JUDGMENT BY SHERIFF PRINCIPAL C.A.L. SCOTT IN THE CAUSE ALEC CAIRNEY AGAINST GLASGOW CITY COUNCIL
2014SCGLA24
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
B283/14
JUDGMENT
of
SHERIFF PRINCIPAL C A L SCOTT, QC
in the cause
Alec Cairney
Pursuer
against
Glasgow City Council
Defenders
Glasgow, 9 July 2014.
The sheriff principal, having resumed consideration of the appeal, adheres to the sheriff’s interlocutor dated 14 March 2014 and refuses the appeal; finds the defenders liable to the pursuer in the expenses occasioned by the appeal procedure; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon.
NOTE:-
Defenders’ submissions
[1] In support of the grounds of appeal, counsel for the defenders argued that the sheriff had erred in granting an application for an order for recovery of documents in terms of section 1(1) of the Administration of Justice (Scotland) Act 1972. Whilst the grounds of appeal run to seven paragraphs, in essence, it was submitted that the application ought to have been deemed incompetent because the terms of the Act of Sederunt (Summary Applications, Statutory Applications & Appeals Etc Rules) 1999 had not been complied with.
[2] Rule 3.1.2(2)(c) provides that:
“The summary application shall contain the facts which give rise to the applicant’s belief that, were the order not to be granted, the listed items, or any of them, would cease to be available for the purposes of section 1 of the Act.”
Rule 3.1.3(a) states that:
“The applicant shall lodge with the summary application an affidavit supporting the averments in the summary application”.
These were the provisions which counsel for the defenders claimed the pursuer had failed to meet, which failure, thereby undermined the competency of the application.
[3] With emphasis being laid upon rule 3.1.2(2)(c), counsel for the defenders maintained that the pursuer had not complied with its terms because, as narrated in ground of appeal 5, the defenders were, as counsel put it, perfectly willing to hand over the documents.
[4] Reference was made to paragraph [8] in the sheriff’s note. Counsel for the defenders submitted that the sheriff had misapplied the decision of an Extra Division of the Inner House in Manning v Manning 2010 SC 48. In that case, the sheriff at first instance had refused an application which did not meet the requirements of rules 3.1.2 and 3.1.3. Counsel for the defenders contended that the Extra Division upheld the sheriff’s decision for reasons which themselves suggested that the sheriff in the present case had erred.
Pursuer’s submissions
[5] The solicitor for the pursuer stressed that a “dawn raid” type order was not being sought. Accordingly, as far as rule 3.1.2(2)(c) was concerned, there was nothing which might usefully or relevantly require to be said. The cessation of availability of items listed in the application was not an issue. The court in Manning had acknowledged that certain of the provisions in the rules were appropriate to dawn raid applications and might, therefore, have no function in certain contexts.
[6] Whilst Manning determined that a sheriff was not at liberty to “disapply” the rules, the pursuer’s solicitor submitted that the court had “solved the problem” by indicating that the opening words of rule 3.1.2(2) should be read to mean, “the summary application shall contain, as appropriate…” or “as the circumstances require…” It was contended on behalf of the pursuer that the sheriff in the present application had adopted that approach all as set out in paragraph [8] of his note.
[7] The solicitor for the pursuer also pointed out that, in contrast to the appellant’s position in Manning, the pursuer in the present case did not argue that the rules had no application. Moreover, he maintained that were the argument favoured by the defenders to prevail, the outcome would involve summary applications brought under the 1972 Act being rendered incompetent where an applicant was, even for good reason, unable to aver that a risk of destruction existed to meet the precise terms of rule 3.1.2(2)(c).
Decision
[8] In my opinion, the sheriff’s decision was correct. In particular, the sheriff followed the approach desiderated by the Extra Division in Manning at paragraph [22] of the judgment. The defenders’ reference to the “availability” of the documentation sought via the Environmental Information (Scotland) Regulations 2004 (“the EIR”) is primarily associated with their core argument on appeal, viz. that the pursuer had failed to comply with the rules (ie where the material sought by the pursuer was said to be available it followed that the pursuer could not meet the terms of rule 3.1.2(2)(c). See ground of appeal 6).
[9] Where the opening words of rule 3.1.2(2) are read as explicitly set out in Manning, rule 3.1.2(2)(c) has no function in these proceedings with the consequence that compliance with its terms is rendered unnecessary. In the circumstances of the present case, the pursuer need not aver facts regarding cessation of availability under rule 3.1.2(2)(c). Therefore, it also follows that the affidavit lodged by way of rule 3.1.3(a) need not contain that sort of factual material.
[10] I do not accept counsel for the defenders’ proposition to the effect that in upholding the sheriff’s decision I would be reaching the opposite decision from that reached in Manning in circumstances which are effectively identical. Whilst the guidance offered up by the Extra Division regarding the manner in which the terms of rule 3.1.2(2) are to be understood and applied is, to my mind, clearly worthy of adoption, the decision in the case itself falls to be distinguished. In Manning, it was conceded on behalf of the appellant that the requirements of rule 3.1.2 and 3.1.3 had not been complied with. There was no such concession in the present appeal, indeed, the contrary was asserted.
[11] The appellant’s argument in Manning was straightforward. Senior counsel adhered to the line that rules 3.1.2 and 3.1.3 simply did not apply. The Extra Division decided that they did apply, albeit subject to the observations to be found at paragraph [22] aforementioned. Consequently, in light of the argument presented, the concession made on behalf of the appellant and the court’s finding that the rules were applicable, the Extra Division had no option but to adhere to the decision of the sheriff at first instance. However, as, I trust, can be seen, the situation in the present appeal is materially different.
[12] Accordingly, I have concluded that the appeal falls to be refused. However, I require to make further mention of the defenders’ reliance upon the EIR and their stated ability to make the material sought available, albeit at a cost. Firstly, under reference to paragraph [7] in the sheriff’s note, it should be noted that no challenge to the sheriff’s approach regarding the existence of another “remedy” was presented on appeal. Nevertheless, for the avoidance of doubt, I would merely observe that, in my own view, the existence per se of a separate procedure which might serve to facilitate recovery of material sought by a potential litigant ought not to preclude the use of the 1972 Act procedure.
[13] Secondly, it seems to me that the concept of availability of the information sought, as characterised by the defenders, particularly, in ground of appeal 6, is probably a bit of red herring. Such availability is not unconditional; it is associated with payment of a fee. (There was no suggestion by the defenders in the present appeal that the fee would subsequently be recoverable in the context of future litigation). Therefore, I do not consider that it should avail the defenders to point to the EIR procedure and to contend that its existence constitutes a hurdle to the competency of the pursuer’s application.
[14] In the whole circumstances, I have adhered to the sheriff’s interlocutor of 14 March 2014. The appeal has been unsuccessful. I have found the defenders liable to the pursuer in the expenses of the appeal.