Sheriff Courts (Scotland) Act 1907

CHAPTER 28 S RECOVERY OF EVIDENCE

Application and interpretation of this Chapter S

28.1. (1) This Chapter applies to the recovery of any evidence in a cause depending before the sheriff.

(2) In this Chapter, “the Act of 1972” means the M1 Administration of Justice (Scotland) Act 1972.

Marginal Citations

M1 1972 c.59.

Applications for commission and diligence for recovery of documents or for orders under section 1 of the Act of 1972 S

28.2. (1) An application by a party for—

(a) a commission and diligence for the recovery of a document, or

(b) an order under M2 section 1 of the Act of 1972,

shall be made by motion.

(2) At the time of lodging a motion under paragraph (1), a specification of—

(a) the document or other property sought to be inspected, photographed, preserved, taken into custody, detained, produced, recovered, sampled or experimented on or with, as the case may be, or

(b) the matter in respect of which information is sought as to the identity of a person who might be a witness or a defender,

shall be lodged in process.

[F1 (3) A copy of the specification lodged under paragraph (2) and the motion made under paragraph (1) shall be intimated by the applicant to–

(a) every other party;

(b) in respect of an application under section 1(1) of the M3 Act of 1972, any third party haver; and

[F2 (c) where necessary–

(i) the Advocate General for Scotland (in a case where the document or other property sought is in the possession of either a public authority exercising functions in relation to reserved matters within the meaning of Schedule 5 to the Scotland Act 1998, or a cross-border public authority within the meaning of section 88(5) of that Act); or

(ii) the Lord Advocate (in any other case),

and, if there is any doubt, both.]]

(4) Where the sheriff grants a motion made under paragraph (1) in whole or in part, he may order the applicant to find such caution or give such other security as he thinks fit.

[F3 (5) The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1).]

Textual Amendments

F1 Rule 28.2(3) substituted (1.11.1996) by S.I. 1996/2445, para. 3(32)

F2 Sch. 1 rule 28.2(3)(c) substituted (29.1.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007 (S.S.I. 2007/6), para. 2(10)(a)

F3 Sch. 1 rule 28.2(5) substituted (29.1.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007 (S.S.I. 2007/6), para. 2(10)(b)

Marginal Citations

M2 Section 1 of the Administration of Justice (Scotland) Act 1972 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), section 19 and Schedule 2, paragraph 15.

M3 1972 c.59.

Optional procedure before executing commission and diligence S

28.3. (1) The party who has obtained a commission and diligence for the recovery of a document on an application made under rule 28.2(1)(a), may at any time before executing it against a haver, serve on the haver an order in Form G11 (in this rule referred to as “the order”); and if so, the provisions of this rule shall apply.

(2) The order [F4 and a copy of the specification referred to in rule 28.2(2) as approved by the court]shall be served on the haver or his known solicitor and shall be complied with by the haver in the manner and within the period specified in the order.

(3) Not later than the day after the date on which the order, [F5 the certificate appended to Form G11] and any document is received by the sheriff clerk from a haver, he shall intimate that fact to each party.

(4) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (3).

(5) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (3), the sheriff clerk shall intimate that failure to every other party.

(6) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (5), the sheriff clerk shall return it to the haver who delivered it to him.

(7) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the sheriff clerk who shall—

(a) intimate the return of the document to every other party; and

(b) if no other party uplifts the document within 14 days after the date of intimation, return it to the haver.

(8) If the party who served the order is not satisfied—

(a) that full compliance has been made with the order, or

(b) that adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 28.4.

(9) Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the sheriff may, on the motion of the party who served the order, direct that that party shall be allowed to inspect the book and take copies of any entries falling within the specification.

(10) Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (9), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

(11) The sheriff may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract [F6 from that book].

Textual Amendments

F4 Words in rule 28.3(2) inserted (1.11.1996) by S.I. 1996/2445, para. 3(33)(a)

F5 Words in rule 28.3(3) substituted (1.11.1996) by S.I. 1996/2445, para. 3(33)(b)

F6 Words in rule 28.3(11) inserted (1.11.1996) by S.I. 1996/2445, para. 3(33)(c)

Execution of commission and diligence for recovery of documents S

28.4. (1) The party who seeks to execute a commission and diligence for recovery of a document obtained on an application made under rule 28.2(1)(a) shall—

(a) provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment; and

(b) instruct the clerk and any shorthand writer considered necessary by the commissioner or any party; and

(c) be responsible for the fees of the commissioner and his clerk, and of any shorthand writer.

(2) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission.

(3) The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.

