The terminology involved in this process can be confusing and many are unfamiliar with the requirements of this process and what it entails.
This is a brief summary of what a specification of documents is and what steps you need to take to respond to it.
What is a specification of documents?
In the Scottish courts, a specification of documents is crucial for the discovery process. It allows a party to request specific documents that are relevant to the case, detailing who holds these documents and why they are needed. The specification can be served on a party who is either directly involved in the case or not involved at all.
What type of documents are typically requested?
A document can go beyond a written document and may include a photograph, drawing, disc, audio or video recording. The documents requested will depend on the nature of the case. In personal injury claims, for example, it is common to request accident reports, personnel files, risk assessments, medical records, wage records, occupational health records, and CCTV footage. In non-personal injury cases, a specification may seek financial information or communication records between the parties involved.
Do courts automatically allow specifications of documents?
No, a specification of documents must be justified and accompanied by a motion for "commission and diligence". The motion must demonstrate that the request is both reasonable and relevant to the written case.
Further details on commission and diligence can be found in our separate blog post here.
Can I use a specification of documents to recover evidence from the rest of the UK?
No, the letter of request procedure has to be used for recovery of evidence outwith Scotland. This is a formal request from the Scottish Court to the courts in other parts of the UK for documents held in that jurisdiction.
How do you respond to the specification of documents?
Upon receiving a specification, the following steps are recommended:
- Confirm receipt of the specification and assure the party that you will respond as soon as possible
- Gather all documents falling within the specification, ensuring you redact any irrelevant or sensitive information (such as personal contact details)
- Consult with legal advisors to determine which documents should be disclosed and whether any proposed redactions are appropriate
- Prepare an index numbering the documents to be disclosed (this is known as an Inventory Z)
- Arrange for the signing of the certificate confirming that the specification has been complied with.
Who signs the certificate?
In the Scottish court system, the certificate accompanying a specification of documents must be signed by the haver. The haver is the individual who possesses or is believed to possess the documents in question. They are responsible for confirming the location of the documents or noting if they cannot be found. It may be that the haver cannot locate any documents and this should be noted in the certificate.
Is there a deadline in responding to a specification of documents?
There is no set deadline for responding to a specification of documents. Typically, the party serving the specification will indicate in the covering letter that they expect a response within 7 to 14 days.
What if this deadline is not adhered to?
If the deadline is not met, the party serving the specification may organise a commission. This is a hearing in which the haver will be required to attend and be questioned by the serving party's lawyer or advocate about the whereabouts of the documents.
This process is time-consuming and costly. It is best avoided by early disclosure of the documents set out in the specification.
If you or your business has been served with a specification of documents, please contact the Litigation team at MFMac for advice and support.
