Within the evolving legal landscape of personal injury, lies a piece of legislation to which pursuers’ firms are becoming more alive when considering the merits of an injured party’s claim, particularly in the pre-litigation stage, writes Mark Hastings.

The Administration of Justice (Scotland) Act 1972 is, perhaps, an underappreciated piece of legislation. It confers extensive powers on the Court to make a variety of orders in relation to the recovery of documents and property both pre and post-litigation.

The mechanics of making an application under the Act involve the applicant lodging the application in the form of an Initial Writ in which he seeks an order from the Court for the recovery of the documentation sought. The factual and legal basis for seeking to recover the documents must be clearly pled. The respondent is then provided an opportunity to lodge answers to the application and the matter will then call before the Court for an initial hearing. At that hearing the Court can then assign an evidential hearing to discuss the substantive merits of the application.

In terms of s.1 (2) of the Act, the Court has to be satisfied there exists an intelligible prima facie case before an application will be granted. It also requires to be satisfied that proceedings are likely to be brought but does not require an assurance that proceedings will be brought. If a relevant case is not pled or if the court is not satisfied that proceedings are likely to be brought, the application ought to be refused. So far so good.

However, the Act is sometimes used by Pursuers’ firms as a vehicle to recover documents in cases in which they do not have enough information in order to plead a relevant case against an insured or be sure of success if the claim itself is litigated. In those cases, the ‘would be’ Pursuer may elect to bring an application under s.1 (2) of the Act to recover the documentation they may need to properly formulate their claim against an insured. However, to do so would be to misuse the Act given that it requires a prima facie case to be pled. If that cannot be done then the application should be refused.

The applicant ought not to make a speculative application on the hope that it may disclose helpful information. That would not be the proper basis for an intended claim. It has been said that hope or suspicion is not enough to support an application.

Tactically, you can envisage / encounter circumstances whereby prior to a formal claim being intimated Pursuers’ firms make Subject Access Requests under the Data Protection Act 1998 as a vehicle to secure information which will allow them to assess liability. This is often done prior to a formal letter of claim being intimated. If the insured does not respond or does not provide the information being requested (whether it properly falls under a subject access request or not) then this can be used as the rationale justifying an application being made.

This causes an issue for both insurers and their insured. The issue for the insured is how to properly respond to often legitimate requests for personal data. It raises further questions surrounding data protection if the information being sought includes reference to other individuals. What about their rights as data subjects?

What becomes more difficult is also when the documents requested do not fall within the terms of the Subject Access Request and are not specific to the individual applicant. This can be problematic for the insured. If the s.1 (2) application is made it also raises the question of whether their insurers will pay for the defence of that application. This can cause an issue, particularly if the insured’s policy only responds when a claim is made, and not in respect of matters arising prior to a claim being intimated.

The corollary of this, from the insurers’ perspective, is how to deal with such applications and whether, as a matter of policy they wish or have the resources and time to deal with pre-claim issues, if the insured’s policy of insurance is not yet engaged. If the insurer opts not to become involved until a claim is made, the potential arises for documents which ought not to be disclosed, being disclosed. This can prejudice the position if a claim is then made.

Whilst each application requires careful consideration on its own merits, insurers and their insured should take a robust stance given that if applications are made with increasing regularity and the costs are met by the insurer or the insured, the applicant’s solicitor is effectively paid twice, once for bringing the application (should it be successfully argued at court or, compromised prior to the hearing) and then for making the claim proper.

Having proper training on the issues involved, together with a considered strategy to deal with Summary Application / Subject Access Requests ought to ensure that the issue is dealt with properly and cost effectively for insurer and insured alike.