Sovereign Dimensional Survey Limited For An Order Under Section 1 Of The Administration Of Justice Act 1972
| Jurisdiction | Scotland |
| Judge | Morag Wise, QC |
| Neutral Citation | [2008] CSOH 85 |
| Court | Court of Session |
| Published date | 06 June 2008 |
| Date | 06 June 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH | |
| OPINION OF M WISE, Q.C. (sitting as a Temporary Judge) in the Petition of SOVEREIGN DIMENSIONAL SURVEY LIMITED Petitioners; for An order under section 1 of the Administration of Justice Act 1972 ________________ |
Act: Cowan, Solicitor Advocate; Simpson & Marwick W.S.
Alt: E. Robertson; Beveridge & Kellas
6 June 2008
Introduction
[1] The Petitioner is a company engaged, inter alia, in the provision of dimensional control and laser scanning services to the oil and gas industry. The Respondent, Martin Robert Cooper was appointed a Director of the Petitioner with effect from 27 September September 2006. The Petition is directed at the recovery of certain confidential material relating to the Petitioner's business that it is alleged the Respondent has removed and retained following his resignation on 15 November November 2007. By interlocutor of 7 December December 2007, an order was made in terms of the prayer of the Petition, appointing a Commissioner (Jonathan J Mitchell QC) to search for and take all other steps necessary to take possession of the documents and property listed in the Second Schedule of the Petition. The interlocutor of 7 December December also made the following further orders against the respondent:
"(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."
[2] On 10 December December 2007, the Commissioner duly attended at the respondent's home in Aberdeen to conduct a search. His report of that search is lodged in process. The Commissioner records that he asked the Respondent questions about a laptop which was not found on the premises, but for which a despatch note and empty box were found within the Respondent's property.
[3] The Petitioner alleges that the Respondent has failed to obtemper the court's interlocutor of 7 December December 2007, with particular reference to the laptop about which the Respondent was questioned by the Commissioner.
[4] The case came before me for a Procedure Roll discussion on the first and second pleas in law for the Respondent in his Answers to the Petitioner's Minute alleging Contempt of Court. Those pleas in law are in the following terms ;:-
"1. The Petitioner's averments being irrelevant et separatim lacking in specification, the minute should be dismissed.
2. The meeting of 10 December December being for the purpose of negotiating a settlement of the dispute between the parties, anything said is privileged, and the averments thereanent should not be remitted to probation."
The Respondent's submissions
[5] Counsel for the Respondent's primary submission was that the Petitioner's Minute failed to give clear and specific notification of the nature of the alleged contempt. As contempt of court is a serious and quasi criminal matter, he argued, any alleged breach must be clearly and distinctly averred (Byrne v Ross 1992 S.C. 498). If the Petitioner's Minute was allowed to proceed to an evidential hearing without proper restraints, that would contravene standards of fairness. The narrative in paragraph 8 of the Minute failed to set out a clear and specific statement that, if proved, would give rise to a finding of contempt.
[6] The allegations against the Respondent relate exclusively to the laptop about which the Respondent was questioned by the Commissioner. It is averred in paragraph 6 of the Minute that "The laptop, and the information and documents contained therein, are covered by the Petition." The Petition covers all business activities carried out or entered into under or using the names Coopsco, RDS, RDS Limited, Radar Dimensional Survey Limited "... or any name materially similar thereto." (para para 3(c) of the Second Schedule to the Petition). ). There is no averment that the laptop relates to any business carried out under those names. It is averred that the laptop relates to 3B Consultancy3B Consultancy Services Limited. While there is an averment that prior to 27 November November 2007 3B Consultancy3B Consultancy Services Limited was known as Radar DS Limited, there is no reference in the Petition at all to the business name 3B Consultancy3B Consultancy Services Limited and any breach would have to relate to a business entity carried out under or using the names specified in the Petition. In the absence of a clear averment about that, the Minute was irrelevant and should be dismissed.
