DAVID JOHN KIRKHAM AGAINST SNEDDON MORRISON, SOLICITORS, LIVINGSTON

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NOTE:

1. The appellant raised a summary cause action against the defenders and respondents who are a firm of solicitors.The appellant seeks delivery of certain files, records and documents held by the respondents in connection with actions pending in the Court of Session (case references CA91/08 and CA30/09).The appellant's further craves relate to implementation of any court order in the event that there is not full compliance and finally the pursuer seeks the expenses of the cause and any diligence arising from the need to implement any order of the court.

    

2. The defenders acted for Mrs Margaret Sneddon who is a party to the Court of Session actions referred to.The defenders did not act for the appellant.The appellant seeks delivery of the files etc by having them transmitted to his own solicitors Messrs McArthur Stewart in Fort William.The appellant asserts that his right to bring an action for delivery derives from an assignation in his favour by Mrs M Sneddon's trustee in bankruptcy.No issue arises, at this stage, with regard to the assignation or the appellant's title to sue.In effect the appellant says he is entitled to the files etc as he, in effect, now "owns" the files there being no lien which the defenders can claim.

    

3. After certain procedure this summary cause action called before the sheriff at a continued first calling and proceeded in the form of a debate.No evidence was led.At that hearing the accountant in bankruptcy was represented.After hearing parties' submissions on the basis in law for the claim the sheriff gave his decision orally.He decided that the action was incompetent and dismissed the action with expenses in favour of the defenders.

    

4. The sheriff appears to take the view that the action is suitable for summary cause procedure as it seeks a decree ad factum praestandum in the sense that the principal crave is one for delivery.However, the sheriff considered that the action was incompetently raised in the sheriff court as there are more appropriate methods open to the appellant to obtain the remedy he seeks.Firstly, he could bring a summary application to obtain the property in terms of section 1 of the Administration of Justice (Scotland) Act 1972.The court has power to order the recovery of property "as to which any question may relevantly rise in existing civil proceedings before that court or in civil proceedings which are likely to be brought".Secondly, the most appropriate vehicle for the recovery of the documents relating to the pending Court of Session actions is by means of a specification of documents lodged in those processes.At paragraph [33] the sheriff concludes:-

   "[33]    For all these reasons I came to the clear conclusion that it is the commission and diligence procedure which should have been followed, and that should have taken place by way of an application to the Inner House.  The present summary cause action was therefore inappropriate to the extent that it was not 'soundly based in law' (to use the words in the interlocutor of 25 July) and therefore had to be seen as being incompetent.  I therefore dismissed the action."

    

    

    

   THE APPEAL

5. The appeal involves a short point. Can the appellant competently raise an action for delivery of documents etc in the Sheriff Court by way of summary cause procedure?The question stated for my opinion is:-
   1. Was I correct in holding that the action ought to be dismissed as incompetent?

       

      SUBMISSIONS for the APPELLANT

6. Mr Cowan appeared for the appellant. His motion is that I answer the question in the stated case in the negative, allowing the appeal, recalling the interlocutor of 1 November 2013 and then to remit the cause to the sheriff in Livingston.

    

7. The appellant's title to sue and claim delivery of the files is predicated on the assignation in his favour granted by the trustee in bankruptcy to Mrs Margaret Sneddon.Mrs Margaret Sneddon is a party to the Court of Session proceedings referred to in the crave. The defenders acted for Mrs Sneddon (and her husband) in the proceedings in the Court of Session.The files and documents which the appellant seeks to recover are the files held by the defenders on behalf of Mrs Margaret Sneddon.

