Unlike, in many jurisdictions, in Scotland, there is no automatic disclosure process and no general requirement to disclose evidence unless specifically ordered by the court to do so. This often creates an interesting dynamic where key pieces of evidence don’t make it to trial and are omitted by either party for their own benefit.

This guide provides a quick snapshot of some of the common steps that can be taken to recover evidence in Scotland via the courts.

Pre-action Recovery

• Under Section one of the Administration of Justice (Scotland) Act 1972, an application can be made to the court prior to an action being raised to recover evidence.
• Evidence that can be recovered includes a range of items which commonly includes electronic and hard copy documents, photographs, computer hard drives and witness details.
• For a successful application, you must satisfy the court that:
  1. Proceedings are likely to be brought; and
  2. There is a prima facie, intelligible and stateable case made by the applicant.
• If your concerned that evidence may be lost or destroyed, then you can make an ex parte application known as a "dawn raid". These are similar to search orders or Anton Piller Orders, in England and Wales.
• The Dawn Raid process generally involves an application being drafted to have a commissioner appointed (normally a QC) and a warrant granted to allow the commissioner to enter a certain set of premises, search for and uplift evidence that the applicant wishes to recover.

Recovery Once Proceedings Raised

Documents

• During an action, a party can make an application to the court to request that the other side provide them with certain documents. This is commonly known as a “Specification of Documents”.

• Documents are usually provided by way of an “Optional Procedure” whereby a list of documents that the applicant is seeking is provided to the other side and the documents if they have them, are produced. Documents can also be sought from third parties.

• If documents are not supplied under the Optional Procedure, the applicant can arrange a Commission. This is often only used if the applicant is not satisfied; there has not been full compliance with the order or no adequate reasons for non-compliance have been given.

• At a Commission, the party who has been requested to produce the documents is required to attend and is formally cited. They are then put under oath and are questioned about the documents sought. They can be asked why the documents haven’t been produced, if they know where they may be, or who has them etc. Because the questioning is conducted under oath, any discrepancies that may come to light are subject to the same rules of providing evidence at a trial (proof), and an individual caught lying may be pursued for Perjury.

Witnesses

• In Scotland, the general rule is that if a party wishes to lead evidence of a witness, the witness will need to turn up in person and do so at trial (proof). However, there are some circumstances where the courts will allow the court to go to them and take their evidence separately at a mini hearing arranged to take that witness’s evidence. This is called a Commission for Examination of Witnesses. This is usually only allowed where the witness is resident beyond the courts' jurisdiction, where they are unable to attend due to age, infirmity or sickness or there is a danger that the evidence of the witness may be lost due to them passing away before the trial date.

In Scotland, the recovery of all evidence is underpinned by the principle of “No fishing”. Any evidence sought must be clearly and directly relevant to the applicant's written legal case. A recovery application will not usually be granted where (i) the applicants written case doesn’t relate to the evidence sought; (ii) if their written case is not specific enough to justify the evidence sought; or (iii) if the documents sought are out with the scope of the subject matter of the case.