Recovery, competency and jurisdiction: Lynsey Kilpatrick v EUI Ltd

It is a frustrating moment of realisation familiar to all civil litigation practitioners.

You have carefully examined the background papers and evidence in your case, spent hours or even days carefully deciding on your strategy to deal with the matter, and decided you need further documentation which you could recover under a Specification of Documents. You begin to prepare the necessary court documents when you realise the haver is not based in Scotland.

How exactly to deal with recovery of documents from havers based outside of the jurisdiction of the Scottish courts can often feel more complicated than necessary. In addition, different sheriff courts have different approaches. Some will automatically reject, by default, any motion for commission and diligence where the haver does not have an address in Scotland, but others will allow such a motion to be enrolled, on the basis that the resulting order would not be enforceable but the haver may nonetheless be willing to comply voluntarily, through the optional procedure.

Formally, the Letters of Request process should be used for recovery from a foreign jurisdiction (to include England and Wales). The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 allowed for 62 states, including the United Kingdom, an “agreement to assist” one another in recovering evidence for the purposes of litigation. The Evidence (Proceedings in Other Jurisdictions) Act 1975 gives effect to this in the UK.

That said, it is not as straightforward as an agreement to assist. The Letters of Request process is more complicated, time-consuming, and costly than a specification of documents. It can take many months to obtain documents, and this does not sit easily with the fairly tight timescales allowed for the progress of actions, particularly in the sheriff courts. A Specification of Documents, on the other hand, is much more straightforward, and involves seeking a court order from the court in which the dispute is litigated. This can then be enforced by means of fixing a commission hearing, to which the haver is cited to attend, or by the optional procedure which provides for service of the order on the haver along with a request that they produce the evidence sought.

The National Personal Injury Court recently considered the competency of proceeding by way of Specification of Documents, when seeking to recover documents from a haver based outside Scotland, in the case of Lynsey Kilpatrick v EUI Ltd [2025] SC EDIN 21. The Pursuer sought to recover documents from the Defender, a company incorporated outside Scotland. The motion for commission and diligence was opposed by the Defender on the basis that a Specification of Documents is not competent in relation to a haver based in England. Written decisions following opposed motions hearings are somewhat unusual, but Sheriff Campbell, who heard the motion, noted that this issue comes up in court sufficiently often so as to make a written decision beneficial.

While Sheriff Campbell acknowledged the existing legislative framework, he was asked to consider whether the position is different where the haver is a party to the action itself. His starting point was to consider whether the haver, as a party to the action, is subject to the jurisdiction of the court on a proper legal basis. If so, as a party to the action they are bound, in terms of the court rules, to comply and engage with the court’s processes with regards to the management of the action, to include administrative steps, case management hearings and the Proof itself. He also noted that any decree made against the Defender would be enforceable, despite their location. Against this background, he stated it would be “very strange indeed” that a party to an action would be subject to the court’s jurisdiction for the wide range of reasons mentioned under the Ordinary Cause Rules, but not for the purposes of recovery of evidence. He therefore allowed the Pursuer’s motion for commission and diligence. He reiterated, however, that where the haver is in a foreign jurisdiction and is not a party to the action, parties must proceed by way of Letters of Request.

Some clarification has been provided, therefore, for Scottish practitioners dealing with recovery of evidence, on exactly where the distinction lies. Parties should be reviewing what evidence they may need to recover at as early a stage in a litigation as possible, and if they consider that they may require to recover evidence from a haver outside Scotland, they should ascertain whether there is any possibility of recovering the evidence voluntarily or informally, before embarking on Letters of Request.

If you have any comments or queries regarding the process for recovering evidence from outside Scotland, please contact:

Sian Keddie, Solicitor: ske@bto.co.uk /  0131 222 2939