Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 54
A157/94	OPINION OF LORD BRODIE in the cause MRS JULIE ANNE MCLEAN (Assisted Person) Pursuer; against ARGYLL AND CLYDE HEALTH BOARD Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: James Campbell QC; Lindsays WS

Defenders: Stephenson QC; Scottish Health Service Central Legal Office

16 April 2010

Motion and decision

[1] This is a motion on behalf of the pursuer for commission and diligence to recover documents in terms of a specification of documents, number 19 of process. The motion is opposed, first, on the basis that it constituted a fishing exercise which had no proper basis, either in the Record or the outstanding Minute of Amendment for the pursuer (the terms of which were not consistent one with the other) and, secondly, on the basis that the calls in the specification are inexact and not capable of being readily understood. Having heard counsel, the motion to amend the specification made at the bar being opposed on behalf of the defenders, I allowed amendment of the specification. The amendment included the incorporation of two new calls (numbered "2" and "3"), which, together with another call that Mr Campbell for the pursuer did not choose to adopt, had been put forward by Mr Stephenson for the defenders as an acceptable alternative to what had originally been moved.

[2] As amended, the pursuer's specification of documents was in the following terms:

"1. All records, plans, memoranda, staff duty rotas, protocols, policies, and other documents, whether held as a hard copy or in electronic format, relating to Paisley Maternity Hospital, Paisley and the Royal Alexandra Hospital, Paisley, and held by or on behalf of the defenders, for the period 1^st January 1990 to 16^th February 1990, in so far as relating to the care of the pursuer and her child, Kirsty Anne McLean, from the date of the pursuer's admission to said maternity hospital on or about 11^th February 1990 to the birth of her said child within said maternity hospital on 16^th February 1990 in order that excerpts may be taken therefrom at the sight of the Commissioner of all entries shown or tending to show:

(a) the number, grade, and identity of all medical staff on duty at said maternity hospital during the period 00.00 to 08.00 hours on 16^th February 1990

(b) the times at which said staff were present on duty at said maternity hospital during the period 00.00 to 0800 hours on 16^th February 1990

(c) the number of operating theatres available for use at said maternity hospital during period;

(d) the defenders' policy or policies in respect of the availability for use of such operating theatres during said period, and in particular the availability of such theatres for the carrying out of emergency caesarean sections, such as that ultimately carried out on the pursuer;

(e) the number of patients in labour in said maternity hospital during the said period following the pursuer's said admission thereto;

(f) which, if either, of the two operating theatres in said maternity hospital was closed down on the night of 15^th/16^th February 1990;

(g) the cause of any such closure;

(h) the date and time that such closure, or the need for same, became known to the defenders;

(i) the date and time at which such closure should have been, or would have been made, apparent to Dr Grewal and the other medical and midwifery staff in said maternity hospital;

(j) the length of time the defenders, once aware of, or of the need for, such closure, anticipated that such an operating theatre would be unavailable for routine use;

(k) the contingency plans, if any, (including the possibility of preparing another room within the labour suite as a temporary operating theatre) which the defenders had in place, during the period of the pursuer's said admission to the said hospital, to cope with the possibility that more than one patient might require an emergency caesarean section at or about the same time;

(l) the steps, if any, which the defenders took to convey such contingency plans to their staff, such as Drs Grewal and Sarkar, who might find themselves in the situation of wishing to carrying out more than one emergency caesarean section at or about the same time;

2. The obstetric medical records of the patient Gillian Ward referred to on Record relating to her admission to Paisley Maternity Hospital in February 1990 in order that extracts may be taken therefrom at the sight of the commissioner of all entries therein showing or tending to show (a) the condition of Mrs Ward and her child in utero between 00.00 hours and 07.00 on 16 February 1990, (b) the examinations investigations and interventions made in respect of Mrs Ward and the said child by medical and midwifery staff during the said period.

