopted. In my view there is no underlying principle beyond
application of the interests of justice. The process of recovery of documents in the pursuer's
action was long, tortuous and expensive. In my judgment there is a strong likelihood that if
the present application were dealt with by a staged approach, the result would be a
repetition of that process, with disputes developing as to whether the minuter's explanation
9
for requiring each particular document was or was not accepted by the Lord Advocate. If
the reference made during the hearing to Moore v Greater Glasgow Health Board is to be
interpreted as an indication that a restrictive attitude would be adopted by the
Lord Advocate, I fear that the disputes would be numerous and that the provision of the
minuter's list would only be the beginning of another long and expensive procedure. That is
not in the interests of justice.
[17]
Nor, in my opinion, did the Lord Advocate provide a satisfactory answer to the
minuter's submission that even providing a list would constitute a "use" of the documents
and therefore a breach of the implied undertaking and a contempt of court. As the Dean of
Faculty pointed out, it is not for the Lord Advocate to grant permission for a breach of an
undertaking given to the court, whether in relation to documents that he/she has lodged or
in relation to documents lodged by third parties. Moreover, as senior counsel for the
Lord Advocate accepted, it would in practical terms be impossible now to make a separation
between documents lodged by the Lord Advocate and documents lodged by others; in
many instances the same document will have been lodged by more than one party. I have
sympathy with the concern expressed by the Dean of Faculty that with the best of intentions
it would be very difficult for the minuter's legal representatives, when preparing for a proof,
to be confident that they were employing knowledge obtained from "listed" documents and
not unwittingly making use of knowledge gained from other documents in respect of which
no authorisation had been granted.
[18]
At a practical level, it seems to me that granting the authorisation sought is likely to
have benefits if a proof is required in the minuter's action. If all parties are aware from an
early stage of the full extent of available documentation, I would express the hope that this
would facilitate a coherent, co-ordinated and (I wish to emphasise) selective approach to the
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lodging of documentary productions, with proper identification of a core bundle of
documents and avoidance of multiple duplication.
[19]
One qualification does, however, require to be made to the authorisation being
granted. I have mentioned the restriction in section 162 of the Criminal Justice and
Licensing (Scotland) Act 2010 on use of information disclosed in criminal proceedings by a
prosecutor to an accused. In Whitehouse v Chief Constable & Anor (2021), I received an
assurance, recorded at paragraph 7 of my opinion, that authorisation was not sought in
relation to documents (including certain expert reports) disclosed by the Crown for the
purposes of the criminal proceedings against the pursuer which had not been recovered in
the civil proceedings by application for commission and diligence. Authorisation of the
provision of documents to the minuter will require to be subject to an equivalent exclusion.
[20]
Subject to that qualification, the minuter's motion is granted. I propose in the first
instance to invite parties to agree the terms of the section 162 exclusion, whereupon I shall
pronounce an interlocutor. If agreement on this cannot be reached, a further hearing will be
fixed.
