Narden Services Ltd v Inverness Retail & Business Park Ltd & Ors [2008] ScotCS CSIH_14 (12 February 2008)

Narden Services Ltd v Inverness Retail & Business Park Ltd & Ors [2008] ScotCS CSIH_14 (12 February 2008)

The court refused the reclaiming motion, holding that an ex parte hearing or appointment of a special advocate would contravene principles of natural justice and the right to adversarial process. The judge should determine confidentiality and legal professional privilege issues, possibly with a Commissioner, but both parties must be represented at hearings concerning document recovery and lodging.

Citation
[2008] ScotCS CSIH_14
Parties
Petitioner and Respondent: Narden Services Limited; Respondents and Reclaimers: Inverness Retail and Business Park Limited and Others; Respondents: Third and Fourth Respondents
Jurisdiction
Scotland
Judgment Date
12 February 2008
Procedural Posture
Petition for Rectification / Reclaiming Motion on Interlocutory Opinion
Outcome
Reclaiming motion refused; continued for determination of expenses.
Legal Topics
Confidentiality of Documents, Legal Professional Privilege, Adversarial Process, Natural Justice, Human Rights Act 1998, European Convention on Human Rights
Civil Procedure Human Rights Legal Professional Privilege Confidentiality of Documents Adversarial Process Natural Justice Human Rights Act 1998 European Convention on Human Rights

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Parties

Narden Services Limited

Petitioner and Respondent

Inverness Retail and Business Park Limited and Others

Respondents and Reclaimers

Third and Fourth Respondents

Respondents

Procedural Posture

Petition for Rectification / Reclaiming Motion on Interlocutory Opinion

Legal Issues

  1. 1 Whether the procedure adopted adequately safeguards legal professional privilege in respect of confidential documents
  2. 2 Whether an ex parte hearing or appointment of a special advocate is appropriate for resolving confidentiality claims
  3. 3 Interaction between Article 6 and Article 8 ECHR in the context of legal professional privilege

Ratio Decidendi

The court refused the reclaiming motion, holding that an ex parte hearing or appointment of a special advocate would contravene principles of natural justice and the right to adversarial process. The judge should determine confidentiality and legal professional privilege issues, possibly with a Commissioner, but both parties must be represented at hearings concerning document recovery and lodging.

Court Disposition

Reclaiming motion refused; continued for determination of expenses.

Orders

  • Adherence to Lord Ordinary's interlocutor; procedures recommended for handling EY and PW documents as outlined in judgment.