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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 85
CA81/22
CA82/22
OPINION OF LORD SANDISON
In the causes
(FIRST) THORNTONS INVESTMENT HOLDINGS LIMITED; (SECOND) MATHESON
CONSULTING LIMITED; and (THIRD) MATHESON FINANCIAL CONSULTING
LIMITED
Pursuers
against
RORY MATHESON
Defender
Pursuers: MacColl, KC et Ower, KC; DWF LLP
Defender: McIlvride, KC; Blackadders LLP
and
(FIRST) THORNTONS INVESTMENT HOLDINGS LIMITED; (SECOND) MATHESON
CONSULTING LIMITED; and (THIRD) MATHESON FINANCIAL CONSULTING
LIMITED
Pursuers
against
(FIRST) MARGARET MCINTOSH; and (SECOND) GRANITE WEALTH CONSULTING
LIMITED
Defenders
Pursuers: MacColl, KC et Ower, KC; DWF LLP
Defenders: Tosh; Mackinnons Solicitors LLP
29 November 2023
Introduction
[1]
In these actions the pursuers, a group of companies involved in the business of the
provision of investment advice and financial planning, seek remedies against firstly
2
Rory Matheson, one of the former owners of the third pursuer, and secondly
Margaret McIntosh and Granite Wealth Consulting Limited. Mrs McIntosh is a former
employee of the third pursuer and Granite Wealth is a company owned by her.
Mr Matheson and his wife sold their shares in the third pursuer to the pursuers' group in
December 2020 and entered into certain restrictive covenants aimed at preventing them
from competing with the business of the third pursuer, or attracting away its clients, for a
three-year period after the sale. Mr Matheson also remained employed by the third pursuer
on terms which prevented him disclosing confidential information to others during and
after his employment. Mrs McIntosh's terms of employment likewise contained anti-
competition and confidentiality provisions.
[2]
In April 2022 Mrs McIntosh gave notice of her intention to resign from her
employment with the third pursuer. Chris Forde, Head of Financial Planning for the first
and third pursuers, claims to have received in the following month a package in the mail
from an anonymous sender enclosing a copy of an email between Mr and Mrs McIntosh
suggesting that Mr Matheson was attempting to put Mrs McIntosh in touch discreetly with
an accountant in connection with a proposal to set up a new company for her to carry on
business in the financial services sector. Later in May 2022, Stephen Webster, Chief
Executive Officer of the first and third pursuers, claims to have received a further
anonymous package consisting of a note warning him that plans were well established to
transfer the third pursuer's clients to a new entity set up, funded and staffed by its then
employees, together with emails bringing to light the connection between Mrs McIntosh and
Granite Wealth and implying that Mr Matheson was providing that company's initial capital
by way of loan to her. Documents bearing to be a timeline and business plan for the new
enterprise were also enclosed, suggesting that it was proposed that other employees of the
3
third pursuer would in due course leave it and join the new venture, and that the third
pursuer's existing clients would be lured to that venture as soon as Mrs McIntosh's
restrictive covenants expired.
[3]
The pursuers then all petitioned this court under section 1 of the Administration of
Justice (Scotland) Act 1972 narrating that they intended to bring substantive proceedings
against Mr Matheson based on his alleged breaches of the restrictive covenants in his share
sale contract, and against Mr Matheson and Mrs McIntosh in respect of their alleged
breaches of their employment contracts, as well as against Granite Wealth, for damages or
an account of profits. The existence and nature of the anonymous material received by the
pursuers was laid before the court at that stage as supportive of the claim that the pursuers
had a prima facie case against Mr Matheson, Mrs McIntosh and Granite Wealth. The
pursuers sought the court's authority for commissioners of the court to enter the homes of
the Mathesons and the McIntoshes without prior notice, to search for and seize certain
material, and to deliver it to the custody of the court. The material in question was, broadly
speaking, any hard copy or electronic document containing information relating to the
business of the pursuers obtained by Mr Matheson or Mrs McIntosh in the course of their
employment by the third pursuer; information confidential to the second or third pursuers
(including client details, terms of business, financial information, and business, strategy and
marketing plans); the identities of any third parties to whom such confidential information
had been disclosed, and the nature of any such disclosure; the terms on which the
Mathesons had provided financial backing to the McIntoshes or Granite Wealth to facilitate
the establishment or operation of the latter; and generally any communications amongst the
Mathesons and the McIntoshes in connection with the incorporation of Granite Wealth, or
4
communications with the second pursuer's clients in connection with investment, wealth
management or financial planning services.
