The case of Peacock Group plc v Railston Ltd [2007] CSOH 26 raised an unusual point in relation to court productions. In this case, the Pursuers were seeking damages for losses incurred where a contractor allegedly failed to connect two water pipes correctly, resulting in the connection failing and the premises being flooded by water.
The Defenders blamed their sub contractors, whom they brought into the action as a Third Party.
Shortly after raising the action, the Pursuers had lodged with the Court as productions a section of the pipe, the failed connection, and a sample new pipe fitting kit. Both the Pursuers and Defenders had expert reports prepared. The Pursuers subsequently borrowed out the productions, prior to the Third Party being brought into the action.
The Third Party in due course sought to obtain their own expert report, but it was discovered that the productions had been lost while in the possession of the Pursuers.
In these circumstances, Lord Drummond Young decided that the Third Party faced insurmountable prejudice in being deprived of the opportunity to obtain their own independent report. They were in no way at fault themselves and could not be expected to rely on the reports of their opponents. He held that since the loss of the productions was the fault of the Pursuers, they must bear the responsibility for the consequences, and the action was dismissed.
This may not be a situation which is likely to arise on a regular basis, but it does offer some insight into parties’ responsibilities in relation to productions lodged with the Court, and some wider implications in relation to parties’ own conduct of court proceedings.
If an item (or a document) is lodged with the Court, then it must be looked after and preserved for the Court proceedings. There are often situations where productions are borrowed out. This case makes it clear that the loss of an essential item or document may put the entire case at risk. On a practical level, it will be good advice not to borrow out principal productions unless absolutely necessary, particularly in relation to documents where a copy will frequently suffice as a working document.
The case also stresses that the Court will look at the situation from the point of view of the prejudiced party, and will be prepared to take drastic steps if the prejudice is serious. It is suggested that if a Defender had lost productions in a similar situation, the Court might have granted Decree against them. It is perhaps notable that the Court here made no undue criticism of the Pursuers. It seemed to accept that these things happen, but nevertheless the responsibility for the consequences lay with the Pursuers.
The case also raises some wider questions, for example, in relation to evidence not yet lodged in Court as a production, but essential for the case. What would have happened if the pipe had not yet been lodged in court as a production? The answer may well be that (assuming the point was argued) the Court would still have considered the prejudice caused, whether second hand evidence (such as photographs for example) were available, whether the prejudiced party had delayed in making their investigations or instructing their report, who was responsible for the loss, and why it occurred (repairing a building defect promptly, for example, might be objectively justifiable).
Overall however, the case is an illustration of a) the need to preserve evidence and b) the possible consequences if proper care is not taken to abide by the Court’s rules and expectations.
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Alistair Murdoch
(Information posted in July 2007and may not have been updated at time of reading).