EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Menzies Sir David Edward Q.C.	[2009] CSIH NO.67 XA83/08 OPINION OF THE COURT delivered by SIR DAVID EDWARD Q.C. in Appeal from the Sheriffdom of Tayside, Central and Fife at Dunfermline in the cause MRS SHIRLEY ANNE MANNING Pursuer and Appellant; against MRS MARGARET DOWNIE MANNING Defender and Respondent: _______

Act: Howie, Q.C.; MacRoberts LLP

Alt: Logan; Balfour + Manson LLP

22 July 2009

Introduction
[1] The late David John Manning ("the deceased") died testate in 2003. His widow, Mrs Margaret Manning, was confirmed as sole executrix. She is the defender and respondent in the present proceedings (hereafter "the respondent"). The deceased's daughter, Mrs Shirley Manning, lives in New Zealand. She is the pursuer and appellant in these proceedings (hereafter "the appellant").

[2] The appellant intimated that she wished to exercise her legal rights in respect of the deceased's moveable estate and was told by solicitors acting for the respondent that she was entitled to slightly less than £25,000. For a number of reasons the appellant was dissatisfied with this valuation of her rights, and in 2006 a Summary Application under Section 1(1) of the Administration of Justice (Scotland) Act 1972 (hereafter "the 1972 Act") was lodged on her behalf in the Sheriff Court at Dunfermline. According to the instance, the respondent was cited in her personal capacity only, although it is averred that she is executrix.

[3] The craves in support of the Application are as follows:

"The Pursuer respectfully craves the Court:

1. To grant an order for commission and diligence under Section 1 of the Administration of Justice (Scotland) Act 1972 for recovery from the Defender of all documentation in the hands of the Defender or anyone on her behalf relating to:

(a) the partnership company accounts of [three named partnerships or companies] covering the period to date of death of the late David John Manning ...;

(b) the sums outstanding at the date of the late David John Manning's death in [several numbered bank accounts] all in name of the said David John Manning;

(c) the bank statements covering the last complete year prior to the date of death and (sic) [several numbered bank accounts] all in the name of the said David John Manning;

(d) failing principals, all drafts, copies, duplicates or any computer software and hardware in which is stored a copy of the above property:

and to appoint such a person or persons as the Court shall deem proper to be Commissioner or commissioners.

2. To find the Defender liable in the expenses of the action.

3. To make any such other (sic) orders as shall seem proper to the Court.

By interlocutor dated 10 March 2008, the Sheriff dismissed the "action" (sic) as being "neither competent nor relevant" on the ground that the requirements of Rules 3.1.2 and 3.1.3 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (hereafter "the 1999 Rules") had not been complied with. By a further interlocutor dated 23 May 2008, the Sheriff found the appellant liable to the respondent in the expenses of the cause on the solicitor and client scale.

[4] The appeal is taken against both interlocutors, and the point at issue is a very narrow one. It is not disputed that the application did not meet the requirements of Rules 3.1.2 and 3.1.3. But the appellant contends that those rules did not apply, the only relevant provision being the general provision of Section 50 of the Sheriff Courts (Scotland) Act 1907 relating to summary applications. Consequently the application (or "action") should not have been dismissed as incompetent, and expenses should not have been awarded against the appellant. It is, however, conceded that, if the application was correctly dismissed as incompetent, then there are no grounds for recalling the interlocutor on expenses.

[5] We shall deal first with the genesis of the 1972 Act and the rules made thereunder, since the issue of competency raises a fundamental question as to the inherent powers of the Scottish courts. Much of the background is to be found in an article by Mr I.D. Macphail (now Lord Macphail), The Administration of Justice (Scotland) Bill, 1972 S.L.T. (News) 73, and his annotations to the 1972 Act in Scottish Current Law Statutes 1972; and an article by Ms Ruth Charteris, Sun sets on Dawn Raids, 2000 S.L.T. (News) 271.

The Administration of Justice (Scotland) Act 1972 and the Rules made thereunder
[6] Prior to 1972, commission and diligence for recovery of documents could be obtained in the Court of Session only where an action was already in dependence - Mackay The Practice of the Court of Session, Vol. I, pp. 468-69; Maclaren Court of Session Practice, pp. 1071-72. Mackay observes that "There is in Scotch practice nothing similar to the suit which may be raised in England merely for the perpetuation of testimony". The general rule of practice was that commission and diligence would not be granted until the record had been closed, issues of relevancy disposed of, and proof allowed - Mackay loc. cit. and Maclaren loc.cit. The same rule of practice applied in the Sheriff Court - Dobie, Sheriff Court Practice, pp. 154 and 194. In Boyle and Another v Glasgow Royal Infirmary and Associated Hospitals 1969 S.C. 72, a husband and wife were suing a hospital board in respect of the death of their infant daughter, and they sought, before the record was closed, to recover the relevant hospital records. The Inner House held that, in the absence of "special" (or "highly special" or "exceptional") circumstances, no order for recovery of documents could be sought at the open record stage.