3. The Theatre Logs kept in respect of the surgical theatres at Paisley Maternity Hospital for the period 15 and 16 February 1990, in order that extracts may be taken therefrom at the sight of the commissioner of all entries therein showing or tending to show (a) the number of the theatres in use on the said dates, (b) whether one of the said theatres was not in use on the said dates and, if so, which theatre was closed and the reason or reasons therefore, (c) the occupancy and use made of the said theatres between 00.00 hours and 08.00 hours on 16 February 1990.

4. Failing principals, copies, duplicates or drafts of all of the above or any of them.

[3] I granted the motion for commission and diligence, but only in respect of the new calls 2 and 3 and call 4 which provided, failing principals, for recovery of drafts and copies. I granted leave to reclaim my interlocutor in respect that it refused recovery of documents in terms of the amended call 1, Mr Campbell having indicated that obtaining this recovery was potentially crucial for the pursuer's prospects of eventual success in the litigation. Consequent on my grant of leave to reclaim I discharged the diet on the Procedure Roll assigned for 30 April 2010.

Procedural history

[4] The action is brought on behalf of Kirsty Anne McLean who, it is alleged, sustained brain damage in the form of hypoxic ischaemic encephalopathy with consequent severe disability, as the result of the mismanagement of her birth at Paisley Maternity Hospital on 16 February 1990. Kirsty is and always has been incapax. Her claim is therefore not subject to limitation. The pursuer is Kirsty's mother, Mrs Julie Anne McLean. The summons was signetted on 26 April 1994. The action was sisted for investigation on 27 May 1994. The sist was recalled on 1 April 2005. There was an extended adjustment period. The Record closed on 8 February 2006. At the By Order (Adjustment) Roll hearing on 12 April 2006 the cause was appointed to the Procedure Roll on the defenders' first plea, proof before answer having been offered by the pursuer. Procedure Roll diets assigned for 21 February 2007 and then 7 June 2007 were discharged. The cause was again sisted between 7 June 2007 and 9 December 2009. A Minute of Amendment for the pursuer was received on 26 March 2006. Answers to that Minute were received late on 16 April 2010, immediately prior to the hearing of the present motion.

The case as currently pled

[5] The case as pled in the Record lodged on 23 March 2006 is based on what is said to have been the negligence of two obstetricians employed by the defenders, Dr Grewal, a registrar, and Dr Sarkar, a senior registrar. Put shortly, it is averred that on the information available to her from cardiotocography and otherwise as to the condition of the foetus and the progress of the delivery, Dr Grewal should have delivered the child by caesarean section no later than 0500 hours on 16 February 1990, whereas that was not done. Rather, Dr Sarkar, who had been called in to the hospital by Dr Grewal, inappropriately attempted a forceps delivery at about 0630, Kirsty only being delivered by caesarean section at 0730 hours.

[6] The defenders aver that Dr Grewal examined the pursuer at about 0520 on 16 February, having immediately previously been attending to another case of possible foetal distress, and that she telephoned Dr Sarkar and explained that in the labour ward were both the pursuer, who had been in the second stage of labour for some time with no prospect of immediate vaginal delivery, and the other patient who had a cardiotocograph indicative of acute foetal distress with unsatisfactory blood sampling. It is further averred that Dr Sarkar advised Dr Grewal to carry out an emergency caesarean section on the other patient while he attended the Maternity Hospital in order to examine the pursuer. As instructed, Dr Grewal performed a section on the other patient. Dr Sarkar attended the hospital approximately ten minutes after completing the telephone call. There was then only one operating theatre available in Paisley Maternity Hospital, that being Theatre 1. Theatre 2 could not be used due to a roof leak. Dr Sarkar decided that the pursuer required to be delivered either by forceps or by caesarean section. No theatre was immediately available due to the procedure being carried out by Dr Grewal. When application of the forceps blade appeared tight, the procedure was abandoned immediately. When Theatre 1 became available the pursuer was taken there and a caesarean section was carried out by Dr Grewal assisted by Dr Sarkar and another clinician.

[7] The pursuer's present response to these averments about the other obstetrical emergency and a second theatre not being available is, on the hypothesis that only one theatre was available in the Maternity Hospital, to point to the near proximity of the Royal Alexandria Hospital where a surgical theatre would have been available and to allege negligence on the part of Dr Grewal and Dr Sarkar in failing to assess both patients and prioritise their care to enable both to be delivered safely and to transfer one to a theatre in the Royal Alexandria.