(4) A citation in Form G13 shall be served on the haver with a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments) [F7 ; and the party citing the haver shall lodge a certificate in Form G12].

(5) The parties and the haver shall be entitled to be represented by a solicitor or person having a right of audience before the sheriff at the execution of the commission.

(6) At the commission, the commissioner shall—

(a) administer the oath de fideli administratione to any [F8 clerk and any] shorthand writer appointed for the commission; and

(b) administer to the haver the oath in Form G14, or, where the haver elects to affirm, the affirmation in Form G15.

(7) The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

(8) Not later than the day after the date on which such a report, document and inventory, if any, are received by the sheriff clerk, he shall intimate to the parties that he has received them.

(9) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (8).

(10) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (8), the sheriff clerk shall intimate that failure to every other party.

(11) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (10), the sheriff clerk shall return it to the haver.

(12) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the sheriff clerk who shall—

(a) intimate the return of the document to every other party; and

(b) if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.

Textual Amendments

F7 Words in rule 28.4(4) inserted (1.11.1996) by S.I. 1996/2445, para. 3(34)(a)

F8 Words in rule 28.4(6)(a) inserted (1.11.1996) by S.I. 1996/2445, para. 3(34)(b)

Execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972 S

28.5. (1) An order under section 1(1) of the Act of 1972 for the production or recovery of a document or other property shall grant a commission and diligence for the production or recovery of that document or other property.

(2) Rules 28.3 (optional procedure before executing commission and diligence) and 28.4 (execution of commission and diligence for recovery of documents) shall apply to an order to which paragraph (1) applies as they apply to a commission and diligence for the recovery of a document.

Execution of orders for inspection etc. of documents or other property under section 1(1) of the Act of 1972 S

28.6. (1) An order under section 1(1) of the Act of 1972 for the inspection or photographing of a document or other property, the taking of samples or the carrying out of any experiment thereon or therewith, shall authorise and appoint a specified person to photograph, inspect, take samples of, or carry out any experiment on or with any such document or other property, as the case may be, subject to such conditions, if any, as the sheriff thinks fit.

(2) A certified copy of the interlocutor granting such an order shall be sufficient authority for the person specified to execute the order.

(3) When such an order is executed, the party who obtained the order shall serve on the haver a copy of the interlocutor granting it, a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

Execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972 S

28.7. (1) An order under section 1(1) of the Act of 1972 for the preservation, custody and detention of a document or other property F9 . . . shall grant a commission and diligence for the detention and custody of that document or other property.

(2) The party who has obtained an order under paragraph (1) shall—

(a) provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b) be responsible for the fees of the commissioner and his clerk; and

(c) serve a copy of the order on the haver.

(3) The report of the execution of the commission and diligence, any document or other property taken by the commissioner and an inventory of such property, shall be sent by the commissioner to the sheriff clerk for the further order of the sheriff.

Textual Amendments

F9 Words in rule 28.7(1) omitted (1.11.1996) by S.I. 1996/2445, para. 3(35)

Confidentiality S

28.8. (1) Where confidentiality is claimed for any evidence sought to be recovered under any of the following rules, such evidence shall [F10 ,where practicable,] be enclosed in a sealed packet:—

28.3 (optional procedure before executing commission and diligence),

28.4 (execution of commission and diligence for recovery of documents),

28.5 (execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972),

28.7 (execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972).

(2) A motion to have such a sealed packet opened up [F11 or such recovery allowed] may be lodged by—

(a) the party who obtained the commission and diligence; or

(b) any other party after the date of intimation by the sheriff clerk under rule 28.3(5) or 28.4(10) (intimation of failure to uplift documents).

(3) In addition to complying with rule 15.2 (intimation of motions), the party lodging such a motion shall intimate the terms of the motion to the haver by post by the first class recorded delivery service.

(4) The person claiming confidentiality may oppose a motion made under paragraph (2).

Textual Amendments

F10 Words in rule 28.8(1) inserted (1.11.1996) by S.I. 1996/2445, para. 3(36)(a)

F11 Words in rule 28.8(2) inserted (1.11.1996) by S.I. 1996/2445, para. 3(36)(b)

Warrants for production of original documents from public records S

28.9. (1) Where a party seeks to obtain from the keeper of any public record production of the original of any register or deed in his custody for the purposes of a cause, he shall apply to the sheriff by motion.

(2) Intimation of a motion under paragraph (1) shall be given to the keeper of the public record concerned at least 7 days before the motion is lodged.