[7] The principle affirmed in Boyle was felt by many to be both inequitable and procedurally counter-productive. In the meanwhile, in England, the Report of the Winn Committee on Personal Injuries Litigation (1968, Cmnd. 3691) had recommended that the courts should have more extensive powers to order early disclosure of evidence (including documents) relevant to personal injuries, both before and after the raising of an action. This led to powers being conferred on the English courts by Section 21 of the Administration of Justice Act 1969 and, more extensively, by Section 31 et seq. of the Administration of Justice Act 1970.

[8] Section 1 of the 1972 Act conferred similar powers on the Scottish courts and reads, so far as relevant here, as follows:

"1 Extended powers of courts to order inspection of documents and other property, etc

(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.

(3) The powers conferred on the Court of Session by section 16 of the Administration of Justice (Scotland) Act 1933 to regulate its own procedure and the powers conferred on that Court by section 32 of the Sheriff Courts (Scotland) Act 1971 to regulate the procedure of the sheriff court 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, for the intimation of the application to such persons (if any) as the court thinks fit, and for the finding of caution where appropriate for any loss, damage or expenses which may be incurred as a result of the application.

(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; ..."

[9] The power of the Court of Session to regulate the procedure of the sheriff court conferred by section 1(3) was exercised by an Act of Sederunt which was replaced (but not altered) by the 1999 Rules. Chapter 3 ("Rules on Applications under Specific Statutes"), Part I ("Administration of Justice (Scotland) Act 1972") was very brief and read as follows:

"Interpretation and application
3.1.1. (1) In this Part, "the Act" means the Administration of Justice (Scotland) Act 1972.

(2) This Part applies to applications under section 1(1) of the Act.

Applications under section 1(1) of the Act

3.1.2. An application for an order under section 1(1) of the Act (orders for inspection of documents and other property, etc.) shall be made by summary application where the proceedings in respect of which the application is made have not been commenced."

[10] Although the principal motivation for the new statutory provisions in England and Scotland was originally to do with actions of damages for personal injuries, the English courts had in the meanwhile developed, on the basis of an inherent power, a form of order known as an "Anton Piller Order" (see Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). Such orders were used extensively in intellectual property cases and authorised the plaintiff to enter the defendant's premises and inspect and remove incriminating documents or other material ("dawn raids").

[11] In The British Phonographic Industry Ltd v Cohen, Cohen, Kelly, Cohen & Cohen Ltd. 1983 S.L.T. 137, the Inner House held that comparable orders could be made in Scotland under section 1 of the 1972 Act, and laid down the tests to be applied. In Iomega Corporation v Myrica (U.K) Ltd 1998 S.C. 636, Lord President Rodger summarised the purpose and effect of section 1 as follows (p.638 F-H):

"Section 1 has come to be associated in many practitioners' minds with the kind of 'dawn raids' which were authorised by this court in British Phonographic Industry Ltd ... on the model of the Anton Piller orders authorised by the Court of Appeal ... None the less sec 1, which antedated Anton Piller, was actually designed to remedy what were seen to be two problems in the pre-existing law: it was difficult for a party to obtain commission and diligence to recover documents before the closing of the record and a fortiori it was not possible for a party to obtain an order from the court to recover documents before proceedings were begun. Subsections (1) and (2)(a) of sec 1 dealt with the first of these problems, while subsecs (1) and (2)(b) dealt with the second. Orders under subsecs (1) and 2(b) can be obtained, of course, where there is none of the urgency which characterises the exceptional kind of situation where a dawn raid is permitted. It is worth noticing that the power to recover documents in an action before the record is closed is just as much a creature of sec 1 as is the power to recover the same documents before proceedings are begun."

[12] In Chappell v United Kingdom (1990) 12 EHRR 1, the European Court of Human Rights held that Anton Piller orders were compatible with Article 8 of the European Convention but stressed the importance of the safeguards that had been developed by the English Courts. Following the passing of the Human Rights Act 1998 it was felt that those safeguards should be given statutory force. This was done for the Court of Session by the Act of Sederunt (Rules of the Court of Session Amendment No 4) (Applications under s.1 of the Administration of Justice (Scotland) Act 1972) 2000, and for the Sheriff Court by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (No. 2) (Administration of Justice (Scotland) Act 1972) 2000. For practical purposes, the amendments to the rules of the Court of Session and the Sheriff Court were the same.

[13] The effect of the amendments made in 2000 to the 1999 Rules was, first, to add the expression "listed items" to the definitions in rule 3.1.1; to renumber rule 3.1.2 as 3.1.2(1); and thereafter to add a number of detailed rules and forms. As a result, rules 3.1.2 and 3.1.3 now read as follows:

"Applications under section 1(1) of the Act

3.1.2 (1) An application for an order under section 1(1) of the Act (orders for inspection of documents and other property, etc.) shall be made by summary application where the proceedings in respect of which the application is made have not been commenced.

(2) The summary application shall contain-

(a) the listed items [defined by rule 3.1.1(b) as "a list of the documents and other property which the applicant wishes to be made the subject of the order"];

(b) the address of the premises within which the applicant believes the listed items are to be found; and

(c) the facts which give rise to the applicant's belief that, were the order not to be granted, the listed items, or any of them, would cease to be available for the purposes of section 1 of the Act.