The Minute of Amendment

[8] The Minute of Amendment for the pursuer proposes to rewrite that part of the condescendence of fact that relates to events from 0430 onwards on 16 February 1990. That condescendence concludes with a series of calls made by the pursuer on the defenders to make averments on a number of matters relating to the closure of Theatre 2. The cases of fault made against Dr Grewal and Dr Sarkar are proposed to be altered, the focus of the amended cases being on the failure to have the pursuer taken to theatre and delivered by caesarean section no later than 0610. No other case of fault is advanced against the defenders.

Discussion

[9] Mr Campbell was very frank in explaining his purpose in seeking commission and diligence in terms of call 1 in the specification of documents. He summarised his case, which depended on his establishing that either Dr Grewal or Dr Sarkar should have delivered Kirsty by caesarean section, if not by 0500 as averred on Record then by 0610 as averred in the Minute of Amendment. The pursuer was met by averments to the effect that that was not possible. It was averred that Dr Grewal was engaged with another emergency which had been assessed as meriting priority and no other theatre was then available in the Paisley Maternity Hospital in which Dr Sarkar might operate. Mr Campbell was concerned that that might constitute a sufficient answer to the contention that the immediately responsible clinicians were at fault. He therefore wished to explore whether the fact that only one theatre was available to Dr Grewal and Dr Sarkar might infer fault on the part of others for whom the defenders were vicariously liable by reason of their failure to institute and maintain a system which provided a sufficient number of properly staffed and available operating theatres for the foreseeable needs of the patients booked in to Paisley Maternity Hospital. Clearly, if Theatre 2 had only ceased to be available not long before 16 February 1990 that might not infer any fault whatsoever. It might be different if the situation had persisted over a prolonged period. The defenders' averments said nothing about for how long the theatre had been out of operation. When I suggested that the pursuer's remedy was to take a plea to the relevancy of these averments by reason of their lack of specification, Mr Campbell argued that however strictly the judge at proof held the defenders to their averments, it would be impossible to prevent Dr Grewal and Dr Sarkar, who the pursuer would probably have to lead, explaining the delay in performing a caesarean section by reference to the absence of an available operating theatre. This would be an "elephant in the room", in other words something that was impossible to ignore.

[10] Listening to Mr Campbell's explanation I formed the view that as far as call 1 was concerned, this was, as Mr Stephenson came to submit, a fishing diligence and, as such, not one that I was prepared to grant.

[11] I confess to not knowing whether the original use of the expression "fishing diligence" was intended figuratively. Lord Sutherland was clearly using a piscatorial metaphor when, in Parks v Tayside Regional Council 1989 SLT 345 at 347, he referred to a fishing diligence as implying that "a trawl will be launched and then the catch inspected in the hope of finding something which might turn out to be useful" but the usage is of such long standing, going back at least to Mackintosh v Macqueen (1828) 6S 784 that it may be better simply to regard it as a term of art. It is frequently used and should be well understood. In Boyle v Glasgow Royal Infirmary and Associated Hospitals 1969 SC 72, Lord President Clyde at 79 described a fishing diligence as "an attempt to recover documents in the hope that they will disclose material which will enable the party to make a case not yet averred on record." A slightly broader formulation is to be found in the Opinion of the Court, delivered by Lord Justice Clerk Ross in Civil Service Building Society v MacDougall 1988 SC 58 at 62: "A fishing diligence is one for which there is no basis in the averments or one which involves too wide a search among all the papers of the haver." The authors of MacSporran and Young, Commission and Diligence, at paras 3.29 to 3.36, identify three situations where the expression can be used: (i) where there are no averments to support a call, (ii) where the averments are too vague, and (iii) where the call is wider than necessary.

