Within court proceedings, a party has no right to use information or documents recovered in those proceedings for any other purposes. A party can only use the material in the proceedings for which it was disclosed (unless it has come into the public domain). If a party does so without permission, they risk being held in contempt of court. More recently some high-profile cases have discussed and allowed a loosening of this restriction.

Iomega Minute

The remedy available to overcome this restriction is to ask the court to extend the purposes to which the material can be put by submitting a petition to the "Nobile Officium" of the High Court of Justiciary / Court of Session. The Nobile Officium allows the court to exercise its equitable discretion to modify the common law or to grant relief in a situation where no other provision exists under the law. Such an application is made by lodging what is now referred to as an "Iomega Minute", following Lord President Rodger's statement of the underlying principles in Iomega Corporation v Myrica (UK) Ltd 1998 SC 636. When the court is considering whether to grant permission and to exercise its discretion, it will have regard principally to whether that would be in the interests of justice. In the event it does grant the application, then the court can apply whatever conditions it deems appropriate in each individual circumstance.

Procedure

First, parties must lodge the petition and any productions with the Clerks of the Court of Session or Justiciary ("the Clerks") and seek a first order for service on the named respondents. Although there is no prescribed form for the petition, it must set out the reasons for the application, make reference to the productions lodged and set out the person or persons on whom the petition is sought to be served.

Once a first order is granted, the Clerks will provide the petitioner with a certified copy of the petition, and a warrant granting the first order for service. The certified copy and warrant should then be served on all respondents. Response times to lodge any opposition to the petition will be specified in the warrant itself. Further details about these stages of the procedure are found within the Act of Adjournal (Criminal Procedure Rules) 1996/513 Schedule 2 Criminal Procedure Rules 1996 para 29A.1 and the Act of Sederunt (Rules of the Court of Session 1994) 1994/1443.

Intimation to all respondents may be made by serving a copy of the petition on them personally via Messengers at Arms (or by agreement on their solicitor), or by post with proof of delivery. A copy of the execution should be lodged with the Clerks as soon as practicable after service has been effected. Further details on intimation can be found within the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 asp 6 (Scottish Act) and the Act of Sederunt (Rules of the Court of Session 1994) 1994/1443.

The details of the petition hearing will also be contained within the warrant for service. In advance of the hearing, the petitioner and/or respondents can lodge written submissions with the court. If there is no opposition to the petition, the petitioner will be heard by the court who will then use their discretion to decide whether to grant the petition.

Case example - Rangers: Whitehouse v Chief Constable & Lord Advocate [2021] CSOH 33

The former administrator of Rangers Football Club, David Whitehouse, was charged with fraud in relation to the administration and sale of the club. All charges were dismissed in 2016, after which he raised a civil action against Police Scotland and the Crown for breaches of his Human Rights, malicious prosecution and wrongful arrest. During investigations carried out as part of his civil action, Mr Whitehouse recovered many documents which had formed part of the potential evidence in the underlying criminal action against him.

Ultimately, the civil claim was settled, but Mr Whitehouse still wished to issue a criminal complaint against those responsible for the prosecution. Some of the documents on which he sought to rely in advancing his complaint were again related to the dismissed criminal proceedings which had been recovered for the civil action. These documents were therefore subject to the implied undertaking that they would not be used for any purpose other than that civil action, rendering him unable to refer to them in his complaint.

In an effort to rectify that, Mr Whitehouse lodged an Iomega Minute to petition the court to extend the purposes to which the material could be put. The court granted the minute, so allowing the materials to be used for this single and limited additional purpose, subject to a number of conditions.

Lawyers should make themselves aware of these rules in order to avoid the risk that they and their clients could be found to be in contempt of court for unauthorised use of documentation recovered in another process for a different purpose. By ensuring they seek the courts permission for such use, they will be better able to protect and advance their clients' interests to the fullest effect.

For more information or advice on issues relating to this article, get in touch with your usual Brodies contact or one of our lawyers listed below.

Contributors

Alan Calvert

Partner

Edward Grundy

Associate