About this case:

• Citation:
  [2024] NIKB 55
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge Adrian Colton QC

Delivering judgment for the High Court, Mr Justice Adrian Colton determined that as the Judicature (Northern Ireland) Act 1978 was more relevant to the procurement of the attendance of witnesses as opposed to the provision of documents, the correct procedure for requesting documents from Police Scotland and the Prosecutor Fiscal’s Office was to issue letters of request to the Court of Session in Scotland pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975.

Mr Conor Cleland (instructed by JMK Solicitors) appeared for the plaintiff, and Mr Christopher Ringland (instructed by Murphy & O’Rawe Solicitors) appeared for the defendant.

Background

On 7 November 2016, the plaintiff was driving a tractor with an attached trailer in the course of his employment with the defendant. The trailer had been loaded with recycling waste at a premises operated by South Ayrshire Council. As the vehicle proceeded around a roundabout, the tractor and trailer fell over, causing the plaintiff to suffer personal injuries and other loss and damage.

The incident was investigated by Police Scotland. On 31 July 2019, the defendant’s solicitor spoke to the investigating officer, who believed that the plaintiff was unsuccessfully prosecuted for driving offences arising out of the incident.

The defendant’s solicitor sought documentation pertaining to the investigation and prosecution from Police Scotland and the Procurator Fiscal’s Office. Having received incomplete documentation, on 21 September 2022 the defendant’s solicitor sought certain documentation from the Prosecutor Fiscal’s Office under the Freedom of Information (Scotland) Act 2002.

The Prosecutor Fiscal’s Office responded noting that a court order would be required before it could release the documentation sought, including the full police report and witness statements.

Accordingly, the defendant applied to the High Court for an order providing that ‘letters of request’ be forwarded by the High Court to the Court of Session in Scotland seeking orders for discovery from Police Scotland and the Prosecutor Fiscal’s Office.

The High Court

Mr Justice Colton considered that the application raised an interesting issue as to the correct procedure to obtain the information sought.

The defendant relied upon Order 70 of the Rules of the Court of Judicature (Northern Ireland) 1980, which sets out the procedure for an application under the Evidence (Proceedings in Other Jurisdictions) Act 1975.

The defendant also relied upon s.2 of the 1975 Act, which states:

Mr Justice Colton queried whether the appropriate procedure was instead to be found in s.67 of the Judicature (Northern Ireland) Act 1978, which provides for a writ of subpoena ad testificandum or a writ of subpoena duces tecum.

Having considered the White Book on Supreme Court Practice, 1999 Ed., Mr Justice Colton cited the authors’ opinion that the 1975 Act and Order 70 together provided a comprehensive and self-contained code for obtaining evidence in England for use in proceedings in foreign courts where the assistance of the High Court is invoked, with the judge substituting “Scotland” in place of “England”.

Form of Request

Expressing that the provisions under the 1978 Act were more relevant to the summoning of witnesses as opposed to the provision of documents, the judge considered the form of a such request for documents by analogy with the Hague Convention.

Mr Justice Colton determined that a letter of request for the provision of documents should specify:

Conclusion

Accordingly, the High Court was satisfied that it could issue a request to the Court of Session under the 1975 Act.

Richard Lynch v Regen Waste Limited [2024] NIKB 55