[12] The disinclination of the court to exercise its discretion to order recovery of documents in the hands of another party to the action or a third party arises from the nature of our system of civil litigation and the part that may be played in that by documents and the information contained in documents. Civil litigation is adversarial and not inquisitorial or investigative. A party who conceives he has a claim against another party is expected to articulate that claim. His opponent will then decide how he wishes to respond. Each party is entitled to have regard to his own interests. Neither party has an obligation to assist the other. The parties identify the issues and specify them in their written pleadings. Once the pleadings are finalised parties may get the opportunity to prove their respective averments but neither the proof nor the procedure leading up to it is of the nature of a general inquiry. Litigation is about the determination of issues brought to court by parties, not an exploration of what the issues might be. The right to apply to the court for an order for the recovery of documents is subordinate to that structure. Recovery may be ordered but only at the appropriate stage and for an appropriate purpose. I see these perhaps self-evident propositions as established by the authorities to which my attention was drawn by Mr Stephenson, beginning with Greig v Crosbie (1855) 18D 193 where the Lord President (McNeill) said this at 195:

"I am not inclined to grant this diligence. The pursuer comes into Court not knowing his own case; and the object of this diligence is obviously not to enable him to make his statements more specific, but to ascertain what his grounds of action really are. Such use of diligence is not permissible."

The other judges of the First Division were to the same effect. Lord Curriehill observed, also at 195:

"It appears to me that the pursuer has brought an action into Court without knowing what he was to ask, or the grounds of his demand; and the first thing he does is to ask this diligence, in order to ascertain what kind of case he has. I think this is a very great abuse of the diligence competent to be granted by this Court for the discovery of evidence. ...if the party knows the case which he is to make, but only requires information to enable him to make his record in the specific form that the statute requires, the diligence may be granted; but if he is seeking at that stage documents in modum probationis, you will refuse it, and reserve the demand till the proper time for proof arrives."

Lord Ivory added, at 196:

"I have never understood ...that a party coming into Court without any precise notion as to what his grounds of action were, should come here and fish for grounds of action, and get at something which is not the ground on which he has brought his action. If he brings an action of a sufficiently precise nature, so that all that is wanted is to make his statements specific, he may be allowed his diligence. But he must come into Court with some precise ground of action, which is to be supported and explicated."

The same principles are reiterated in Boyle v Glasgow Royal Infirmary and Associated Hospitals 1969 SC 72 and Moore v Greater Glasgow Health Board 1978 SC 123 which parties were agreed accurately stated the modern law.

In Boyle the Lord President (Clyde) said this, at 77:

"It is well settled that a commission and diligence will not ordinarily be granted before the record is closed, and, if it is to be granted, the Court must be satisfied that very special circumstances exist to warrant such a course. Moreover, it has long been settled that, if the diligence is of the nature of a fishing diligence, that is a clear ground for refusing it. In addition to this, if it appears that the purpose of the call is to enable the party to prove an averment already made on record, the call should be refused at the open record stage. On the other hand, however, there may be cases in which a party at the adjustment stage of the case requires to make his averments more specific in some material particular ... In such a case the Court has a discretion whether or not to grant a diligence for this purpose. An obvious case where this last-named situation arises is where the other side directly call in their pleadings for further specification, and the documents to enable this to be done are in the hands of the party calling for the further specification ... These rules were laid down by Lord Curriehill in Greig v. Crosbie ^... and they have been followed consistently since ..."

Lord Guthrie, again citing Greig v Crosbie, put it this way at 79:

"It is clear that the grant of a commission and diligence before the closing of record is exceptional. It has been called an "indulgence" by the Court, but this is incorrect. It is more accurate to say that it will be granted only in special circumstances, in which the party seeking it can show that access to the documents is necessary to enable him adequately to state his case on record. That requirement will, of course, also be satisfied if the documents are needed at that stage to enable the party adequately to answer the averments of his opponent. It is well settled that the Court will not grant a "fishing diligence," by which is meant an attempt to recover documents in the hope that they will disclose material which will enable the party to make a case not yet averred on record. But it is special cause for granting a diligence at the early stage that the party has made averments on record which state a case, but which require to be made more specific by means of the documents sought to be recovered. It is not special cause if the documents are necessary only in modum probationis, that is, for the purposes of a proof which has not yet been allowed (Greig v. Crosbie, per Lord Curriehill at p. 196). It follows that it is no reason for granting a commission prior to the closing of record that the specification is such as would entitle the party to the grant of a commission after an allowance of proof."

