It is essential from the moment litigation is contemplated to preserve and recover the relevant documentation. Often, it quickly comes to light that certain documentation is in the hands of someone else. It is possible to obtain the documentation by agreement with the other party but there will be occasions where agreement cannot be reached. Should voluntary disclosure of documentation flounder then a party will have to resort to legal procedure to recover and preserve documentation.
A party contemplating litigation in Scotland may want to see relevant information to assist with the proper preparation of their case before raising a Court action. It should be noted that a section 1 order is the only formal legal option available for recovery of documents before a Court action is raised. Once a case is up and running then relevant documentation can be recovered by a ‘specification of documents’.
The term ‘Section 1 Order’ comes from section 1 of the Administration of Justice (Scotland) Act 1972, which gives the Court of Session and the Sheriff Courts the power to order inspection of documents, property etc when an applicant lodges a petition. When a petition seeking a Section 1 Order is requested without advance notice, on the basis that evidence is likely to be destroyed or concealed, then it effectively becomes a “dawn raid”.
If an order is granted then a Commissioner is appointed who has the power to enter into premises where it appears the documentation may be located.
The Court will need to be satisfied that the applicant is able to state a ‘prima facie’ case, i.e. an arguable case. This is to discourage speculative applications to be made which would amount to ‘fishing’ in the hope of finding something which might turn out to be useful.
The applicant should be able to show that:
The benefit of a Section 1 Order is that it allows a party to determine the nature and extent of another party’s knowledge which may be necessary to determine for example what negligence there may have been on the part of the other party in a particular case.
There are occasions where there is a risk that if a party in possession of documentation is made aware that another party is looking to recover it, then steps may be taken to hide or destroy the documentation. In this scenario, it may be necessary to apply for an Order ex parte, i.e. having only heard the applicant's argument for the Order.
The benefit of an ex parte Section 1 Order is that it can be obtained from the Court without the other party becoming aware of it so increasing the likelihood that the documentation may be recovered.
An Order is intrusive and annoying to the possessor of the documentation so the test applied when deciding whether an order should be granted is quite stringent.
The applicant should be able to show that:
If the above test can be met, then an Order can be obtained relatively quickly.
It should also be borne in mind that a failure to fully disclose all relevant facts and circumstances to the Court at the time of making the application for an Order, can lead to it being recalled.
A useful checklist for what is required before making a section 1 order can be found in Chapter 64 of the Court of Session Rules
A Section 1 Order is a useful legal procedure to obtain recovery of documentation at a pre-litigation stage. In certain circumstances, where there is an urgent need to preserve and recover documentation then an ex parte Order may be sought to carry out a ‘dawn raid’.
Accordingly, careful consideration should be given to whether or not it is necessary to seek a Section 1 Order as it can be expensive.
If you have any queries arising from this article, please contact our Dispute Resolution team on 0131 226 8200
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