Sexual offender’s recovery of documents motion in claim against him by former employer refused

About this case:

• Citation:
  [2024] CSOH 70
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

East Renfrewshire Council had sought to recover £150,000 plus expenses agreed at £28,250 from defender William Wright following the conclusion of another action brought against the council relating to sexual offences committed by Mr Wright. Mr Wright contended that he required the information in the documents to enable him to scrutinise the quantum of the claim made against him by the pursuers.

The case was heard by Lord Lake. F Whyte, advocate, appeared for the pursuer, I Halliday, advocate, for the defender, and A Black, advocate, for the havers.

Not fishing

The pursuers had previously been the defenders in an action brought by a woman, D, who sought damages from them on the basis of their liability for sexual offences committed by Mr Wright against her while he was in the employ of their statutory predecessors. Decree for payment was granted, following which the council sought to recover the sums under section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.

The defender sought commission and diligence to recover documents from D’s solicitors, the havers, that were lodged in process or intimated to the pursuers to quantify her claim. These included documents showing the nature, extent, and cause of D’s injuries, medical records, and documents vouching for her losses claimed in the earlier action. It was agreed between Mr Wright and the havers that the documents could only be seen by solicitors and counsel instructed in the case and that they could only be used for the present action.

For the defender it was submitted that he did not know whether the settlement sum was excessive, and he required to see the documents to form a view on this matter. The scope of the order was not “fishing”, and no issue of privilege would arise. No intimation of the request was made to D, which was explained as a measure to avoid causing her distress.

While the pursuers adopted a neutral position on the motion, the havers, who no longer acted for D, submitted that the motion should be refused in hoc statu pending intimation being made to D. The material was private and confidential to a victim of sexual abuse, and she had not been given a chance to be heard in relation to its recovery.

Opportunity to be heard

In his decision, Lord Lake said of the relevant considerations: “The nature of the records sought and the circumstances of the connection between the person seeking recovery and the person to whom the records relate are such that they could not really be more sensitive. The balance that has to be struck before the records could be released will require consideration of the extent to which they are necessary to enable the defenders to vindicate his rights.”

He continued: “I consider that there is force in the argument that, in determining what level of contribution from the defenders is ‘just’ in terms of the 1940 Act, the issue will not turn on what is contained in D’s medical records as much as the basis on which the Council reached their decision to make a tender to D. In any view, however, I am of the view that this is a matter on which D must have the opportunity to be heard before an order for commission and diligence is made.”

Explaining his decision further, Lord Lake said: “I accept that issue of confidentiality could be determined in future if the documents were to be lodged in a sealed envelope but the issue of the principle that they were recoverable would have been decided. Before getting to that stage, the importance of the interests of each party must be considered and balanced. This is not a case in which there is a concern that the records in question may be lost or destroyed.”

He concluded: “If the defender wishes to re-enrol, it will be necessary that the motion is intimated to D. At the time the motion was heard, the havers had not been in contact with D and she was not their client. In the days following the hearing, they have advised the court that they have been able to make contact with her and that she had instructed them again. It should therefore be possible to ensure that D is made aware of any motion.”

The motion was therefore refused in hoc statu.