Lord Cameron also referred to Greig v Crosbie, at 82:

"The cases cited in Maclaren on Court of Session Practice at pages 1059-60 illustrate the circumstances in which what has been called this "exceptional indulgence" (but what is truly not an "indulgence" but a recognised exception to a general rule of practice) will be granted where the documents are in the hands of the opposite party or a third party and their recovery becomes necessary in order that a case may be set out in sufficiently ample terms to give proper and fair notice of the case which is to be made in evidence and to give adequate and sufficiently specific replies to an opponent's averments. Where further information is necessary for these purposes in the shape of documents to which the party calling for them has not access, a diligence for their recovery may be granted. ... The only question is whether the recovery of the documents is shown to be necessary for the purpose of enabling the pleadings of the party calling for them to be put in that specific and detailed state to which your Lordship referred in the case of MacRae v British Transport Commission 1957 SC 195. ... When Mr Caplan was asked to what relevant and specific information he could not get access which was necessary for the completion of his pleadings, he could give no effective answer. ... At one stage his attitude was that he would then be able to discover if he had a case. Of course, if that were the purpose, then he stands self-condemned of "fishing" and the observations of the Lord President and Lord Curriehill in Greig v. Crosbie would be destructive of his claim to recover at this stage. If the purpose is to assist in working up the evidence for the pursuers, then the records are really being sought in modum probationis. Mr Caplan's difficulty, as I see it, is that he was not seeking particular information or a particular document to enable him to complete the specification of his pleadings, but a wide collection of documents of all kinds relative to this lady's treatment in hospital in order that he might search through them to see if he could find something which he could add to his pleadings, some matter of which he is at present unaware and the nature of which he cannot define. When pressed, Mr Caplan was not able to say which, if any, of the documents included in the records he required to make specific his own averments or his replies to any of the defenders' averments or explanations in answer."

The only opinion in Moore was given by Lord Cameron, with whom the other members of the Court agreed. He referred to Boyle and confirmed that it laid down no new law nor did it profess to do so. He explained at 130:

"The court in Boyle made it clear that at the stage of an open record a party can obtain a diligence should he be able to show that the documents in the hands of a third party or of his opponent are required to enable him to make his own averments more specific or to meet a call at the hands of his opponent for further specification, or that their production is necessary to enable him to make adequate reply to his opponent's answers."

The effect of the enactment of section 1 (2) of the Administration of Justice (Scotland) Act 1972, Lord Cameron went on, was simply to bring into operation at a stage prior to the lodging of an open record and subsequent to the commencement of proceedings the same mechanism which hitherto had only operated at the stage of adjustment. The grounds upon which the new power might be exercised were precisely those which were indicated in Boyle. Thus, at 131:

"In a case where, after the commencement of proceedings, a party seeks a diligence for the recovery of documents it is, in my opinion, for him to show that they are necessary for the purpose of enabling him to make more pointed or more specific that which is already averred or to enable him to make adequate and specific replies to his opponent's averments. In short, what he must show is that the documents sought to be recovered are required to serve the purposes of the pleadings as those pleadings stand at the time the diligence is sought."

[13] As I have indicated, the applicable law was not controversial. Mr Campbell was reluctant to accept that call 1 was a fishing diligence. He put stress on that portion of Lord Cameron's opinion in Moore when he said that recovery of documents would be ordered where "their production is necessary to enable him to make adequate reply to his opponent's answers." This was the situation in the present case. The reason that the defenders gave for not having delivered the pursuer's daughter was that one of the two theatres in the Maternity Hospital was closed. He could not respond to that unless he knew what was the basis for the closure and the whole background to it. Otherwise the pursuer would simply have to accept the defenders' ipse dixit: yes you needed a caesarean but there was no available operating theatre.

