Form 64.6

Rule 64.6

Form of order of court in procedure for recovery of documents under Chapter 64

ORDER BY THE COURT OF SESSION

In the Petition

of

[A.B.] (designation and address)

Petitioner 

against

[C.D.] (designation and address)

Respondent 

Date:  (date of interlocutor)

To:  (name and address of party or parties or named third party haver, from whom the documents and other property are sought to be recovered)

THE COURT having heard Counsel and being satisfied that it is appropriate to make an order under section 1 of the Administration of Justice (Scotland) Act 1972;

APPOINTS the Petition to be intimated on the walls of the court in common form and to be served upon the person(s) named and designed in the Petition;

APPOINTS (name and designation of Commissioner) to be Commissioner of the court;

GRANTS commission and diligence;

ORDERS the Commissioner to explain to the haver on executing the order-

(1)	the meaning and effect of the order;

(2)	that the haver may be entitled to claim that certain of the documents and other property are confidential or privileged;

(3)	that the haver has a right to seek legal or other professional advice of his choice and to apply to vary or discharge the order;

and to give the haver a copy of the Notice in Form 64.9 of the Rules of Court.

GRANTS warrant to and authorises the said Commissioner, whether the haver has allowed entry or not-

(1)	to enter, between the hours of 9am and 5pm on Monday to Friday, (or where the court has found cause shown under rule 64.11(1), otherwise specify the time) the premises at (address of premises) and any other place in Scotland owned or occupied by the haver at which it appears to the Commissioner that any of the items set out in the statement of facts in the application to the court (the “listed items”) may be located;

(2)	to search for and take all other steps which the Commissioner considers necessary to take possession of or preserve (specify the listed items);

(3)	to take possession of and to preserve all or any of the listed items and to consign them with the Deputy Principal Clerk of Session to be held by him pending the further orders of the court;

and for that purpose,

ORDERS the haver or his servants or agents to allow the Commissioner, any person whom the Commissioner considers necessary to assist him, and the Petitioner’s representatives to enter the premises named in the order and to allow them-

(1)	to search for the listed items and take such other steps as the Commissioner considers it reasonable to take to execute the order;

(2)	(if appropriate) to provide access to information stored on any computer owned or used by him by supplying or providing the means to overcome any and all security mechanisms inhibiting access thereto;

(3)	to remain in the premises until such time as the search is complete, including allowing them to continue the search on subsequent days if necessary;

(4)	to inform the Commissioner immediately of the whereabouts of the listed items;

(5)	to provide the Commissioner with a list of the names and addresses of everyone to whom he has given any of the listed items;

and not to destroy, conceal or tamper with any of the listed items except in accordance with the terms of this order;

FURTHER AUTHORISES (specify the representatives) to be the sole representatives of the Petitioner to accompany the Commissioner for the purpose of identification of the said documents and other property.

SCHEDULE TO THE ORDER OF THE COURT

Undertakings given by the Petitioner

The petitioner has given the following undertakings-

1.	That he will comply with any order of the court as to payment of compensation if it is subsequently discovered that the order, or the implementation of the order, has caused loss to the respondent or, where the respondent is not the haver, to the haver.

2.	That he will bring within a reasonable time of the execution of the order any proceedings which he decides to bring.

3.	That he will not, without leave of the court, use any information, documents or other property obtained as a result of the order, except for the purpose of any proceedings which he decides to bring and to which the order relates.

(or as modified under rule 64.4)