Under the Court of Session Rules, the Sheriff Court Rules and the Administration of Justice (Scotland) Act 1972, a party wishing to obtain documentation or other material in the hands of any third party (including HSE) can do so by way of a "specification of documents" or "specification of property". In Scottish civil procedure documents and property can be recovered only if they will assist parties either in establishing or making their cases more specific. This procedure has some similarity to the English practice of disclosure.
Documents and property are usually obtained and recovered by what is known as an "Application for Commission and Diligence". The procedure is commenced by a motion seeking production of the materials identified in the "specification of documents". The specification of documents sets out in detail the documents to be delivered. If a recipient of a specification then issues the documents sought there is no need for the recipient to attend court as a witness. The production of relevant samples, pieces of equipment or plant are obtained by a "specification of property".
Applications for Commission and Diligence seeking documents/property from HSE must be intimated in advance to the Advocate General on HSE's behalf. They are then forwarded to Shepherd & Wedderburn who in turn forward the application to the appropriate HSE Directorate/Division office. If an order is received direct from the solicitor for the party seeking the documentation, the inspector should consult with Shepherd & Wedderburn before taking any action.
When a party has recovered documents and does not lodge them in Court within fourteen days of their receipt, that party must give written intimation to every other party that they may borrow, inspect or copy the documents within fourteen days after the date of intimation. In this way any other party to the case can lodge the recovered documents in Court if they wish to do so
If you receive a specification of documents, you should collect the documents that appear to fall within the terms of the specification. Specifications follow a fairly conventional pattern and tend to describe in general terms the material sought, for example: 'all reports and other written documentation at or about the time of the accident', or, 'all wage books and records for a certain period or any instructions issued by a party during a specific period'. There should be enough detail in the specification to make it clear which documents are being requested. The paragraphs of a specification are usually referred to as "calls". If it is difficult to identify clearly which documents fall within the terms of the specification, you should discuss the matter direct with Shepherd & Wedderburn. When more than one inspector (or other member of staff) has been involved, you should ensure that all relevant documents held by different parts of HSE are collected.
The period of notice under this procedure is limited; any documents falling within the specification should be produced within seven days. Speed in dealing with the papers is therefore essential. There may be occasions when the seven day period cannot be complied with, for example documents may be difficult to retrieve; in such cases Shepherd & Wedderburn should be advised, they will liaise with the party serving the specification to agree suitable timescales. This is usually uncontroversial. The relevant documents should be photocopied (originals need not be sent), listed in an inventory, and returned with the original specification to Shepherd & Wedderburn who will complete the certificate issued with the specification on behalf of HSE, and arrange for the delivery of relevant documents. Although HSE can complete the certificate it is recommended that this is handled by Shepherd & Wedderburn. One exception is when Shepherd & Wedderburn are themselves the solicitors seeking the documentation; in such cases the appropriate Band 1 or 2 inspector should complete the certificate attached to the specification.
In all cases the inspector and administration staff retrieving the papers should keep a record of the administrative time taken to deal with the order, and this should be charged at the ready reckoner rate for a Band 6 member of staff, even where an inspector does the work. A simple fee note should be returned with the documents and order to Shepherd & Wedderburn. Each case should be given a unique Directorate/Division reference number to aid monitoring both of the Shepherd & Wedderburn account and of the receipt of the administration fee.
In general terms, the great majority of documents held by HSE will be disclosable, if they fall within the terms of the specification. The main exceptions to this will be any report to, and direct correspondence with, the Procurator Fiscal or Crown Office about any prosecution arising from any case, and also some internal HSE legal discussions. Reports to the Procurator Fiscal, and also notes of discussions and letters to the Procurator Fiscal are all confidential; these are privileged communications and should not be disclosed. Some internal HSE legal discussions will also be confidential, others however will not. In broad terms all discussions with Shepherd & Wedderburn will be subject to legal advice privilege and, as such, confidential. Some internal HSE discussions on, for example, possible prosecutions, will also attract confidentiality. However, as this area of the law is complex it is recommended that in all cases where confidentiality arises a view is sough from Shepherd & Wedderburn.
When HSE wishes to claim that certain documents are confidential, these have to be forwarded via Shepherd & Wedderburn to the Deputy Principal Clerk of Session in a sealed envelope. Thereafter, the court will assess whether the documents are confidential, and if so, disclosure will not be required.
In the past HSE has resisted the disclosure of witness statements (other than those prepared by inspectors). The court has however now directed that all witness statements must be disclosed, and you should take this into account when reviewing papers for release. You should bear in mind that all material gathered in the course of all investigations will normally be disclosed. This may therefore include material proper to a duty holder who has made it available to you but who might be concerned if it were to go into the public domain. You should therefore on conclusion of your investigation return it to its owner
There are two other methods by which solicitors who are party to civil proceedings may seek the release of documents and productions:-
If you receive a Citation or a Section 1 Order, the advice of Shepherd & Wedderburn should be sought.