Accompanying documents

3.1.3 The applicant shall lodge with the summary application-

(a) an affidavit supporting the averments in the summary application; and

(b) an undertaking by the applicant that he-

(i) will comply with any order of the sheriff as to payment of compensation if it is subsequently discovered that the order, or the implementation of the order, has caused loss to the respondent or, where the haver is not the respondent, to the haver;

(ii) will bring within a reasonable time of the execution of the order any proceedings which he decides to bring; and

(iii) will not, without leave of the sheriff, use any information, documents or other property obtained as a result of the order, except for the purpose of any proceedings which he decides to bring and to which the order relates."

[14] Counsel for the appellant also relied upon rule 3.1.6, which reads:

"Form of order

3.1.6 An order made under this Part shall-

(a) be in Form 11A; and

(b) include in addition a warrant of citation in Form 2."

The appellant's submission

[15] The appellant contended that the detailed requirements of rules 3.1.2. and 3.1.3 had been introduced to deal with orders for dawn raids and were appropriate only to such cases. They were unnecessary and inappropriate in a straightforward case, such as the present, where all that was sought was an order for recovery of documents with a view to a future action - in this case, an action of count, reckoning and payment. The requirement of rule 3.1.2(c), in particular, was plainly inapplicable and, indeed, incapable of application in this case. Likewise, Form 11A, prescribed by rule 3.1.6(a) was inept as the form of order in a case such as the present, while a warrant for citation in Form 2, prescribed by rule 3.1.6(b), was otiose since citation had already occurred.

[16] Consequently, counsel argued, the court should hold that, in a case such as the present, it was not necessary to comply with the requirements of rules 3.1.2 and 3.1.3. The procedure appropriate to the case could be determined by the Sheriff on the basis of his general powers under section 50 of the 1907 Act. Since it was not necessary to comply with rules 3.1.2 and 3.1.3, the Sheriff was wrong in dismissing the present application as incompetent.

[17] Counsel drew our attention to the recent decision of the Sheriff Principal of Tayside, Central and Fife in Bridgefoot Building Contracts Ltd v James Michie and Others 2009 WL 1062984 (Sh Ct), 2009 G.W.D. 302. In that case the learned Sheriff Principal held that the provisions of rule 3.1.2(2)(c) apply only to those applications in which the court is invited to grant an order for commission and diligence in advance of service of the application (see paragraph 11 of his Note).

[18] We did not consider it necessary to call on counsel for the respondent.

Decision
[19] In our opinion, it is clear that, prior to 1972, the Scottish courts had no power to grant diligence for recovery of documents otherwise than in the context of an action already in dependence. (It is particularly significant that Mackay, one of the greatest of scholars, said that there was no equivalent in Scotland of the English suit "for the perpetuation of testimony"). The 1972 Act and the rules made thereunder were necessary to create the power to make an order for recovery before an action is raised, as well as the procedural context in which that power can be exercised. As the Lord President put it in Iomega (supra), the power is the creature of Section 1.

[20] That being so, Section 1 of the 1972 Act and Chapter 3, Part I, of the 1999 Rules are both the source and the measure of the powers of the Sheriff to make an order such as is sought by the appellant in these proceedings. The Sheriff is not at liberty to "disapply" the rules that were added by amendment in 2000.

[21] It is true that certain of the provisions of the additional rules are appropriate to a dawn raid application and have no function in proceedings such as the present. It is curious, also, that rule 3.1.2(2) does not require the application to identify the person in whose hands the documents or other property are alleged to be, although the form of order to be made by the Sheriff (Form 11A) must specify "the name and address of party or parties or third party haver, from whom the documents and other property are sought to be recovered". The drafting of the rules may merit further consideration in the future.

[22] However, the fact that some parts of the rules may have no function to play in certain circumstances does not mean that they thereby become inapplicable in their entirety. In our opinion, the problem created by the requirements of rule 3.1.2(2)(b) and (c) can be overcome by reading the opening words of rule 3.1.2(2) as meaning, "The summary application shall contain, as appropriate ..." or "as the circumstances require ...". More importantly, while the requirement for supporting affidavits and undertakings prescribed by rule 3.1.3 are new, the human rights concerns that led to its inclusion could be equally as potent in an application such as the present as in an application for a dawn raid. There is no reason whatever why this requirement should be dispensed with. We note that the pleadings in the Bridgefoot case (supra) were supported by a detailed and lengthy affidavit from the principal director of the petitioners (see the Sheriff Principal's Note at the end of paragraph 13).

[23] Since it is conceded that the requirements of rules 3.1.2 and 3.1.3 were not complied with at any time between the lodging of the application and the Sheriff's Interlocutor of 10 March 2008, it follows that the Sheriff was correct in holding that the application was incompetent. That is sufficient to dispose of the appeal. We shall therefore adhere to the Interlocutors of the Sheriff dated 10 March and 23 May 2008 and refuse the appeal.