[14] In my opinion this is not a case where the pursuer has any need to reply to the averments to which my attention was drawn and, listening to Mr Campbell it did not appear to me that that was his purpose in seeking the diligence. At this stage there is no need for the pursuer to do more by way of pleading than to admit or not to admit that the second theatre was closed. The defenders say nothing about for how long it had been closed. If the pursuer considers the averments in question irrelevant, that point can be taken to debate. If the defenders' averments are allowed probation it will be for the defenders to prove them. Conceivably a diligence might be allowed at that stage for documents bearing on the fact of closure but the only issue raised in the present pleadings is that the second theatre was not available at the time when Dr Sarkar would otherwise have proceeded to caesarean section. The period and reasons for closure are not in issue. What Mr Campbell wishes to do is to investigate whether there is advantage in putting these matters in issue, not in any real sense to make an "adequate reply to his opponent's answers" but because he wants to make a new and very different case. To employ the language of Lord Cameron in Boyle, once Mr Campbell had recovered all the documents bearing on the closure of the theatre and whole background to it, as he wished to do, "he would then be able to discover if he had a case". That is fishing and, given the nature of our procedure, impermissible. It is a matter for the discretion of the Lord Ordinary to whom the application is made whether commission and diligence should be granted: Boyle supra at 78 and 84 but a discretion which must be exercised according to recognised principles. I refused call 1 on the basis that as a fishing diligence it offended against these principles.

[15] I would, in any event, have refused call 1 because of the terms in which it was drafted. The call was subject to detailed critical scrutiny by Mr Stephenson. He submitted that the call was on any view unduly wide, confused and, strictly speaking, unintelligible. In listening to Mr Campbell in reply I got the impression that, for him, Mr Stephenson's points did not really matter; what the pursuer was looking for should be reasonably apparent to the defenders' legal advisers and therefore what he was being met with was no more than idle cavilling. I disagree.

[16] A grant of commission and diligence is a warrant empowering the commissioner to act on behalf of the court and requiring havers to appear before him. The specification which requires to be lodged in process in terms of Rule of Court 35.2 (2) is intended to identify what it is that the commissioner is empowered to require the haver to produce. It therefore defines the scope of the powers conferred. It is incorporated by reference into the interlocutor which the court pronounces. It defines an entitlement to recover and an obligation to produce. It follows that it must be intelligible and that it must be precise.

