Bridgefoot Building Contracts Limited v James Michie and others ? Dundee Sheriff Court, 9 April 2009

The Appellants/Defenders appealed against the Sheriff's decision to grant commission and diligence in terms of a Summary Application brought under Section 1(1) of the Administration of Justice (Scotland) Act 1972 (“the 1972 Act”) for recovery of documents held by or on behalf of the Appellants. The application related to documents relevant to proceedings which might be brought, rather than an existing action. The Appellants appealed on three grounds. They contended that the application was incompetent. They challenged the Sheriff's interlocutor by reference to the merits of the application. Finally, they claimed that the Sheriff's interlocutor was not in proper form. On the first ground, reference was made to Rule 3.1.2 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals Etc Rules 1999 (“The 1999 Rules”). This Rule provides that an application for an order under Section 1(1) of the 1972 Act should be made by Summary Application where the proceedings in respect of which the application is made have not been raised. In terms of Rule 3.1.2 (2), the Summary Application shall contain “the facts which give rise to the Applicant's belief that, were the Order not to be granted, the items listed, or any of them, would cease to be available for the purposes of s1 of the Act.” It was accepted that, in the present case, no such facts were averred. The Appellants argued that, on that basis, the application was incompetent. The Respondents contended that the provisions of Rule 3.1. 2(2)(c) only applied to applications for an order for commission and diligence which were sought ex parte before service of the application (a “dawn raid” situation). It was suggested that the rule requiring such averments had been introduced to protect the defender's human rights. In a case like this, however, where the Defenders had advance notice of the application and an opportunity to be heard before any order was made, the same human rights considerations did not arise. The Sheriff Principal concluded that, while Rule 3.1.2. (2) (c) was apparently of general application, when looked at in the context of the 1999 Rules, that Rule only applied to applications for an order for commission and diligence before service of the application. As regards the merits of the application, it was clear from the authorities that the Petitioners had to show that proceedings were likely to be brought and that they had a prima facie or stateable case. There was no requirement, however, that they should make full averments to meet the usual tests of relevancy and specification. In assessing whether a prima facie case existed, the Sheriff should take into account any defence offered against it. The Sheriff at first instance had had no hesitation in concluding that there was an intelligible prima facia case. The Respondents argued that the Sheriff had not given proper weight to their representations in response to the averments in the application and also that he had been wrong to conclude that the Petitioners had made out an intelligible prima facie case. The Sheriff Principal considered that the Sheriff had been correct. He refused the Appeal in respect of the first two grounds and assigned a further Diet in respect of the final ground.