Japan Leasing (Europe) Plc v Weir's Trustee (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 04 March 1998 |
| Date | 04 March 1998 |
| Docket Number | No 59 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
EvidenceBest evidenceWhether copy documents admissible as evidence of content of principalsWhether rules of procedure to be relaxed where summary applicationCivil Evidence (Scotland) Act 1988 (cap 32), sec 2(1)(b)1
PracticeSheriff court practiceRemit to sheriff courtWhether appropriate to remit for party to produce principal documents so that a comparison could be made with copy documents relied upon at proofWhether appropriate to consider principal documents in isolationCourt of Session Act 1988 (cap 36), sec 321
A trustee rejected a claim made by a company in the sequestration of the debtor. The claim was in respect of money due in terms of a lease. The company appealed to the sheriff by way of summary application. The sheriff allowed the appeal and ordained the trustee to admit the company to an ordinary ranking in the debtor's sequestration in respect of charges for equipment leased by the debtor from a third party who in turn leased it from the company. That third party had assigned to the company all rental monies, which assignation was intimated to the debtor. The trustee had rejected the company's claim on the basis that he had no sufficient documentary evidence of a link between the company and any lease agreement signed by the debtor. The company produced a photocopy of the hire purchase contract between it and the third party with an unsigned copy computer print-out attached, together with a photocopy deed of assignment between the third party and the company and the photocopy of the company's letter of intimation to the debtor. The company led evidence from its general manager for Europe as to the authenticity of the documents, to which objection was taken by the trustee on the basis that the best evidence as to the contents of the original documents consisted in the original documents themselves. The sheriff repelled the objection and the trustee thereafter appealed to the Court of Session. The company argued that sec 2(1)(b) of the Civil Evidence (Scotland) Act 1988 applied so as to render a copy document admissible. The company also argued that, since the appeal to the sheriff had been by way of summary application, the normal rules of procedure should be relaxed as there were no rules relating specifically to documents rendered admissible by the Civil Evidence (Scotland) Act 1988. Alternatively it was argued that the appeal court should remit the matter to the sheriff in terms of sec 32 of the Court of Session Act 1988 for the company to produce the principals so that the parties and the sheriff could compare them with the copy documents referred to at the proof.
Held (1) that sec 2(1)(b) was intended to apply to the past statement of a person, whether that statement was given orally or in writing so that evidence given in court as to that statement became admissible as evidence of any matter contained in it, provided that direct oral evidence by that person as to
that matter was admissible; but (2) that that did not render what purported to be a copy of the type of document in this case admissible as evidence of the contents of the principal because the copy document was not a statement made by a person otherwise than in the course of the proof which could only apply, if at all, to a principal document being spoken to by the signatories and, in any event, the copy document was inadmissible as evidence of the contents of the principal, since direct oral evidence of the signatories would not be admissible apart from sec 2, under the best evidence rule; (3) that it did not make any difference that the appeal was the subject of a summary application as there was an obvious distinction between rules of procedure on the one hand and rules of evidence on the other; and (4) that it was inappropriate to remit the matter to the sheriff in terms of sec 32 as that power was to be exercised only in circumstances which justified such an exceptional course of action which in this case was inappropriate, because...To continue reading
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