Recovery of Evidence Flashcards
Why is recovery of evidence important?
The ability to recover material which supports your case is very important and you have limited resources to obtain information so you may have to get an order from the court to recover material.
Recovery by way of commission and diligence: this is a procedure available once an action has been raised.
Chapter 28 OCR deals with recovery of evidence.
Rule 28.2(1) – provides that an application for commission and diligence is made by way of a motion by completing a Forms G6 (intimates motion), G7 (Certifies to court that intimation has been carried out) & G8
Rule 28.1(2) - must specify what you want to recover
Recovery examples:
GP Records
You should ask for:
All books, medical records, reports, charts, X-rays, notes and other documents of (name and address of GP) and relating to the pursuer from (date), “in order that excerpts may be taken therefrom at the sight of the Commissioner of all entries showing or tending to show the nature, extent and cause of the pursuer’s injuries when he attended his doctor on or after (date) and the treatment received by him since that date.
- Hospital Records
All books, medical records, reports, charts, X-rays, notes and other documents of (name and address of hospital) and relating to the pursuer from (date), in order that excerpts may be taken therefrom at the sight of the Commissioner of all entries showing or tending to show the nature, extent and cause of the pursuer’s injuries when he was admitted to that institution on or about (date), the treatment received by him since that date and his certificate of discharge, if any - Occupational health records
The medical records and capability assessments held by the defender’s occupational health department relating to the pursuer, “except insofar as prepared for or in contemplation of litigation, in order that excerpts may be taken therefrom at the sight of the Commissioner of all entries showing or tending to show the nature and extent of any injuries, symptoms and conditions from which the pursuer was suffering and the nature of any assessment and diagnosis made thereof on or subsequent to (date)” - Wage slips
All wage books, cash books, wage sheets, computer records and other earnings information relating to the pursuer (N.I. number (number)) held by or on behalf of (name and address of employer), for the period (dates) in order that excerpts may be taken therefrom at the sight of the Commissioner of all entries showing or tending to show:
- the pursuer’s earnings, both gross and net of income tax and employee National Insurance Contributions, over the said period;
- the period or periods of the pursuer’s absence from employment over the said period and the reason for absence;
- details of any increases in the rate paid over the period (dates) and the dates on which any such increases took effect;
- the effective date of, the reasons for and the terms (including any terms relative to any pension entitlement) of the termination of the pursuer’s employment;
- the nature and extent of contributions (if any) to any occupational pension scheme made by the pursuer and his employer;
- the pursuer’s present entitlement (if any) to any occupational pension and the manner in which said entitlement is calculated. - Accident reports
All accident reports, memoranda or other written communications made to the defender or anyone on his behalf by an employee of the defender who was present at or about the time at which the pursuer sustained the injuries in respect of which the initial writ in this cause was issued and relevant to the matters contained in the statement of claim - Risk Assessments
Any assessment current at the time of the accident referred to in the initial writ or at the time of the circumstances referred to in the initial writ giving rise to the cause of action (as the case may be) undertaken by or on behalf of the defender for the purpose of regulation 3 of the Management of Health and Safety at Work Regulations 1992 and subsequently regulation 3 of the Management of Health and Safety at Work Regulations 1999 [or (regulations or other legislative provision under which the risk assessment is required)] in order that excerpts may be taken therefrom at the sight of the Commissioner of all entries relating to the risks posed to workers [or (matters set out in the statement of claim to which the risk assessment relates)]
What is the specification of documents?
At the end of your specification always include a Fall back paragraph - failing principals, drafts, copies or duplicates of the above or any of them.
Examples above are taken from Form PI2 for PI cases.
Must be precise and relevant - a fishing exercise will not be allowed. The docs must be relevant to the facts averred in the pleadings.
Legal professional privilege - recover of documents can be refused if they are the subject of privilege or
There is a Public interest immunity
What is the optional procedure?
If the motion is granted by the sheriff the next step is to recover the documents.
This is done by way of the optional procedure set out in Rule 28.3 OCR which provides that the party who has obtained the commission of diligence on the recovery of documents on the application made rule 28.2 IA may at any time before executing it against the haver serve on the have a Form G11
The blank forms are at the back of the sheriff court rules and there are also blank versions on the sheriff court website.
What does a Form G11 do?
A complete form is then served on the haver and must be complied by the haver in the manner specified in the form.
In the form:
The Haver has seven days to produce to the sheriff clerk:
1. the order (Form G11)
2. signed and completed certificate attached to the Form G11
3. documents in their possession
4. inventory
If confidentiality is claimed they have to produce documents but placed in sealed packet by Haver and marked confidential.