[17] Call 1 is an excerpting call. Its structure is first to attempt to identify a body of documents which the haver, here the defenders, is required to produce to the commissioner and then to instruct the commissioner to extract or excerpt from that body of documents "entries showing or tending to show" a variety of things listed, in the amended call, in paragraphs (a) to (l). There are therefore two steps to be taken in what is a sifting process, first the assembly of "all records, plans, memoranda, staff duty rotas, protocols, policies, and other documents ...relating to Paisley Maternity Hospital, Paisley and the Royal Alexandria Hospital"; and, second, the extracting from this body of documents of the entries showing or tending to show certain things. Mr Stephenson referred to that part of call 1 that relates to the first step, the part addressed to the haver, as the "preamble" and I shall adopt that term. On the face of it the preamble included a great deal of material "relating" to two large hospitals, only in one of which the pursuer had been cared for up to the time of Kirsty's delivery. While, logically, the preamble has to be understood without reference to what the commissioner is to be asked to excerpt, the absence of any reference in the excerpting provisions to the Royal Alexandria Hospital (paragraph (m) of the call as originally presented was amended by deletion) would suggest that diligence to recover the records of that hospital would be unnecessarily wide. The material to be sifted through was old in that it was that "held ...for the period 1 January 1990 to 16 February 1990". The preamble is wide. It begins with the words "all records". The documents to be recovered included "policies", not an immediately understandable expression when referring to documents. Mr Campbell wished to dispel any suggestion that lorry-loads of documents would have to be produced in terms of the preamble as scaremongering on the part of Mr Stephenson (notwithstanding Mr Campbell's expressed wish to explore the "whole background" of closure of the ward) but even taking "for the period 1 January 1990 to 16 February 1990" to be intended to be restricted to what was generated or was otherwise current in that period (which is only an assumption on my part), the preamble would appear likely to cover a very substantial quantity and wide variety of material, much of which can have little or nothing to do with events during the early morning of 16 February 1990. Merely by way of illustration of the apparently unnecessarily wide scope of the preamble, it looks for all staff rotas of both hospitals whereas, in terms of amended call 1 (a), the commissioner will only be asked to excerpt entries showing or tending to show the number, grade and identity of medical staff on duty in the maternity hospital from 00.00 to 0800 on 16 February 1990. The preamble is subject to another limitation. As amended, the preamble calls for documents, as I take it generated or current in the period 1 January 1990 to 16 February 1990, but only "in so far as relating to the care of the pursuer and her child, Kirsty Anne McLean, from the date of pursuer's admission to said maternity hospital on or about 11 February 1990 to the birth of her said child within said maternity hospital on 16 February 1990". The way in which the preamble was originally drafted gave rise to a confusion over what was later meant by "said period" which I would accept that the amendment successfully addressed. There remains the question as to what possible relevance has material which relates to the care of the pursuer prior to 16 February 1990 but, more critically, difficulty over knowing what is meant by "relating to the care" has the result that it is by no means clear as to how what on the face of it looks to be intended as a limitation to the width of the call in fact operates. It is to be remembered that the pursuer already has recovered or has been voluntarily provided with her and Kirsty's medical records, in other words everything with their name on it or which is otherwise clearly attributable to their care. The pursuer is entitled to such records and will no doubt have ensured that that is what she has got. I would suppose these records to have been relatively easy to access, being designed for rapid and reliable retrieval. What is sought to be recovered by the preamble is something more. Mr Campbell does not pretend to know what exists that might fall within his call. I rather doubt whether anyone else does. I see this as being illustrated by an answer given by Mr Campbell in the course of argument. Working backwards from the excerpting provisions (which is not a technique available to the haver) given the structure of the call and what is sought to be excerpted, I asked whether a hypothetical minute of a hypothetical estates committee of the defenders in respect of a meeting in early January 1990, more than a month before the pursuer's admission to Paisley Maternity Hospital, at which a leak to the roof of Theatre 2 was discussed with a view to some sort of action being taken, would come within the definition "relating to the care of the pursuer and her child", Mr Campbell answered in the affirmative. How is the haver to know that? How is anyone to know that? By reason of choosing to draft the preamble in this way, it appears to me that the difficulty with the call is not only that it is too wide but that it is also unintelligible.

[18] I turn to the terms of the excerpting provisions which are to be found in paragraphs (a) to (l) of call 1. As I have already indicated, I see them as part of the mechanism of a fishing diligence and they are objectionable on that ground. Moreover, as all relate to material to be sifted from what is sought to be covered by the preamble, if the preamble is objectionable by reason of its drafting, so are they. I confine myself at this stage to such points as Mr Stephenson took in relation to their particular terms. I would see Mr Stephenson's objections to (a) to (d) as having been cured by Mr Campbell's amendment in the course of the hearing. Mr Stephenson did not consider paragraph (f) as being problematic per se. As to paragraph (g), the relevance of the number of patients in labour throughout the period 11 to 16 February 1990, as opposed to the early hours of 16 February, and even then only in so far as they required the attention of an obstetrician (a minority one would have hoped), was unclear. Mr Stephenson submitted that the "cause" of closure of the operating theatre was irrelevant. I am not sure if that is quite right. No one, including Mr Campbell, knows what sort of case Mr Campbell might make if he were to have the opportunity to view all material retained by the defenders from 1990. One might guess, however, that he would be astute to make what he could of any perceived inefficiency on the part of the defenders in their management of the Maternity Hospital. It is often possible to see inefficiencies on the part of others, particularly when one has the benefit of hindsight. Depending on what aspect of the management of the hospital Mr Campbell proposed to put under critical scrutiny, the "cause" of the closure of the operating theatre might be very relevant, depending, of course, on just what meaning Mr Campbell chose to ascribe to that notoriously protean word "cause". It is here that I consider paragraph (g) runs into difficulty. Any outcome is the result of any number of inter-relating causes. For my part, if I were in the position of the commissioner, I simply would not know what was intended to be comprehended by the expression "showing or tending to show the cause of any such closure". Mr Stephenson argued that paragraph (h) was, at best, redundant. The defenders are a statutory body. They can only know something through their officers or employees. The defenders knew of the closure of the theatre the instant when a responsible employee declared it closed and the need for its closure the instant when a leak in the roof (if that was the reason) became apparent to an employee. I accept that is true, although again speculating as to the case Mr Campbell might hope to be in a position to make, I can see that the length of time that the theatre had been closed prior to 0500 on 16 February 1990 might well be relevant; the longer the closure the easier to say that there was fault (or, on the other hand, not). Agreeing with Mr Stephenson, I consider that the reference in paragraph (i) to "should of or would have been made apparent to Dr Grewal and the other medical and midwifery staff in said maternity hospital" is quite inappropriate. How the commissioner is to ascribe deemed as opposed to actual knowledge on the part of either a named individual or entirely unspecified hospital staff (who may or may not have been on duty) simply escapes me. Mr Stephenson suggested that paragraphs (j) to (l) also presented problems of interpretation over and above those inherent in the preamble. I agree that what a statutory body "anticipated", to quote the language of paragraph (j), is problematic, but what is being looked for are documents with any reference to the period of future time during which it was considered that the theatre would probably be closed. That seems to me to be quite intelligible as are the references to contingency plans in paragraphs (k) and (l). However, the excerpting provisions are subordinate to the preamble. That some of them might be operable is neither here nor there if the preamble is objectionable, as I consider it to be.

