East Renfrewshire Council v William Wright (Court of Session)

Factual and Procedural Background

The Plaintiff, a local council, was previously held liable in an action brought by a claimant ("D") seeking damages for sexual offences committed by the Defendant, a former employee of the council's statutory predecessors. The Defendant had been convicted of these offences. The council was found vicariously liable and a decree was issued against them for payment of £150,000 plus expenses of £28,250. The council now seeks to recover these sums from the Defendant under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, section 3(2), which allows recovery of contributions deemed just by the court, independent of any contractual breach by the Defendant.

The Defendant sought commission and diligence to recover documents from the solicitors who represented D in the earlier action. These documents relate to the quantification of D's claim, including medical records, expert reports, and documents evidencing loss of earnings, pension, and other claims made in the earlier action.

Following discussions, agreements were reached limiting the use and disclosure of recovered documents to the present action only, restricting access to solicitors and counsel, and ensuring D’s rights under Article 8 of the European Convention on Human Rights (ECHR) were respected, including the opportunity for D to be heard before the documents were disclosed to the Defendant’s representatives.

Legal Issues Presented

1. Whether the court can grant commission and diligence to recover documents relating to the earlier claim without first determining their relevancy and without D having had an opportunity to be heard, given the sensitive nature of the documents and D’s Article 8 rights.
2. How to balance the Defendant’s right to defend the contribution claim with the claimant’s right to privacy and confidentiality under Article 8 ECHR.
3. Whether documents can be lodged in a sealed envelope pending further court order to address confidentiality and relevancy concerns.

Arguments of the Parties

Defendant's Arguments

• The Defendant requires access to the documents to scrutinise the quantum of the claim and to contest the extent of damages for which he should be liable.
• The Defendant does not know whether the settlement sum paid by the council was excessive and needs to review the documents underpinning the Council’s quantification.
• The documents sought were already lodged in process or intimated to the Council, so no privilege issues arise.
• Intimation to D was not made earlier to avoid causing distress and because it was believed her solicitors were still representing her.
• The court can address relevancy now and allow documents to be lodged in a sealed envelope, with D participating in any subsequent motion to open the envelope, thus balancing rights appropriately.

Claimant’s Former Solicitors' Arguments (Havers)

• The motion should be refused at this stage pending intimation to D and her opportunity to be heard, given the private and confidential nature of the material relating to a victim of sexual abuse.
• There may be relevancy issues concerning the documents sought, which D should be able to address before any court order is made.
• The relevant issue in any subsequent action will concern the basis on which the Council valued and settled the claim, not the contents of D’s medical records.
• References were made to authoritative cases supporting the need for intimation and hearing before sensitive documents are disclosed, including F v Scottish Ministers and Cowie v Vitality Corporate Services Ltd.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized the sensitivity of the documents sought, particularly medical records connected to a sexual abuse victim, and emphasized the necessity to protect the claimant’s Article 8 rights. It found that before ordering recovery of such documents, the claimant must be given an opportunity to be heard, consistent with established authority. Although the Defendant’s right to defend the contribution claim is important, this must be balanced against the claimant’s privacy interests.

The court acknowledged that documents could be lodged in a sealed envelope to protect confidentiality, but stressed that the principle of recoverability itself must be decided with the claimant’s participation. The court noted that no urgency existed to justify overriding these protections, as there was no risk of loss or destruction of records.

Ultimately, the court concluded that the motion for commission and diligence should be refused at this stage, pending intimation to the claimant and an opportunity for her to be heard on the issue of relevancy and confidentiality.

Holding and Implications

The court REFUSED THE MOTION IN HOC STATU, meaning it declined to grant commission and diligence to recover the documents at the current stage without prior intimation to the claimant and her opportunity to be heard.

The direct effect of this decision is that the Defendant must intimate the motion to the claimant before re-enrolling the motion, allowing her to participate in protecting her privacy rights. No new precedent was established; rather, the court applied existing principles to ensure a fair balance between the parties’ rights in sensitive circumstances.