An anecdote

 I've been speaking to a few journalists about the Salmond inquiry. I spoke to one this morning and it was that conversation which has prompted this blog.

If you are a lawyer, you assume everybody else knows what you know about the law. Although if you think about it for five minutes, it is as well they do not. Or you'd be out of a job. 

There seems to be a fundamental misunderstanding about how unprecedently the Salmond civil court case proceeded. For a public authority to be faced with an actual commission is pretty unprecedented but for them, only then, to disclose the existence of certain documents critical to their case is, I suspect, entirely unprecedented. But that is what, now by express admission, happened here.

But it became clear that my interlocutor this morning, one of those who has reported this matter in great detail, didn't fully comprehend that. Yet any lawyer of any political conviction and none would readily confirm that. 

So here is a brief explanation of what happened. What is a Commission? It would have started with what is known is a Specification of Documents. A Specification of Documents is an order of court made, on the application of any Party, for the production of documents held by either the opposing Party or by a third Party.  

Such developments are a routine part of many court processes. I will try a brief example. A bog standard tripping claim. Man trips on a pavement pot hole, claims it damaged his knee, caused him to be unfit for work for six months, losing earnings, and sues the Council. This might routinely generate three specifications (if required). Firstly the Pursuer would seek details of any inspection reports regarding the pavement, any record of complaints regarding it's pre accident condition and, if the very existence of a pot hole is denied, any record of repairs between the alleged date of the accident and the raising of proceedings. Secondly, he would seek from an unwilling to be bothered employer details of pre and post accident earnings to enable him to establish his wage loss. Thirdly, if the defender's are suggesting  he is attributing to this fall symptoms that long preceded it, they would seek an order for the production of his GP records. 

Except the first and third of these would almost certainly not happen because the lawyers on either side would know that a court would grant such an order so would lodge all relevant records in advance of being ordered to do so. I'll avoid going down the rabbit hole of the protocol at this point. 

At this point we'll also forget the middle spec (that's what we call this) and move on to the Council having lodged their records but the Pursuer not believing them (in good faith or otherwise) to be complete.

A motion is lodged and granted requiring the production of all records. At this point I'll try to move forward quickly, skipping the voluntary procedure bit., a Commissioner is appointed. Who is a Commissioner? A Commissioner is a lawyer vested by a judge or sheriff with the powers on their behalf to take evidence on oath from a haver. A bit like a deputy sheriff sworn in in a Western. And who is a haver? A haver (pronounced hayver) is a person who might be in possession of relevant documents.

The Party still seeking documents then cites any persons he believes might be in that position to attend a "Commission" and give evidence on oath before the Commissioner as to the extent of their knowledge. A Commission being a deputised Court and false evidence at that point having the same consequence as false evidence to a court.

Now at this point for the sake of brevity I want to skip forward to an actual case  litigated twenty plus years ago by a pal.  His client had sustained an injury on an open stank in a Glasgow public park. The council did not deny that fact but maintained that the first they were aware of the defect was when the claim was lodged, so negligence could not be proved. But the client had an ace. Local gossip alerted him to a woman who claimed to have reported this months before when her son's bike had been damaged at the same point.

So the voluntary procedure having failed to disclose that, a  Commission was aimed at getting that report. In advance of the Commission a request was made to the council for the details of the park inspector so that they could be cited. The response was the inspector no longer worked for the council. Further correspondence as to their home address ended with an offer from the council to concede the claim. So my pal phones his opposing lawyer and is told, off the record, that it transpires the inspector has been invited to resign (this is local government after all) for repeated failures to record or act on complaints. 

So what is the point of this anecdote? 

Well firstly, that junior employees are sometimes useless. And, secondly, more senior management are not necessarily aware of the detail. And, thirdly, generally, when the truth comes out, more senior management do comprehend the idea of being public servants.

But most importantly, even in this most minor of matters, that letting this matter proceed to a Commission where their employee would be destroyed as, at best, useless and at worst, a  liar,  by an even  reasonably competent solicitor (sorry pal), was not something that Glasgow Parks Department were prepared to contemplate. But the Permanent Secretary of the Scottish Government was. Even knowing her employee would be cross examined by some of the best lawyers in Scotland.

Difficult to see that was for any reason except to buy time. Odd call by a politically independent civil servant.