    

8. The first proposition put forward by Mr Cowan is that the solicitors' files are owned by the client (at least in part).Accordingly, Mrs Sneddon's entitlement to the files (or part of the files) held by the defenders on her sequestration then vests in her trustee in bankruptcy.By granting the assignation in favour of the appellant any entitlement of the original client, Mrs Margaret Sneddon, now vests in the appellant.Recovery of these files and documents which he at least in part "owns" is the basis of this action.In support of this proposition I was referred to several authorities Yau v Ogilvie & Co 1985 SLT 91and Swift v T.G. Bannigan & Co 1991 SCLR 604 – a case which focussed on the character of a "precognition" and finally I was referred to Law Society of Scotland Guidance on the Ownership and Destruction of Files said to be based on an opinion from the Dean of Faculty provided to the Law Society in June 2000.

    

9. Of course the issue before the sheriff was the competency of the action.Whether an action for delivery of files, which the pursuer claims ownership of, can competently be brought by summary cause in the Sheriff Court.The defenders contend that the pursuer's remedy if he has one is to bring a summary application in terms of section 1(1) of the Administration of Justice (Scotland) Act 1972.

    

10. I was reminded that the action proceeds on the basis that the pursuer owns the files.The pursuer does not therefore require to satisfy the court as to his purpose in seeking their delivery.An application under the Administration of Justice (Scotland) Act 1972 or recovery by commission and diligence have quite different objectives.They are not based on ownership.It would not be appropriate for a party asserting ownership to make himself subject to the procedural safeguards and conditions required by the 1972 Act.See Iomega Corporation Petitioners v Myrica (UK) Limited 1998 SC 636 and Manning v Manning 2009 SLT 743.

     

11. In terms of section 35(1)(c) of the Sheriff Courts (Scotland) Act 1971 actions ad factum praestandum shall be brought by way of summary cause.In the absence of a crave for payment (in excess of £5,000) the action requires to be brought under this procedure.The sheriff appears to accept that when at paragraph [27] of the stated case he considers the action to be "apparently competent".The sheriff then falls into error by dismissing the action as incompetently brought on account of there being other procedures of which the pursuer could have availed himself.This is irrelevant to the question of competence and misunderstands the basis upon which the action proceeds.Accordingly, I was asked to answer the question of law in the negative and allow the appeal.The pursuer should be entitled to his expenses not only of the appeal but of the hearing and procedure before the sheriff on 1 November 2013.

     

    SUBMISSIONS FOR THE RESPONDENT

12. Mr Davidson for the respondents proposed that I answer the question of law in the affirmative, adhere to the sheriff's interlocutor and refuse the appeal.In the event that I proposed to allow the appeal the matter should be remitted back to the sheriff at Livingston for proof.There remained a live issue raised by the second defender as to the validity of the assignation.

     

13. Mr Davidson questioned whether the cause was strictly an action ad factum praestandum.An action ad factum praestandum relates to moveables or chattels. He doubted whether the action was suitable for the delivery of documents.However, even if the procedure was competent the sheriff correctly took the view that the procedure adopted by the pursuer was so inappropriate as to be incompetent or incompetently brought.

     

14. Mr Davidson reminded me that certain English authorities had addressed the question of what constitutes "files" in the modern era with electronic messages and such like.The case of Your Response v Data Team Business Media Limited [2014] EWCA Civ 281 was referred to but Mr Davidson did not address me as to the ratio of the decision of the Court of Appeal save to refer to the opinion of Lord Justice Floyd at paragraph 42.

     

15. The respondents adopted the reasoning of the sheriff as being the correct approach standing that the appellant in his pleadings clearly states that the purpose and arguably the sole purpose in seeking delivery of the files is for the purpose of the appeals to the Inner House.In paragraph 10 of the statement of claim the pursuer and appellant states "The actions are currently before the Inner House, Court of Session.It is of significant importance that the pursuer's solicitors obtain possession of the files for the actions as soon as possible."That was the true purpose of the action.Accordingly, the sheriff was entitled to take the view that the appellant's remedy was either recovery by way of commission and diligence or an application under section 1 of the 1972 Act.The question for the opinion of court should be answered in the affirmative, and appeal refused with expenses in favour of the respondent.

     

    DECISION

16. This action proceeds at the instance of the appellant by way of summary cause procedure in the sheriff court for delivery.

