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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Narden Services Ltd v Inverness Retail & Business Park Ltd & Ors [2008] ScotCS CSIH_14 (12 February 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_14.html Cite as: [2008] ScotCS CSIH_14, [2008] CSIH 14 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord JohnstonLord ReedLord Abernethy |
[2008] CSIH 14P961/03 OPINION OF THE COURT delivered by LORD JOHNSTON in RECLAIMING MOTION on PETITION and ANSWERS in the cause NARDEN SERVICES LIMITED Petitioners and
Respondents; against Respondents and Reclaimers: for an Order for Rectification _______ |
Parties participating at this hearing:
First, Second & Fifth Respondents & Reclaimers: Dewar, Q.C., MacColl; Russel & Aitken
Third & Fourth Respondents:
Scott, Q.C., Robertson; Brodies
Non-participating Party: Petitioners:
[4] Against that
background the relevant part of the Lord Ordinary's Opinion is as follows:
[19] It
is in relation to the documents from Paull & Williamsons that the problem
arises. The interlocutor of
[7] The primary
contention on behalf of the appellants was that the open-ended interlocutor,
merely continuing the motions, issued by the Lord Ordinary did not adequately
safeguard the rights of the appellants in respect of legal professional
privilege (LPP) which undoubtedly accrued to them in principle and, according
to them, applied specifically in this case to both sets of documents. They therefore proposed means of safeguarding
their interests in one of two ways.
Their primary contention was that this court should order that the issues
of confidentiality and privilege should be dealt with ex parte by a Commissioner to whom the matter should be remitted by
the Lord Ordinary for that purpose and, in particular, a ruling on the question
in relation to each and all of the documents.
It was contended that the respondents should not be represented at such
a hearing either in respect of the EY documents or in respect of the PW
documents notwithstanding that they had in fact seen the latter documents. If the court in relation to EY was not
inclined to allow an ex parte hearing
it was submitted that the matter should still be remitted to a Commissioner by
the Lord Ordinary, but in addition a special advocate should be appointed to
represent the interests of the respondents.
The special advocate could take instructions from the respondents in
respect of the general approach that should be taken, but should not disclose
either the content of the documents if such arose or, more specifically, the
reasons being asserted by the appellants for not disclosing the documents on
grounds of LPP, it being alleged that explanations going beyond the actual
terms of the documents, but again confidential to the appellants' position,
might have to be revealed. For such
information beyond the contents of the documents to be disclosed to the
respondents might, it was submitted, prejudice the position of the appellants
overall in this action, but more importantly in other actions, of which there
are a number, relating to the complicated dispute. The notion of a special advocate is to be
found focussed in R. v H. [2004] 2 AC 134.
[11] They can be
summarised as follows:
1. The notion of
LPP as we have indicated is enshrined in the common law of
2. The
principles of natural justice, and in particular the right to be heard, are
equally firmly established: see for example the case of Barrs v British Wool Marketing Board 1957 SC 72.
3. Scots law has
exhibited many examples of a judge either personally or
through a Commissioner, or both,
determining issues of LPP in relation to documents without reference to third
parties, or to the parties themselves, until the matter was resolved. (See particularly McCowan v Wright (1852) 15D
229 and Santa Fe International
Corporation v Napier Shipping SA
1985 SLT 485).
4. Issues were
canvassed before us as to the inter-reaction between Article 6 and
Article 8 of the European Convention
on Human Rights, and particularly as to the questions which Article should
defer to the other in the event of a conflict between them. We are however satisfied that Scots law
affords sufficient protection to legal professional privilege to meet the
requirements of Article 8, and that the relevant procedure under Scots law is
equally compliant with Article 6. In
such a situation, we respectfully agree with the observations of Lord Cooke of
Thorndon in R (Daly) v Secretary of State for the Home Department
[2001] 2 AC 532 at para 30:
"while this case has arisen in a
jurisdiction where the European Convention for the Protection of Human Rights
and Fundamental Freedoms applies, and while the case is one in which the
Convention and the common law produce the same result, it is of great
importance, in my opinion, that the common law by itself is being recognised as
a sufficient source of the fundamental right to confidential communication with
a legal adviser for the purpose of obtaining legal advice ... The truth is, I
think, that some rights are inherent and fundamental to democratic civilised
society. Conventions, constitutions,
bills or rights and the like respond by recognising rather than creating them."
Accordingly, although we were
referred to a number of cases in the European jurisprudence we do not consider
it necessary to discuss them further.
5. Our attention
was drawn to the current position in
relevant procedural provisions in the
Civil Procedure Rules. While it is
interesting to note what happens in England we are again firmly of the view
that this matter can be determined by us in accordance with decisions within
the Scottish legal system and we do not therefore propose to consider the
English position any further.
1. EY
documents
Since they are still in a sealed
envelope the matter should be brought before the court in the context of the
motion to open up the envelope and a hearing take place between both parties as
to the principles to be applied in that respect (including the question whether
non-privileged material in a document which also contains privileged material
can be excerpted, or whether, in such circumstances, privilege attaches to the
document as a whole).
Thereafter consideration is to be
given as to how an inventory of the documents in the sealed envelope should be prepared. That should not be done by the respondents or
anyone on their behalf. It is a matter
for the judge to determine how that should best be done.
The question of confidentiality
should be argued against the contents of the inventory. If it becomes or appears to become impossible
for any decision to be made having regard only to the terms of the inventory and
the submissions, we would consider it appropriate that the judge should himself
examine the documents against the background of the principles discussed and
determine the issue of confidentiality and LPP in respect of each of them.
It follows that these documents
should only be released to the respondents if the judge has ruled that LPP does
not apply to all or some of them.
2. PW
documents
Here a hearing should take place to
address the separate issue, the documents having been seen and examined, as to
what extent the respondents may make use of them. The judge is not a jury and is therefore able
to examine the documents, if it becomes necessary so to do. If, at the end of the day, he is to be
regarded as compromised because of material that has been put before him, he
may simply determine the issue and thereafter recuse himself from any further
part in the litigations.