It was emphasised that the process of recovering material by a section1 Petition is not a wide ranging search, it is a controlled recovery by a court appointed Commissioner. Reference was made to Dominion Technology Limited v Gardner Cryogenics Limited ( (No.2) 1993 S.L.T. 832 where it was held that the courts would not order recovery if that meant that advantage was taken of the unlawful use of a previous order of the court. In this case, the court order relates to particular premises and property at particular premises. Any statements made by the Respondent to the Commissioner were irrelevant because it is not contended that there was any laptop on the premises.
[7] Mr Mr Robertson's secondary submission was that, if I was not prepared to hold that the Minute as a whole was irrelevant, then I should delete the averments in paragraph 4 of the Minute on the basis that as a matter of law, the discussions referred to therein are the subject of privilege. Paragraph 4 avers that shortly after the Commission on 10 December December, the respondent contacted the petitioner direct and that at his request a meeting took place at 5.10 pm on 10 December December in the offices of the respondent's then solicitor. The Respondent and three officers of the Petitioner were present, but no legal representatives attended. The Petitioner's position, in essence, is that statements made by the Respondent at that meeting, if proved, amount to admissions in fact in relation to (i) the material on the laptop the whereabouts of which the Respondent failed to inform the Commissioner of, knowing that it fell within the material covered by the order and (ii) the giving of false information about the laptop to the Commissioner.. Mr Mr Robertson's argument that those proof of those averments should not be allowed can be encapsulated as follows:
(1) The meeting of 10 December December 2007 was a "settlement meeting"
(2) All statements made at a meeting that has as its purpose settlement negotiations are privileged, if there is agreement, express or implied, that the communications should not be admitted
(3) A distinction should be drawn between statements made at such meetings and correspondence said to be privileged because it contains the words "without prejudice." With documents that contain both statements covered by privilege and admissions of fact the court can easily redact the privileged words. That is not possible with accounts of a meeting.
(4) In the absence of any Scottish authority directly in point on the issue of settlement meetings, the English authorities that effectively treat all communications designed to achieve extra judicial settlement as privileged should be followed.
The nature of the meeting of 10 December December 2007
[8] Mr Mr Robertson referred to an Affidavit of John Burgess of the Petitioner, (6/13 of Process) which was prepared when the allegation of contempt was first made. That Affidavit narrates, with reference to the meeting, that the Respondent wanted to reach an agreement "to make it all go away". There are several references to settlement and in particular the Affidavit suggests that one of the Petitioner's officers advised the Respondent at the meeting that in order to achieve settlement he would have to write a full statement.
[9] As there was a subsequent challenge by Mr Mr Cowan to reference to this Affidavit at Procedure Roll, Mr Mr Robertson made further submissions about the position. He argued that the rule that documents not incorporated in the pleadings cannot be referred to at Procedure Roll without agreement related to productions and reports but could not apply to an Affidavit, which was sworn testimony. Affidavits, once lodged in process are accepted as evidence. No witness requires to speak to them - Civil Evidence (Scotland) Act 1988, section 2(1)(b).
[10] He submitted further that in the event that I decided that I should not have regard to it for this purpose, then even without the Affidavit, the only reasonable inference that could be drawn from the undisputed facts is that this was a settlement meeting. It took place immediately after the Commission and against a background of litigation. The meeting was arranged at the Respondent's instigation and it took place at solicitors offices, but without representatives present as the discussions were between parties only. The subject matter of the discussion was the issues raised in the litigation.
The scope of privileged communications in English Law
[11] Mr Mr Robertson argued that there was a clear rule that, as a matter of public policy, parties to a dispute should be allowed to negotiate freely without fear of the detail of those negotiations subsequently being founded on by an opponent in the absence of settlement. Under reference to Rush & Tompkins Ltd v Greater London Council and Another [1989] AC 1280, an English appeal to the House of Lords, he stated that the public policy rule there confirmed applied to oral as well as written negotiations where these were genuinely aimed at settlement (per Lord Griffiths at at 1299-1300). The decision in Rush & Tompkins related to the issue of whether written admissions made in an attempt to reach settlement with one party were admissible at the...
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