     

17. The appellant's claim or crave is:-

     

    1. For an order ordaining the defenders to deliver to the appellant's agent "all files, records and documentation whether in physical, electronic or other form held by the defenders relating to the court of Session actions CA91/08 and 30/09, and without prejudice to the generality of the foregoing to include and then is listed certain specific documents, accounts and files.

        

    2. Failing full delivery within 10 days of such court order for a warrant to officers of court to search for an open lockfast places at the defenders premises.

        

    3. Expenses.

        

18. The statement of claim narrates the pursuer's title to sue for delivery by virtue of an assignation granted by the trustee (in bankruptcy) of Mrs Margaret Sneddon in favour of the pursuer on 30 July 2012.Mrs Margaret Sneddon is a party to the Court of Session actions referred.She, along with her husband, are the pursuers in the original action and the first and second defenders in the subsequent action.The defenders acted for her in the Court of Session proceedings until her sequestration in 2011.The defenders also acted for Mrs Sneddon's husband Andrew Sneddon in the same proceedings.It is said that he has also been sequestrated.It is also narrated that the defenders acted for Glencoe Developments Limited (GDL) whose affairs are central to the Court of Session litigation.The claim details matters relating to fee charging and instructions to counsel.The appellant sets out by way of averment the steps taken by him and his agents to seek recovery of the files informally.The plea in law informs that the action proceeds on the basis that the files are now the joint property of the appellant and the Accountant in Bankruptcy and therefore the appellant is entitled to decree for delivery.

     

19. The action is defended.The defenders state that the appellant has all the documents she is entitled to and there is nothing more to deliver.The appellant has no entitlement to the papers relating to Andrew Sneddon.The defenders make certain averments relating to the Lord Ordinary's opinion as to the appellant's credibility and reliability.They refer to the complaints made by the appellant to the Scottish Legal Complaints Commissioner and the Law Society of Scotland which have been dismissed.The defenders state that these complaints were actionably defamatory.The purported assignation does not confer rights to the solicitors' files and in any event the defenders have implemented all mandates.

     

20. Within the statement of defence at paragraph 13 it is stated:

    "Seperatim, the pursuers crave for delivery and his relative schedule are in any event incompetent.  His competent remedy, if any, is by way of summary application under section 1 of the Administration of Justice (Scotland) Act 1972."

     

21. The true issue between the parties is whether it is competent to seek delivery by way of summary cause proceedings.Section 35 of the Sheriff Courts (Scotland) 1971 defines summary causes.This form of process shall be used for the proceedings set out in section 35(1)(a) to (d).Paragraph (c) refers to actions ad factum praestandum.Such actions are to be brought as summary cause proceedings.An action ad factum praestandum is brought to enforce the performance by the defender of an act other than the payment of money.(Macphail Sheriff Court Practice 21.75).An action for delivery is an action ad factum praestandum.The sheriff considers the nature of the action at paragraphs [23] to [26].In my view, he correctly concludes that the action is ex facie competent.However, the sheriff then states:

    "[27]     Nevertheless, despite the apparent competency of the action I was persuaded by the submissions made by counsel for the first defenders (and adopted by the solicitor for the second defenders) that the action was at the very least inappropriately brought in the sheriff court, and, indeed, was one which could be categorised as incompetently brought."

     

     

                The sheriff then proceeds to explain why he dismissed the action as incompetent.  The sheriff is persuaded by submissions made that the existence of alternative procedures for recovery of documentation rendered incompetent the ex facie competent summary cause proceedings.  The sheriff appears to accept that the appellant had the option of proceeding by way of a summary application or indeed, by motion under section 1(1) of the Administration of Justice (Scotland) Act 1972.  Alternatively he could have availed himself of commission and diligence procedure in the actions pending before the Inner House.

     

22. In my view, the sheriff has fallen into error by dismissing an ex facie competent action simply on the basis that other methods of proceeding were available to the pursuer.The existence of separate or alternative or more expeditious procedure cannot, in my view, justify dismissing as incompetent proceedings which are ex facie competent.That is the short answer to the appeal.

