Lynsey Kilpatrick v EUI LTD (National Personal Injury Court) [2025] SCEDIN 21 (08 April 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish Sheriff Court Decisions You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Lynsey Kilpatrick v EUI LTD (National Personal Injury Court) [2025] SCEDIN 21 (08 April 2025) URL: https://www.bailii.org/scot/cases/ScotSC/2025/2025scedin21.html Cite as: [2025] SCEDIN 21 [ New search ] [ Printable PDF version ] [ Help ] SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBUGH IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT [2025] SC EDIN 21 PIC-PN6227/24 NOTE OF SHERIFF K J CAMPBELL KC in the cause LYNSEY KILPATRICK Pursuer against EUI LIMITED Defender Pursuer: McGowan; Digby Brown LLP, solicitors, Glasgow Defender: Smith; DWP LLP, solicitors, Edinburgh EDINBURGH, 8 April 2025 Introductory [1] On 28 February 2025, I heard and determined the pursuer's opposed motion for commission and diligence in terms of a Specification of Documents (number 12 of process). The haver to be cited was the defender. The defender is a company incorporated furth of Scotland, with its registered office in Cardiff. Some weeks later, agents requested I provide a brief note as, it was suggested, such would provide beneficial procedural guidance for agents appearing regularly in the National Personal Injury Court. As I am aware of a number of other recent cases in this court where a similar issue to that in the present case has arisen, I am content to do so. [2] In the course of argument, I was addressed on an issue of competency as well as on the merits of the motion. The purpose of providing this note is to give the reasons for my decision on the question of competency; the issues arising on the merits are specific to the circumstances of this particular claim, and with the exception of one point, I need not touch on them in this note. Submissions [3] The pursuer's motion was for commission and diligence in standard terms. The Specification of Documents was in the following terms: "1. All accounts, receipts, estimates, tenders, photographs and other similar documents by or on behalf of EUI Limited, Ty Admiral, David Street, Cardiff, Caerdydd, CF10 2EH relative to any repairs carried out for or on behalf of the pursuer on vehicle registration LY11 ESY referred to on record relative to any damage sustained on about 26/10/2022 (Soc.4). 2. All accounts, receipts, estimates, tenders, photographs and other similar documents by or on behalf of EUI Limited, Ty Admiral, David Street, Cardiff, Caerdydd, CF10 2EH relative to any repairs carried out for or on behalf of the defender's insured on vehicle registration SD07 JUH referred to on record relative to any damage sustained on about 26/10/2022 (Soc.4). 3. All call recordings, transcripts, reports, memoranda and other written communications kept by or on behalf of EUI Limited, Ty Admiral, David Street, Cardiff, Caerdydd, CF10 2EH showing or tending to show the nature, content and extent of any telephone calls or other written communication made to them in the period from 26/10/2022 to date by the pursuer regarding the accident on 26/10/2022 (Soc.4). 4. All call recordings, transcripts, reports, memoranda and other written communications kept by or on behalf of EUI Limited, Ty Admiral, David Street, Cardiff, Caerdydd, CF10 2EH showing or tending to show the nature, content and extent of any telephone calls or other written communication made to them in the period from 26/10/2022 to date by the defender's insured, Marcin Puzio regarding the accident on 26/10/2022 (Soc.4)." [4] For the pursuer, Mr McGowan explained that the issue arose because the named haver is a legal entity registered furth of Scotland. The haver is also the defender in the action. Mr McGowan suggested that the position in relation to the court's jurisdiction was a grey area; the pursuer's submission was that it would be unfair if a party subject to the jurisdiction of the court for the purposes of the action generally was not also subject to the jurisdiction of the court in relation to recovery of documents. For example, The Administration of justice (Scotland) Act 1972, section 1 contained no such jurisdictional limit. The pursuer's position was that the general position whereby a party would require to have resort to a letter of request to recover documents in the hands of an entity in another jurisdiction did not necessarily envisage the situation where the haver was another party to the action. In any event the defender, as haver, could consent to commission and diligence. The pursuer submitted there was no good reason why the defender should not do so. Mr McGowan then addressed me on the merits of the application. [5] On behalf of the defender, Ms Smith submitted that the defender is a company registered in England and Wales. The proper procedure was therefore to rely on the Evidence (Proceedings in Other Jurisdictions) Act 1975. It may be possible to use the optional procedure for commission and diligence i such circumstances, however a response on the part of the haver would be voluntary and could not be enforced other than by means of a letter of request. There was a further issue in the circumstances of this case which was that in respect of calls 1 and 3, the defender is the insurer of the pursuer and in respect of calls 2 and 4 the defender is the insurer of the defender. This was a highly unusual situation and entirely coincidental. Nonetheless, the defender was in effect a party to the action and a third party haver at the same time. It was submitted that situation was not discussed in Macphail Sheriff Court Practice at paragraph 15.84 nor in OCR 28.14 which were referred to in the pursuer's written submissions. Ms Smith then addressed me on the merits of the application. Discussion and decision [6] I decided the question of competency in the pursuer's favour. In my view, where a person natural or legal which is domiciled other than in Scotland is a party to proceedings before the court in Scotland, a motion for commission and diligence in terms of a specification of documents can competently be granted against that party. [7] The starting point is that the person (natural or legal) is subject to the jurisdiction of the court on some proper legal basis, in this case as motor insurer pursuant to Regulation 3 of the European Communities (Right against Insurers) Regulations 2002. The defender is bound to engage with the court process in this jurisdiction and is bound to comply with orders of this court for the management of the action, for example the various steps in the timetable issued in terms of OCR36. G1, specific orders regarding the lodging of list of witnesses and productions and, ultimately, the conduct of any proof. Likewise, any decree and any award of expenses made by this court is enforceable against such a party. In some circumstances, the court may also make more detailed and specific case management orders in relation to personal injuries actions, for example following a hearing under OCR 36. G1(3), following a hearing under OCR 36. G1(7), or following a hearing under OCR 36A.9. There are equivalent provisions in respect of certain other specialised forms of procedure; for example, in commercial actions, in terms of OCR 40.12, particularly OCR 40.12(3)(d) and (e), and in terms of OCR 33.34(4) where financial provision is craved in a family action. [8] Against that background, in my view it would be very strange indeed for a person natural or legal to be subject to the court's jurisdiction for those purposes, but not to be subject to the court's jurisdiction for the purposes of an order for the production of documents in terms of a specification of documents. In my opinion, to hold otherwise would be a triumph of form over substance. Reference was made in submissions to Macphail Sheriff Court Practice paragraph 15.84. In my view, that passage does not assist either side of the argument. The discussion seems to me focussed on havers who are not also parties to the action. There is certainly no distinct discussion of parties as havers. [9] As will be apparent the reasons for holding the application competent are confined to the circumstances where the haver is a party to the action; they do not extend to a third party entirely unconnected with the proceedings. In this case there was a slightly unusual feature in that the defender presented as having both of those features because, somewhat unusually, the defender was the motor insurer of the pursuer and the defending driver. In those circumstances, and in those circumstances only, I was prepared to grant the calls of the specification in which the defender was, technically, a third party haver. In circumstances where a haver who or which is furth of Scotland and is completely unconnected with the proceedings, it will be necessary for parties to proceed by means of a letter of request in terms of OCR28.14 or OCR 28.14A in order to recover documents for use in proceedings. [10] Having regard to the basis on which the request for this note was made, I have not thought it necessary to set out the arguments nor my reasons in relation to the merits of the application. However, having heard parties' submissions, I granted the motion for commission and diligence. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotSC/2025/2025scedin21.html