[19] A factor when deciding to grant commission and diligence are the costs in the allocation of resources and general inconvenience that are to be imposed on the haver. Such costs are seldom fully recoverable and here they are unlikely to be. Against that has to be balanced the other interests involved. Here the sum presently sued for is only £100,000 but that is clearly an under-estimate of the claim on full value. I have proceeded on the basis that the claim may be valued in millions of pounds. Nevertheless, in coming to the view that call 1 was in any event too wide, I thought it appropriate to have regard to the practicalities likely to be involved in searching through old records covering a wide variety of the defenders' activities. On any view what was sought was not material which was readily at hand. A conscientious search for what the call might be aiming at would be likely to be time-consuming.

[20] Mr Stephenson took the point that this was not the proper stage at which to consider an application for commission and diligence. The pursuer's Minute of Amendment had been received but no amendment had as yet been allowed. What was proposed in the Minute was a rewriting of the pursuer's case. It was not yet clear what the pursuer intended her case to be. Should the specification be judged by reference to the Closed Record which seemed about to be superseded or by the Minute of Amendment which might or might not reflect the form that the pursuer's pleadings might eventually take? The point was, in my opinion, a valid one; although there were more compelling reasons for refusing call 1 in the specification. Had there been no other reason to refuse the pursuer's motion, I would have had to give this point more careful consideration than I did. I would see the weight to be given to it to depend on circumstances. Where there is real doubt as to the case a party seeks to make it may be better to wait until the process of amending the record has been completed. On the other hand, where a party reasonably requires to recover documents in order to make his case more specific it may well be appropriate to grant commission and diligence in the course adjusting a Minute of Amendment and Answers.

[21] In any consideration of the views that I have expressed, I would not wish it to be thought that I have forgotten the optional procedure which is provided by Rule of Court 35.3. I do not see it as making any difference. Logically an excerpting call seems a poor candidate for the optional procedure in that it is to be presumed that excerpting would only have been provided for if it had some purpose and whatever that was, it would be lost if un-excerpted documents were produced (although it is the case that provision is made for extracts in RCS 35.3(10)) but there may be circumstances where both the party who obtained the order is prepared to trust not only the soundness of the haver's judgment but also the reliability of the haver's certificate, and the haver considers the optional procedure to be likely to be less troublesome than a commission. However, the problem of a haver understanding what is meant by the specification remains and, in any event, when a specification is objected to, as here, on the ground that it is unwieldy or unintelligible, the party objecting to it is entitled to have the matter adjudicated on the basis that the specification is to be read literally and the commission and diligence will be executed in standard form.