Limits to outlays payable - e.g. GP practices can charge a small fee.
Certificate that has to be signed will confirm whether:
haver has produced all of the documents falling within the specification
Or there are other documents not in the haver’s possession and what and where they are/last seen etc.
Or there are no such documents which can be the case if the records are quite old.
This can make it difficult to prove that someone worked there and can come up in asbestos cases with long latency periods.
What is the uplifting and lodging of documents?
Assuming some documents are sent back by the haver to the sheriff clerk.
The sheriff clerk will intimate this to each party.
Then the party who served the order has seven days to uplift
If fail to do so, the sheriff clerk will intimate this to any other party who can uplift in seven days
Returned to haver after 14 days if no one uplifted
If you uplift then decide not to lodge in process you must Return to sheriff clerk who will intimate the return of the document to every other party and they will then be returned to the Haver if not lodging if no other party uplifts within 14 days from the date of intimation.
What is commission and diligence?
If the party who served the order is not satisfied that full compliance has been made with the order then he may execute a commission and diligence under Rule 28.4 OCR
Commission is what you do if you do not follow optional procedure but it is much more cumbersome and expensive
A commission under rule 28.4 requires that the party who seeks to execute the commission and diligence should provide Commissioner with copy of :
- specification
- pleadings inc. any adjustments and amendments
- certified copy of the interlocutor and appointment
And Instruct clerk and shorthand writer as required by the commissioner or any other party
They are also responsible for fees of commissioner, clerk and shorthand writer
What is commission?
There after the commission shall in consultation with the other parties Fix a diet for the execution of the commission
Haver served with:
citation Form G13
copy of the specification
copy of the pleadings inc any adjustments and amendments
The party who is citing the haver will also have to Lodge citation in Form G12
The parties in the Haver and Entitled to representation at the execution of the commission
At the commission the commissioner will administer oaths to the clerk and to the Haver.
Oaths / affirmations administered
Report of execution and commission of diligence and any documents recover are sent by commissioner to sheriff clerk
Same procedure for uplifting and lodging
So a commision & diligence is more hassle but can be necessary in some cases.
How do you recover original documents from public records?
Rule 28.9 OCR covers a warrant for production for original documents.
There are occasions where Original documents from public records are necessary e.g. A coloured plan.
You ask the court for the warrant for the production of the original document under this rule.
Apply by motion
What are Banker’s books?
Bankers’ Books Evidence Act 1879 section 7 is of historical interest only.
Section 7 enables:
On the application of any party to a legal proceeding a sheriff may order that such a party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes of such proceedings
Notice to bank and other parties usually given
This is not used much these days
How did the Administration of Justice Act 1972 change things?
More common situation where you want to recover evidence before an action has been raised.
This act says there is no need to raise an action before you make a request for information
So you can get information before you start your action which allows you to go against the right person, etc.
It was a major defect before this Act which meant that you could not obtain information before raising an action.
1972 Act gives Court has power to order inspection, photographing, preservation, custody and detention of documents and other property including land which appear to be property as to which any question may arise in any existing or proceedings likely to be brought, etc.
It is much wider than the case prior to the 1972 Act when all the court could do was order recovery of documents and inspection of property to some extent.
Now we can take samples and carry out experiments.
It is still subject to non-disclosure on grounds of public interest or confidentiality
What is the procedure of recovery if there is no existing action?
Chapter 3 Summary Applications Rules 1999 - there is a different procedure to be followed where there is no existing action.
In the sheriff court an application is made by way of Chapter 3 above.
Summary Application, affidavit and undertaking - you have to lodge these giving certain information about what you are going to do with the document or item seeking to recover and undertake that you will comply with certain conditions to preserve it e.g. To only use for the purposes of the litigation.
There also has to be Intimation and there are provisions in relation to the intimation of the Haver.
The Haver does not have to be the person you are going to sue, simply the person whose hands the documents are in..
Right of haver to consult with lawyer before search - due to HR legislation.
The most common circumstance where this is used is where someone is employed with organisation and they leave information on computer owned by employer. The company may seek to recover this material before it si lost or hidden or used.
An intellectual property situation, employment disputes, breahc of restrictive covenants, searches are known as dawn raids, they are done first thing int he morning and the material is recovered once an order has been pronounced.
How can you recover under Freedom of Information Act?
In addition to ch 28 and 1972 Act you can make use of Freedom of Information (Scotland) Act 2002 to recover evidence.
No need to justify request instead they have to give you a justification for refusing the information.
Public interest exemptions - if you can justify the exemption then the matter can be determined by the scottish information commissioner
Appeal available of scottish information commissioner (quite unlikely).
