Inner House allows appeal and orders different judge to hear case of alleged contempt of court in the course of commission and diligence

Judges in the Inner House of the Court of Session held that the Lord Ordinary “erred in several respects” in deciding against hearing evidence on disputed issues of fact over whether a commissioner appointed to recover the documents was prevented from carrying out his duties.

Lady Paton, Lady Smith and Lady Dorrian heard that the minuters Martin & Co (UK) sought certain recoveries in terms of section 1 of the Administration of Justice (Scotland) Act 1972 in relation to a franchise agreement.

A senior member of the Scottish bar was appointed as commissioner, but when he - accompanied by staff - entered premises of the respondents Kenneth Stenhouse and Graham Main in Hamilton, he was met with what he described as an uncooperative response.

He made certain allegations concerning the behaviour, language, and general reaction on the part of the respondents and reported that a female member of staff left the premises carrying two cardboard boxes containing files, despite being instructed not to do so by the commissioner.

The minuters averred that the second respondent obstructed the execution of the commission by stating that he would “physically stop” the commissioner from removing items of property”, “by making threats to the commissioner” and by stating “I’m getting fucking sick of you disrupting my business” – claims which were denied.

The commissioner claimed he was unable to commence carrying out his duties until much later in the day and only after having contacted the court and having obtained and exhibited an emailed interlocutor containing a power of arrest.

On a later visit to premises in Airdrie, the commissioner reported that he found no files or computers and when a when a further stage of the commission took place, the two respondents and a female member of staff each stated that they had no documents relating to the franchise and did not know where they were.

The minuters concluded that they had made every effort to achieve recovery of documents, without success.

They decided that they would take no further proceedings to try to enforce the orders, but they instructed the present proceedings by way of a minute due to what they considered a “major contempt of court” and a challenge to the court’s authority.

The respondents lodged answers, averring that what had occurred during the commission was “banter”.

They denied saying that they physically stopped the execution of the commission, but said they had been irritated by the “unjustified intrusion” into their business.

The Lord Ordinary, Lord Glennie, appointed the matter to a “hearing on proportionality” following which he made no finding of contempt, but ultimately decided, on the basis of the commissioner’s report and submissions, that even if the respondents had been in contempt it would not be proportionate for the minute and answers to continue.

However, the minuters reclaimed, arguing that the authority of the court had been “undermined” and the Lord Ordinary erred in law in failing to allow the commissioner the opportunity to give evidence.

Allowing the appeal, the judges held that the Lord Ordinary erred in deeming the allegations of defiant language and behaviour as being “unworthy of further investigation”, and by concluding that further proceedings would be “disproportionate”.

Delivering the opinion of the court, Lady Paton said: “First, we consider that disputed questions of fact – for example, whether, and if so, why, the commissioner was impeded to any extent in the execution of his commission – requires the leading of evidence from the witnesses concerned…Issues of credibility and reliability, and matters involving the weight of any evidence, will require to be resolved. Until evidence is led, it is not, in our opinion, open to the Lord Ordinary to rule out the possibility that the evidence might establish that the commissioner was significantly impeded in the execution of the commission.

“Secondly, even if it were thought appropriate to hold some sort of preliminary hearing in an attempt to assess the proportionality of permitting the minute and answers procedure to continue, we consider that the appropriate test in such circumstances is whether, even if all the minuter’s averments were to be proved, it is plain that the behaviour in question is so trivial and so unimportant that it does not merit any further court procedure.

“Our conclusion is that at this stage, assessing matters on the basis of the averments supplemented by the commissioner’s report, it cannot be said that the minute is bound to fail, or that no reasonable Lord Ordinary, having heard the evidence, would conclude that what had occurred was a serious matter, and not trivial. In our view, the language and behaviour alleged to have occurred strike at the very heart of the dignity and the power of the court and its officers, and are likely to interfere with the course of justice.”

Thirdly, after assessing the possible effect of the respondents’ behaviour at the commission, the Lord Ordinary “focused solely upon the private interests of the parties, and gave no consideration to the public interest”.

Lady Paton added: “The commission involved not only the private interests of the parties in the pursuit of their dispute, but also (importantly) the public interest, in particular the upholding of the rule of law by protecting or enforcing the authority of the court.”

The court decided to remit the minute and answers to a different Outer House judge to consider the case.