A specification of documents is a formal request made during a court case to obtain a list of documents from another party. This request details the documents needed and identifies who holds them. It can be served on parties involved in the case or third parties.
If you'd like to find out more about specifications of documents, please see our blog post here.
What is commission and diligence?
Commission and diligence is a legal procedure used in Scottish courts to recover evidence, typically documents, that are relevant to a case.
The main purpose of commission and diligence is to ensure that all relevant documents and evidence are available for the court to consider. This process helps in gathering evidence that might be held by another party to the action or a third party.
The terms commission and diligence have historical roots in Scottish legal practice. The commission is essentially a judicial warrant that authorises the commissioner (the person appointed to hear evidence) to act. The commissioner is responsible for overseeing the process, ensuring that evidence is gathered and presented fairly.
How do I commence commission and diligence?
The application process involves making:
- A motion for commission and diligence - A party seeking to recover documents must file a motion with the court. This motion must demonstrate that the request is reasonable and relevant to the case.
- Specification of documents - Along with the motion, a specification of documents must be lodged. This document lists the specific documents sought and details who holds them.
The court reviews the motion and the specification of documents to decide whether to grant the order. If approved, the court issues an order for the recovery of the documents listed in the specification.
The motion must be intimated to all other parties involved in the action who are entitled to oppose this. If the motion is for recovery of evidence held by the UK or Scottish Governments, the motion must also be intimated to the Advocate General for Scotland who may also oppose this.
What are the grounds to oppose commission and diligence?
Opposing a motion for commission and diligence in Scottish courts can be based on several grounds, however there are no set rules as to when commission and diligence can be opposed. Ultimately, the commission and diligence needs to be justified in the context of the written court case.
If the evidence sought cannot and is not relevant to the written case, then this is a "fishing" diligence and should not be allowed by the court.
A court may also allow an opposition on the grounds it is impractical. For example, the proposed specification may be too wide and result in a large amount of irrelevant documents being provided.
Another example is if the documents sought have already been provided at an earlier stage, making the commission and diligence unnecessary.
To oppose a motion for commission and diligence, the opposing party must lodge a written opposition with the court, outlining the grounds for their objection. The court will then consider these objections and decide whether to grant or deny the motion.
What happens if commission and diligence is granted?
Once the order is granted, the party seeking the documents can serve the order on the haver (the person or entity holding the documents). The haver is then required to produce the documents as specified, usually 7-14 days.
If there is no response, the applying party may decide to fix a commission.
What is a commission?
A commission refers to a hearing where the haver (the person holding the documents) is required to answer questions about the whereabouts of the documents. The hearing is chaired by a "commissioner", usually a solicitor or an advocate not involved in the case. The commissioner oversees the process to ensure it is conducted fairly and efficiently..
Who attends the commission?
Typically, the following people attend:
- The commissioner
- A shorthand writer
- The solicitor or advocate for the applying party, and
- The solicitor or advocate for the opposing party.
What happens at the commission?
At the hearing, the haver will give evidence under oath. As with any evidence in a court action, it is important that it is full and accurate.
A commission may take place over several days and involve multiple havers being questioned.
The haver will be asked questions by the applying party and the commissioner as to what searches have taken place and what documents have been uncovered. The haver does not need to know what the contents of the documents are, just what steps have been taken to find them.
Following the hearing the commissioner prepares a report which sets out what the haver's evidence was and where the documents are. That report is lodged at Court.
Where does the commission take place?
If it is a Court of Session action, it will take place in one of the spare court rooms in the Court of Session.
For Sheriff Court actions, the commissioner will ordinarily arrange the venue and advise the parties.
How do you avoid a commission taking place?
Commissions can be time consuming and expensive. If commission and diligence has been granted, the most straightforward way to avoid it is to simply locate and provide the documents in early course. If that is not possible, it is important to keep in mind that if you are cited to attend court as a haver, you may be entitled to fees for the time spent locating and providing the documents, along with the cost of attending court.
If you or your business has been cited to attend a commission, please contact the Litigation team at MFMac for advice and support.
