Claims in Scotland require documents to be requested

The procedure for the recovery of documents for litigation in Scotland is very different to other jurisdictions as there is no automatic entitlement to the relevant information.

Duty of Disclosure

There is no general duty of disclosure before litigation in Scotland. If you ask for material and it is refused then it is possible to apply to the Court to get an Order for what you believe you need. A simple rule of thumb is that you have to ask for documentation, there is no automatic discovery in Scotland.  

Before a court action is raised, consider

• If information is held by a Public Authority as requests can be made under the terms of the Freedom of Information (Scotland) Act 2002. In this process there is also a right of appeal to the Scottish Information Commissioner; and/or
• if it is possible to make a Subject Access Request under the Data Protection legislation as this can enable the recovery information such as medical records, employment information and  police records, etc. 

If all the other options have been exhausted and you still cannot get the papers you need, then you can apply to Court.

Special applications before court proceedings are raised

Applications can be made under the Administration of Justice (Scotland) Act 1972 (“the Act”).

Under section 1 of the Act applications can be made against the person or agency which has the papers/information that is being sought. Certain information is needed in the application including an indication that once the information has been obtained you will be proceeding with a court action.

What if you need the papers urgently and there is a risk they will be destroyed or concealed if you ask for them by consent

Where there is a real risk that someone may destroy or conceal material or evidence it is possible to seek what is known as a ‘dawn raid’. This involves seeking an ex parte Order under the Act. If the court is persuaded of the need for such an order this will be granted without the holder of the material having an opportunity to argue against it in court. The process is detailed and expenses for it involve the appointment of an officer of the court who will oversee the recovery action in a manner which is compliant with Human Rights. The process is very effective in securing evidence that is easily hidden or destroyed, for example a computer hard drive. 

Inspections and photographing requests

Sometimes it is necessary to inspect or photograph an item or object to know whether you can proceed with your case. Orders for the inspection and photographing can be obtained. Again, if you are concerned that asking for the inspection/photographing consent may lead to the destruction or concealment of the object in question, you can again apply for an ex parte Order under Section 1. This is done again by Summons or Initial Writ.

Disclosure of witnesses

It may be necessary to speak to witnesses in order to know if you can proceed with your case. The terms of Section 1A of the Act allow you to apply for an Order obliging disclosure of the witnesses name(s) and contact details.

Procedure once a court action has commenced

It may be that you only find out you need papers, etc. after a Court action has begun. Generally speaking it is easier in the context of an already existing Court action to recover papers and inspect and photograph locations orobjects, etc. The applications can be made within the context of the court action by way of motion. 

What happens if I get a Court Order and the papers are still not released? 

Once an order has been granted the person who is responsible for disclosing the material (the ‘haver’) is given a timeframe in which to comply. If they fail to do that then the matter can proceed to a Commission. This is effectively a hearing before a court appointed commissioner (an independent advocate or solicitor) where either the papers are produced; or a recorded explanation is given as to why the papers are not available and what enquiries were made to trace the papers.

Remember, in the Scottish system you are not automatically entitled to recovery material, you must ask.