(3) In relation to a public record kept by the Keeper of the Registers of Scotland or the Keeper of the Records of Scotland, where it appears to the sheriff that it is necessary for the ends of justice that a motion under this rule should be granted, he shall pronounce an interlocutor containing a certificate to that effect; and the party applying for production may apply by letter (enclosing a copy of the interlocutor duly certified by the sheriff clerk), addressed to the Deputy Principal Clerk of Session, for an order from the Court of Session authorising the Keeper of the Registers or the Keeper of the Records, as the case may be, to exhibit the original of any register or deed to the sheriff.

(4) The Deputy Principal Clerk of Session shall submit the application sent to him under paragraph (3) to the Lord Ordinary in chambers who, if satisfied, shall grant a warrant for production or exhibition of the original register or deed sought.

(5) A certified copy of the warrant granted under paragraph (4) shall be served on the keeper of the public record concerned.

(6) The expense of the production or exhibition of such an original register or deed shall be met, in the first instance, by the party who applied by motion under paragraph (1).

Commissions for examination of witnesses S

28.10. (1) This rule applies to a commission—

(a) to take the evidence of a witness who—

(i) is resident beyond the jurisdiction of the court;

(ii) although resident within the jurisdiction of the court, resides at some place remote from that court; or

(iii) by reason of age, infirmity or sickness, is unable to attend the diet of proof; F12 . . .

(b) in respect of the evidence of a witness which is in danger of being lost, to take the evidence to lie in retentis [F13 ; or]

[F14 (c) on special cause shown, to take evidence of a witness on a ground other than one mentioned in sub-paragraph (a) or (b)]

(2) An application by a party for a commission to examine a witness shall be made by motion; and that party shall specify in the motion the name and address of at least one proposed commissioner for approval and appointment by the sheriff.

[F15 (2A) A motion under paragraph (2) may include an application for authority to record the proceedings before the commissioner by video recorder:]

(3) The interlocutor granting such a commission shall be sufficient authority for citing the witness to appear before the commissioner.

(4) At the commission, the commissioner shall—

(a) administer the oath de fideli administratione to any [F16 clerk and any] shorthand writer appointed for the commis sion; and

(b) administer to the witness the oath in Form G14, or where the witness elects to affirm, the affirmation in Form G15.

(5) Where a commission is granted for the examination of a witness, the commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.

Textual Amendments

F12 Word in rule 28.10(1)(a)(iii) omitted (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(i)

F13 Rule 28.10(1)(b): “;or” substituted for the full-stop (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(ii)

F14 Rule 28.10(1)(c) inserted (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(iii)

F15 Sch. 1 rule 28.10(2A) inserted (1.7.2008) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2008 (S.S.I. 2008/223), art. 11

F16 Words in rule 28.10(4)(a) inserted (1.11.1996) by S.I. 1996/2445, para. 3(37)(b)

Commissions on interrogatories S

28.11. (1) Where interrogatories have not been dispensed with, the party who obtained the commis sion to examine a witness under rule 28.10 shall lodge draft interrogatories in process.

(2) Any other party may lodge cross-interrogatories.

(3) The interrogatories and any cross-interrogatories, when adjusted, shall be extended and returned to the sheriff clerk for approval and the settlement of any dispute as to their contents by the sheriff.

(4) The party who has obtained the commission shall—

(a) provide the commissioner with a copy of the pleadings (including any adjustments and amend ments), the approved interrogatories and any cross-interrogatories and a certified copy of the interlocutor of his appointment;

(b) instruct the clerk; and

(c) be responsible, in the first instance, for the fee of the commissioner and his clerk.

(5) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.

(6) The executed interrogatories, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

(7) Not later than the day after the date on which the executed interrogatories, any document and an inventory of that document, are received by the sheriff clerk, he shall intimate to each party that he has received them.

(8) The party who obtained the commission to examine the witness shall lodge in process—

(a) the report of the commission; and

(b) the executed interrogatories and any cross-interrogatories.

Commissions without interrogatories S

28.12. (1) Where interrogatories have been dispensed with, the party who has obtained a commis sion to examine a witness under rule 28.10 shall—

(a) provide the commissioner with a copy of the pleadings (including any adjustments and amend ments) and a certified copy of the interlocutor of his appointment;

(b) fix a diet for the execution of the commission in consultation with the commissioner and every other party;

(c) instruct the clerk and any shorthand writer; and

(d) be responsible [F17 in the first instance] for the fees of the commissioner, his clerk and any shorthand writer.

(2) All parties shall be entitled to be present and represented at the execution of the commission.

(3) The report of the execution of the commission, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

(4) Not later than the day after the date on which such a report, any document and an inventory of that document are received by the sheriff clerk, he shall intimate to each party that he has received them.

(5) The party who obtained the commission to examine the witness shall lodge the report in process.

