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SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBUGH
IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT
[2025] SC EDIN 21
PIC-PN6227/24
NOTE OF SHERIFF K J CAMPBELL KC
in the cause
LYNSEY KILPATRICK
Pursuer
against
EUI LIMITED
Defender
Pursuer: McGowan; Digby Brown LLP, solicitors, Glasgow
Defender: Smith; DWP LLP, solicitors, Edinburgh
EDINBURGH, 8 April 2025
Introductory
[1]
On 28 February 2025, I heard and determined the pursuer's opposed motion for
commission and diligence in terms of a Specification of Documents (number 12 of process).
The haver to be cited was the defender. The defender is a company incorporated furth of
Scotland, with its registered office in Cardiff. Some weeks later, agents requested I provide
a brief note as, it was suggested, such would provide beneficial procedural guidance for
agents appearing regularly in the National Personal Injury Court. As I am aware of a
number of other recent cases in this court where a similar issue to that in the present case
has arisen, I am content to do so.
[2]
In the course of argument, I was addressed on an issue of competency as well as on
the merits of the motion. The purpose of providing this note is to give the reasons for my
2
decision on the question of competency; the issues arising on the merits are specific to the
circumstances of this particular claim, and with the exception of one point, I need not touch
on them in this note.
Submissions
[3]
The pursuer's motion was for commission and diligence in standard terms. The
Specification of Documents was in the following terms:
"1.
All accounts, receipts, estimates, tenders, photographs and other similar
documents by or on behalf of EUI Limited, Ty Admiral, David Street, Cardiff,
Caerdydd, CF10 2EH relative to any repairs carried out for or on behalf of the
pursuer on vehicle registration LY11 ESY referred to on record relative to any
damage sustained on about 26/10/2022 (Soc.4).
2.
All accounts, receipts, estimates, tenders, photographs and other similar
documents by or on behalf of EUI Limited, Ty Admiral, David Street, Cardiff,
Caerdydd, CF10 2EH relative to any repairs carried out for or on behalf of the
defender's insured on vehicle registration SD07 JUH referred to on record relative to
any damage sustained on about 26/10/2022 (Soc.4).
3.
All call recordings, transcripts, reports, memoranda and other written
communications kept by or on behalf of EUI Limited, Ty Admiral, David Street,
Cardiff, Caerdydd, CF10 2EH showing or tending to show the nature, content and
extent of any telephone calls or other written communication made to them in the
period from 26/10/2022 to date by the pursuer regarding the accident on 26/10/2022
(Soc.4).
4.
All call recordings, transcripts, reports, memoranda and other written
communications kept by or on behalf of EUI Limited, Ty Admiral, David Street,
Cardiff, Caerdydd, CF10 2EH showing or tending to show the nature, content and
extent of any telephone calls or other written communication made to them in the
period from 26/10/2022 to date by the defender's insured, Marcin Puzio regarding
the accident on 26/10/2022 (Soc.4)."
[4]
For the pursuer, Mr McGowan explained that the issue arose because the named
haver is a legal entity registered furth of Scotland. The haver is also the defender in the
action. Mr McGowan suggested that the position in relation to the court's jurisdiction was a
grey area; the pursuer's submission was that it would be unfair if a party subject to the
3
jurisdiction of the court for the purposes of the action generally was not also subject to the
jurisdiction of the court in relation to recovery of documents. For example, The
Administration of justice (Scotland) Act 1972, section 1 contained no such jurisdictional
limit. The pursuer's position was that the general position whereby a party would require
to have resort to a letter of request to recover documents in the hands of an entity in another
jurisdiction did not necessarily envisage the situation where the haver was another party to
the action. In any event the defender, as haver, could consent to commission and diligence.
The pursuer submitted there was no good reason why the defender should not do so.
Mr McGowan then addressed me on the merits of the application.
[5]
On behalf of the defender, Ms Smith submitted that the defender is a company
registered in England and Wales. The proper procedure was therefore to rely on the
Evidence (Proceedings in Other Jurisdictions) Act 1975. It may be possible to use the
optional procedure for commission and diligence i such circumstances, however a response
on the part of the haver would be voluntary and could not be enforced other than by means
of a letter of request. There was a further issue in the circumstances of this case which was
that in respect of calls 1 and 3, the defender is the insurer of the pursuer and in respect of
calls 2 and 4 the defender is the insurer of the defender. This was a highly unusual situation
and entirely coincidental. Nonetheless, the defender was in effect a party to the action and a
third party haver at the same time. It was submitted that situation was not discussed in
Macphail Sheriff Court Practice at paragraph 15.84 nor in OCR 28.14 which were referred to in
the pursuer's written submissions. Ms Smith then addressed me on the merits of the
application.
4
Discussion and decision
[6]
I decided the question of competency in the pursuer's favour. In my view, where a
person natural or legal which is domiciled other than in Scotland is a party to proceedings
before the court in Scotland, a motion for commission and diligence in terms of a
specification of documents can competently be granted against that party.
[7]
The starting point is that the person (natural or legal) is subject to the jurisdiction of
the court on some proper legal basis, in this case as motor insurer pursuant to Regulation 3
of the European Communities (Right against Insurers) Regulations 2002. The defender is
bound to engage with the court process in this jurisdiction and is bound to comply with
orders of this court for the management of the action, for example the various steps in the
timetable issued in terms of OCR36.G1, specific orders regarding the lodging of list of
witnesses and productions and, ultimately, the conduct of any proof. Likewise, any decree
and any award of expenses made by this court is enforceable against such a party. In some
circumstances, the court may also make more detailed and specific case management orders
in relation to personal injuries actions, for example following a hearing under OCR 36.G1(3),
following a hearing under OCR 36.G1(7), or following a hearing under OCR 36A.9. There
are equivalent provisions in respect of certain other specialised forms of procedure; for
example, in commercial actions, in terms of OCR 40.12, particularly OCR 40.12(3)(d) and (e),
and in terms of OCR 33.34(4) where financial provision is craved in a family action.
[8]
Against that background, in my view it would be very strange indeed for a person
natural or legal to be subject to the court's jurisdiction for those purposes, but not to be
subject to the court's jurisdiction for the purposes of an order for the production of
documents in terms of a specification of documents. In my opinion, to hold otherwise
would be a triumph of form over substance. Reference was made in submissions to
5
Macphail Sheriff Court Practice paragraph 15.84. In my view, that passage does not assist
either side of the argument. The discussion seems to me focussed on havers who are not
also parties to the action. There is certainly no distinct discussion of parties as havers.
[9]
As will be apparent the reasons for holding the application competent are confined
to the circumstances where the haver is a party to the action; they do not extend to a third
party entirely unconnected with the proceedings. In this case there was a slightly unusual
feature in that the defender presented as having both of those features because, somewhat
unusually, the defender was the motor insurer of the pursuer and the defending driver. In
those circumstances, and in those circumstances only, I was prepared to grant the calls of the
specification in which the defender was, technically, a third party haver. In circumstances
where a haver who or which is furth of Scotland and is completely unconnected with the
proceedings, it will be necessary for parties to proceed by means of a letter of request in
terms of OCR28.14 or OCR 28.14A in order to recover documents for use in proceedings.
[10]
Having regard to the basis on which the request for this note was made, I have not
thought it necessary to set out the arguments nor my reasons in relation to the merits of the
application. However, having heard parties' submissions, I granted the motion for
commission and diligence.
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