Dumfries And Galloway Council V. Kevin Dunion, Scottish Information Commissioner
| Jurisdiction | Scotland |
| Judge | Sir David Edward,Lord Nimmo Smith,Lord Eassie |
| Neutral Citation | [2008] CSIH 12 |
| Court | Court of Session |
| Published date | 08 February 2008 |
| Year | 2008 |
| Date | 08 February 2008 |
| Docket Number | P3058/07 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Reed Lord Mackay of Drumadoon Lord Marnoch | [2008] CSIH 12 P3058/07 OPINION OF THE COURT delivered by LORD REED In the cause SOVEREIGN DIMENSIONAL SURVEY LIMITED Minuters and Respondents; against MARTIN ROBERT COOPER Respondent and Reclaimer: _______ |
Minuters: Cowan, Solicitor Advocate; Simpson & Marwick
Respondent: Robertson; Beveridge & Kellas
28 November 2008
Introduction
[1] In these proceedings the minuters seek to have the respondent found in contempt of court in respect of his alleged failure to comply with an order of the court made, or at least purportedly made, under section 1(1) of the Administration of Justice (Scotland) Act 1972. The case raises questions as to the scope of such orders and as to the appropriate use of the court's jurisdiction to deal with contempt.
The history of the proceedings
[2] On 7 December 2007 a petition was presented to the court on behalf of the minuters seeking an order against the respondent under section 1(1) of the 1972 Act. The order was sought on the basis that the respondent, who was a former employee and director of the minuters, had acted in breach of his fiduciary duties, in breach of an obligation of confidence, and in breach of a copyright owned by the minuters, in connection with the establishment of a competing business. It was averred that the minuters were likely to bring proceedings against the respondent, and that documents and property listed in a schedule to the petition were "likely to be in issue" in those proceedings. It was further averred that the petitioners were apprehensive that the respondent might take steps to part with or conceal the documents and property in question. The documents listed in the schedule comprised certain specific documents, such as a development plan which was said to be confidential, and other categories of document which might be relevant as evidence to support a claim against the respondent, such as documents showing the nature and extent of the use made by the respondent of the development plan. The property described in the schedule comprised computers and other electronic media on which any of the documents in question were stored.
[3] On the same date the Lord Ordinary granted the order sought in the petition, on the ex parte application of the minuters. The terms of the order followed
Form 64-A, as prescribed by Rule of Court 64.6. After ordering intimation and service of the petition, the order appointed a commissioner of the court in the following terms:
"appoints Jonathan Mitchell QC ....to be commissioner of the court; grants commission and diligence; orders the Commissioner to explain to the respondent or his servants, agents or anyone acting on his behalf on executing the order (a) the meaning and effect of the order; (b) that the respondent may be entitled to claim that certain of the documents and other property are confidential or privileged; (c) that the respondent has a right to seek legal or other professional advice of his choice, and (d) to give the respondent a copy of the Notice in Form 64-B of the Rules of Court....."
The next part of the order granted certain powers to the commissioner, including powers of entry and search:
"grants warrant to and authorises the Commissioner, whether the respondent has allowed entry or not, to enter between the hours of 9am and 5pm on Monday to Friday the respondents' property at [the respondent's home address] and any other place in Scotland owned or occupied by the respondent at which it appears to the Commissioner that any of the documents or property listed in the Second Schedule hereto may be located; grants warrant to the Commissioner, unless the respondent is taking legal or other professional advice on the question of having the order varied, (i) to search for and take all other steps which he considers necessary to take possession of or preserve the documents and property listed in the Second Schedule of the Petition, and (ii) to take possession of and to preserve all or any of the documents and property listed in the said Second Schedule and consign them with the Deputy Principal Clerk of Session to be held by him pending the further orders of the Court .....".