Textual Amendments

F17 Words in Sch. 1 rule 28.12(1)(d) inserted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), {art. 2(7)}

Evidence taken on commission S

28.13. (1) Subject to the following paragraphs of this rule and to all questions of relevancy and admissibility, evidence taken on commission under rule 28.11 or 28.12 may be used as evidence at any proof of the cause.

(2) Any party may object to the use of such evidence at a proof; and the objection shall be determined by the sheriff.

(3) Such evidence shall not be used at a proof if the witness becomes available to attend the diet of proof.

(4) A party may use such evidence in accordance with the preceding paragraphs of this rule not withstanding that it was obtained at the instance of another party.

Letters of request S

28.14. (1) [F18 Subject to paragraph (7), this] rule applies to an application for a letter of request to a court or tribunal outside Scotland to obtain evidence of the kind specified in paragraph (2), being evidence obtainable within the jurisdiction of that court or tribunal, for the purposes of a cause depending before the sheriff.

(2) An application to which paragraph (1) applies may be made in relation to a request—

(a) for the examination of a witness [F19 ,]

(b) for the inspection, photographing, preservation, custody, detention, production or recovery of, or the taking of samples of, or the carrying out of any experiment on or with, a document or other property, as the case may be [F20 ,]

[F21 (c) for the medical examination of any person,

(d) for the taking and testing of samples of blood from any person, or

(e) for any other order for obtaining evidence,

for which an order could be obtained from the sheriff.]

(3) Such an application shall be made by minute in Form G16 together with a proposed letter of request in Form G17.

(4) It shall be a condition of granting a letter of request that any solicitor for the applicant [F22 , or a party litigant, as the case may be, shall be personally liable, in the first instance,] for the whole expenses which may become due and payable in respect of the letter of request to the court or tribunal obtaining the evidence and to any witness who may be examined for the purpose; and he shall consign into court such sum in respect of such expenses as the sheriff thinks fit.

(5) Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory—

(a) where English is an official language, or

(b) in relation to which the sheriff clerk certifies that no translation is required,

then the applicant shall, before the issue of the letter of request, lodge in process a translation of that letter and any interrogatories and cross-interrogatories into the official language of that court or tribunal.

(6) The letter of request when issued, any interrogatories and cross-interrogatories adjusted as required by rule 28.11 and the translations (if any), shall be forwarded by the sheriff clerk to the Foreign and Commonwealth Office or to such person and in such manner as the sheriff may direct.

[F23 (7) This rule does not apply to any request for the taking of evidence under Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.]

Textual Amendments

F18 Words in Sch. 1 rule 28.14(1) substituted (1.1.2004) by Act of Sederunt (Taking of Evidence in the European Community) 2003 (S.S.I. 2003/601), art. 4(2)(a)

F19 Rule 28.14(2)(a): a comma is substituted for the semi-colon at the end (1.11.1996) by S.I. 1996/2445, para. 3(38)(a)(i)

F20 Rule 28.14(2)(b): a comma is substituted for the full-stop at the end (1.11.1996) by S.I. 1996/2445, para. 3(38)(a)(ii)

F21 Rule 28.14(2)(c)-(e) inserted (1.11.1996) by S.I. 1996/2445, para. 3(38)(a)(iii)

F22 Words in rule 28.14(4) inserted (1.11.1996) by S.I. 1996/2445, para. 3(38)(b)

F23 Sch. 1 rule 28.14(7) inserted (1.1.2004) by Act of Sederunt (Taking of Evidence in the European Community) 2003 (S.S.I. 2003/601), art. 4(2)(b)

Taking of evidence in the European Community S

[F24 28.14A. (1) This rule applies to any request–

(a) for the competent court of another Member State to take evidence under Article 1.1(a) of the Council Regulation; or

(b) that the court shall take evidence directly in another Member State under Article 1.1(b) of the Council Regulation.

(2) An application for a request under paragraph (1) shall be made by minute in Form G16, together with the proposed request in form A or I (as the case may be) in the Annex to the Council Regulation.

(3) In this rule, “the Council Regulation” means Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.]

Textual Amendments

F24 Sch. 1 rule 28.14A inserted (1.1.2004) by Act of Sederunt (Taking of Evidence in the European Community) 2003 (S.S.I. 2003/601), rule 4(3)

Citation of witnesses and havers S

28.15. The following rules shall apply to the citation of a witness or haver to a commission under this Chapter as they apply to the citation of a witness for a proof:—

• rule 29.7 (citation of witnesses), except paragraph (4),

• rule 29.9 (second diligence against a witness),

• rule 29.10 (failure of witness to attend).