In most Court actions in Scotland, there is no general obligation to disclose evidence as there is in England. Instead, where a party to an action considers relevant documents are held by another party to the action or a third party, they must apply to the Court for approval of the list of the documents (known as a "Specification of Documents") they wish to recover. If approved, the Court will grant an order for the recovery of the documents listed in the Specification (known as "Commission and Diligence").
Often, parties who hold documents that fall within the Specification of Documents (who are known as "havers") will claim that the documents, or part of them, are confidential and should not be disclosed to the party seeking them. For example, it might be claimed by another party that although falling within the Specification of Document, certain documents were prepared in contemplation of litigation and thus attract litigation privilege. The consequence of such privilege is that the documents are protected from disclosure.
Usually, the party who has obtained Commission and Diligence will – at least in the first instance - use a procedure whereby the Court order is served on the haver and the haver is invited to send the documents to the party voluntarily. But what is the correct procedure where confidentiality is asserted over documents that might fall within the Specification of Documents?
The full, unredacted documents must be sent to the Court, rather than the party who obtained the order. The documents should be sent in a sealed envelope, marked "confidential". The party who has sought recovery of the documents must then apply to the Court for an order to "open up" the confidential envelope. It is then for the Court to rule on the confidentiality of the documents in the envelope. If the haver is not a party to the action, they are nevertheless entitled to be heard when the Court is deciding whether or not the envelope should be opened. The Court will then determine what documents should be produced in light of all parties' submissions.
Ultimately, it is for the Court to decide what is, or is not, produced or redacted. A haver must not unilaterally decide that information within the documentation is confidential and seek to redact it before lodging with the Court. In a recent note in the matter of ZY Council, a Sheriff at Glasgow observed that doing so might amount to a contempt of Court. Although in that particular case the Sheriff determined that the circumstances did not amount to a contempt, it is easy to imagine different circumstances where a haver does wilfully redact documents before lodging them in response to a Specification of Document amounting to a contempt of Court. Contempt of Court is a quasi-criminal offence which can have serious consequences for the offender.
A haver who receives Court forms which seek recovery of documents following the grant of Commission and Diligence, and who considers that the documents requested are confidential and need protecting, should take advice before responding. There is normally a seven-day deadline for a response, so advice should be sought quickly. Consideration can then be given as to whether the documents are likely to attract confidentiality; whether they should be lodged in a confidential envelope; and whether any motion to open the envelope should be opposed. Whilst it might be tempting to take different steps to protect what is considered confidential information, doing so may well find you in contempt of Court.