     

23. However, if the arguments advanced on behalf of the defenders, and accepted by the sheriff, are analysed the result is a misunderstanding of the basis upon which the action proceeds and a less than satisfactory appreciation of the purpose of recovery or preservation of documents under the 1972 Act or by commission and diligence.A commission and diligence for the recovery of documents is allowed in order that the court may be put in possession of documents bearing upon the issues of fact which have to be determined by that court.A party may only recover by commission and diligence documents which are relevant to the proceedings before the court.It is difficult to decern what relevance the solicitors' file might have in the dispute about the affairs of GDL.The party seeking commission and diligence requires to give specification of what he seeks to recover and there must be a basis or averment in the pleadings to support that.The court would be faced with a specification of documents calling, in effect, for recovery of the opponent or co-defender's solicitor's file.The same issues of relevancy and confidentiality which feature in the statement of defence, would be raised by the defenders in opposition to the specification of documents.As with proceedings under section 1 of the 1972 Act the basis for recovery of documents or property is that the documents are ordered by the court and are lodged with the court. They do not become the property of any party.

     

24. The case of Iomega Corporation Petitioners v Myrica (UK) Limited 1998 SC 636 considers recovery of documents under section 1 of the 1972 Act.That case is authority that a party who recovers documents under this procedure is subject to an implied obligation or undertaking to the court not to use them or allow them to be used for any other purpose.The party therefore, does not have unfettered access to the documents nor does the party possess the documents.This is contrasted with the present case which, whatever its merits, is based on ownership and seeks delivery. The appellant seeks recovery and delivery of these documents because he has a legal entitlement to the documents.The appellant in this appeal does not seek recovery or disclosure at all nor is his crave for delivery for the purpose solely of the ongoing litigation.Commission and diligence procedure and an application under the 1972 Act proceeds with the objective of recovery and preservation of documents relevant to court proceedings either ongoing or in contemplation.

     

25. In Iomega the Inner House refused the appeal. The Lord Ordinary took the view that it was incompetent for the court to grant the authority which Iomega sought namely, to allow them to use the documents which they sought to recover in jurisdictions furth of Scotland.The Lord President (Lord Rodger) who delivered the opinion of the court considered the two problems which the 1972 Act was designed to remedy.At page 638 he states:-

    "None the less sec 1, which antedated Anton Piller, was actually designed to remedy what was seen to be two problems in the pre-existing law:  it was difficult for a party to obtain commission and diligence to recover documents before the closing of the record and a fortiori it was not possible for a party to obtain an order from the court to recover documents before the proceedings were begun."

     

    The Lord President goes on to say:

     

    "The other matter which it is important to notice is that, while of great significance, sec 1 of the 1972 Act is indeed concerned only to extend the range of situations in which the court may make an order for the production or preservation etc of property.  It has no bearing whatsoever on what happens after that order has been carried out and the items have been handed over to the court.  Once items are in the hands of the court, what is to be done with them is governed by the rules of court and any orders pronounced by the court."

     

    Thus Iomega makes it clear that it is the court who controls the documents and a party who has obtained the documents may not use them for any other purpose than the conduct of the actual or prospective proceedings.  It is not a suitable or even competent method of obtaining control or possession of documents to which a party asserts a right of ownership.

     

26. It is clear from his averments that the appellant considers it to be of significant importance that he obtains the files relating to the actions. He makes no other relevant or specific averment as to why that is so.There is nothing in the statement of claim to link the files with any disputed issue of fact or law to be determined by the Inner House in the other actions.

     

27. Accordingly, as the only issue in this appeal relates to competency I answer the question of law in the negative and allow the appeal.The action shall be remitted back to the sheriff at Livingston.Undoubtedly, other issues of relevancy may arise in this case and further procedure will be required to determine this summary cause.The appellant is entitled to the expenses of the appeal and also of the debate on competency heard by the sheriff in November 2013.

(signed) Mhairi M Stephen