Petition And Answers In The Cause Narden Services Limited V. Inverness Retail And Business Park Limited And Others For An Order For Rectification
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Abernethy,Lord Reed |
| Neutral Citation | [2008] CSIH 14 |
| Court | Court of Session |
| Published date | 12 February 2008 |
| Year | 2008 |
| Docket Number | P961/03 |
| Date | 12 February 2008 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Johnston Lord Reed Lord Abernethy | [2008] CSIH 14 P961/03 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 INVERNESS RETAIL and BUSINESS PARK LIMITED and OTHERS 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: Dundas & Wilson
12 February 2008
[1] This reclaiming motion relates to an interlocutory opinion by a temporary judge in this petition for rectification. As will become clear the petitioners did not feature before us and the issues were canvassed as between the first, second and fifth respondents (the appellants) and the third and fourth respondents (the respondents) relating to how the court should deal with issues of confidentiality in relation to certain bundles of recovered documents. Initially the reclaiming motion was initiated by the respondents and the current appellants entered a cross reclaiming motion. The former was abandoned and the only issue before us related to the latter.
[2] There were two separate bundles of documents emanating, firstly, from accountants Ernst & Young (EY documents) and, separately, from Paull & Williamson, Solicitors (PW documents).
[3] As will become clear again the bundles required to be dealt with in a separate way in as much that those emanating from EY are still in two sealed envelopes which have not been opened and are not, so far as we could discover, subject yet to any inventory identifying what they are. On the other hand the PW documents were sent directly from the haver to the respondents without the knowledge of the appellants and, accordingly, the respondents have seen them. This situation raises a separate issue to be addressed in due course from that relating to EY.
[4] Against that background the relevant part of the Lord Ordinary's Opinion is as follows:
"[18] The position so far as these documents are concerned is that there is before the court a motion to open the confidential envelopes Nos [26 and 27] of process. Although that motion was not intimated to the first, second and fifth respondents because they have not entered the process, they have now entered opposition to the motion. They are entitled to do this by virtue of rule of court 35.8(4). I cannot see any valid reason for an alternative procedure being followed, such as having submissions on confidentiality before the commissioner. I shall therefore continue the motion on behalf of the third and fourth respondents to open up the confidential envelopes Nos 26 and 27 of process lodged by Ernst & Young to a date to be afterwards fixed for submissions on the merits of the claim of confidentiality being made by the first, second and fifth respondents.
[19] It is in relation to the documents from Paull & Williamsons that the problem arises. The interlocutor of 13 April 2004 allowed the confidential envelopes Nos 23 and 24 of process to be opened up and the third and fourth respondents now seek to lodge as late productions No 7/9-35 of process, which consists of part of the documents from Nos 23 and 24 of process. Put shortly, the position adopted by Mr Scott on behalf of the third and fourth respondents was that they had followed the procedure in the rules of court and it was now too late for the court to entertain a claim of confidentiality in relation to these documents on behalf of the first, second and fifth respondents. I have reached the view that, in light of certain provisions of the Human Rights Act 1998, that submission cannot be sustained. The claim which the first, second and fifth respondents seek to make in relation to these documents is one of confidentiality based on legal professional privilege, an absolute legal privilege and a fundamental human right which has been held to be part of the right of privacy guaranteed by article 8 of the Convention, and they assert that the disclosure of these documents would amount to a breach of their article 8 rights. It is unlawful for the court to act in a way which is incompatible with a Convention right: section 6(1) and (3)(a) of the 1998 Act. In relation to any act or proposed act of a public authority which the court finds is or would be unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate: section 8(1) of the 1998 Act. It therefore seems to me that, notwithstanding that the claim of confidentiality in relation to these documents by the first, second and fifth respondents is being made later in the day, and the third and fourth respondents have followed the rules of court so far as their recovery is concerned, the court, faced as it now is with a claim of confidentiality by the first, second and fifth respondents, must take steps to ensure that their article 8 rights are protected. It further seems to me that, if I were to accept the submission by Mr Scott, it is at the very least possible that the court would be acting in a away which was incompatible with a Convention right and therefore acting unlawfully. In my opinion the procedure which should now be adopted to deal with the claim of confidentiality on behalf of the first, second and fifth respondents is that I should continue their motion of 26 April 2004 and the motion by the third and fourth respondents for...
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