The next part of the order was directed at the respondent, and ordered him to permit the entry and search to take place, and in addition to provide specified information to the commissioner:
"and for that purpose orders the respondent or his servants or agents or anyone acting on his behalf to allow the Commissioner, any person whom the Commissioner considers necessary to assist him and the petitioner's representative to enter the premises named in the order, and unless the respondent has sought legal or other professional advice on the question of having the order varied, orders the respondent or his servants or agents or anyone acting on his behalf (a) to allow the Commissioner and those accompanying him to search for the documents and property listed in the Second Schedule of the Petition and take such other steps as the Commissioner considers it is reasonable to take to fulfil the terms of the order, (b) to allow the Commissioner and those accompanying him to obtain access to any information stored on any computer, server back-up tapes, magnetic discs, tapes, other computer readable media or computer hard-drives owned by or used by the respondent by supplying or providing the means to overcome any and all security mechanisms inhibiting access thereto; (c) to allow the Commissioner, any person whom the Commissioner considers necessary to assist him and the petitioner's representative to remain in the premises until such time as the search is complete, allowing them to continue the search on subsequent days, if necessary, (d) to inform the Commissioner immediately of the whereabouts of the documents and property listed in the Second Schedule hereto, (e) to provide the Commissioner with a list of the names and addresses of everyone to whom the respondent, his servants or agents or anyone on his behalf have given any of the documents and property listed in the Second Schedule hereto, and (f) not to destroy, conceal or tamper with any of the documents and property listed in the Second Schedule hereto, except in accordance with the terms of this order.....".
The final part of the order authorised the minuters' solicitor, and an independent computer expert, to accompany the commissioner for the purpose of identifying the relevant documents and property.
[4] The order was executed on 10 December 2007. The commissioner carried out a search of the respondent's house. During the course of the search, he found a box for a laptop computer. According to the minuters' pleadings, the commissioner asked the respondent where the laptop was. The respondent said that the laptop had been bought for a friend and colleague named Richmond, and that it belonged to Mr Richmond and was in his possession. According to the respondent's pleadings, the respondent said that the laptop had been bought for Mr Richmond but belonged to 3B Consultancy Services Ltd, which was a company for which Mr Richmond worked.
[5] Later that day a meeting took place between the parties at the offices of the respondent's solicitor. According to the minuters' pleadings, the respondent said at the meeting that he had purchased the laptop for his own use and that, at the time when the order was executed, it was being held by a neighbour. He also said that the laptop contained e-mail correspondence with customers of the minuters, and documents relating to 3B Consultancy Services Ltd. Those averments are denied by the respondent. In his pleadings, he maintains that the discussion at the meeting was for the purposes of settlement of the dispute between the parties, and was in any event expressly on an "off the record" basis, and that evidence of what was said at the meeting is therefore inadmissible. He further maintains that he was subjected to improper pressure and threats at the meeting. In addition, he maintains that the laptop did not in any event fall within the scope of the court's order.
[6] Following the meeting, the minuters sought by motion to have the respondent ordained to appear before the court. On 20 December 2007, after hearing counsel, the Lord Ordinary allowed parties to lodge the present minute and answers. In the minute, the minuters allege that the respondent deliberately failed to comply with paragraphs (d) and (e) of the order, and is accordingly in contempt of court. Following further hearings on 5 February and 19 March 2008, the Lord Ordinary appointed a hearing to take place on the respondent's preliminary plea to the relevancy of the minuters' averments. That hearing took place on 24 and 25 April 2008, and also encompassed the respondent's plea that, since the meeting had been held for the purpose of negotiating a settlement of the dispute, anything said at the meeting was privileged and inadmissible in evidence. By the date of that hearing, the laptop in question had been delivered to the commissioner.
[7] Following the hearing, the Temporary Judge issued an Opinion dated 6 June 2008 and, for the reasons explained in the Opinion, repelled the plea of privilege. The implication of her Opinion was that a proof before answer was to be allowed in respect of the remaining issues. On 13 June 2008, following a further hearing, she granted leave to reclaim. On 24 June 2008, following a hearing, the court found the reclaiming motion suitable for early disposal. Following a further hearing By Order on 22 October 2008, the reclaiming motion came before us on 28 November 2008. In the meantime, in January 2008 the minuters began proceedings against the respondent, 3B Consultancy Services and Mr Richmond, in which they seek interdict and damages. The record in those proceedings closed in August 2008.
[8] In the course of the hearing of the reclaiming...
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