[4]
On 23 June 2022 the court granted the orders sought and "dawn raids" took place at
the homes of the Mathesons and the McIntoshes the following day. The events of, and
subsequent to, those "dawn raids" were not without controversy and are described in an
earlier opinion of the court, [2023] CSOH 63, 2023 SLT 985. The court subsequently gave
permission in principle for the material seized in the "dawn raids" to be used in evidence in
the forthcoming proofs in the present consequential substantive actions, subject to resolution
of the issues dealt with in this opinion. The pursuers wish to use the contents of the
anonymous packages and the material obtained by way of the "dawn raids" as part of their
cases. The defenders in both actions object to any such use, on the grounds that the material
in the anonymous packages was illegally obtained by the pursuers, or in any event was
confidential material to which a reasonable expectation of privacy pertained at common law
and in terms of Article 8 of the European Convention on Human Rights, and that therefore
the content of the packages, and any material obtained through their use, is inadmissible in
evidence. The matter came before the court for an evidential hearing so that the question of
the admissibility of the disputed evidence could be determined conveniently in advance of
the conjoined diets of proof in the actions.
Background
The evidence
For Margaret McIntosh and Granite Wealth Consulting Limited
[5]
Margaret McIntosh (48) swore an affidavit in which she stated that she gave notice
of her resignation from her employment by the third pursuer at its Aberdeen office on
5
4 April 2022. Attempts were made to persuade her to withdraw her resignation, but when it
became apparent that she was not going to do so, Mr Webster told her that things were
going to get nasty for her. On 10 May 2022 she was placed on gardening leave for the
remainder of her notice period and told to leave all keys, electronic devices and her work
mobile phone on her desk, which she did. Mr Webster had come up to the Aberdeen office
the next day.
[6]
In relation to the first anonymous package said to have been received by the
pursuers, the accountants AAB, who had been parties to the email chain contained in the
package, had informed her that they did not consider that their email systems had been
breached. She had seen a scan of the envelope containing the first package of material and
noticed that it bore a stamp which had not been franked. Her research indicated that the
stamp was one of a series entitled "Design Classics" issued in 2009 and long since out of
general circulation.
[7]
The second anonymous package included a draft business plan which had only been
shared by her with her husband, by way of email from her personal account to his. It had
not been printed. The envelope containing the second package had an underpaid stamp and
a postmark showing it was posted on 20 May 2022 in the AB12 postal area.
[8]
She had not been in the pursuers' offices since 10 May 2022, but on 19 May had had
lunch in Dundee with some of her former colleagues. She exhibited her bank statement
showing that on that day she had paid for the lunch at the Jute Café at the Dundee
Contemporary Arts Centre. On the same day, one of her former colleagues, Kelly Pitcairn,
had telephoned her and told her that Mr Webster had been in the Aberdeen office that
morning and had told her that a copy of an email between Rory Matheson and an
accountant had been found on a printer. While employed by the third pursuer,
6
Mrs McIntosh did not generally print things unless she was there at the printer to pick them
up, and Mr Forde did not in any event approve of material being left on printers.
[9]
Her husband Rob had discovered that his Gmail account had been the subject of
unauthorised third party access between March and May 2022, but no further information
was available. She would normally have accessed her personal email account using her own
personal laptop, though she might occasionally have logged in using the work laptop issued
to her by the third pursuer. She was unsure whether she would have fully logged out of her
account after doing so; generally, she just closed the browser without logging out. She had
previously purchased her personal laptop from the pursuers. It had had remote access
software allowing the pursuers' external IT consultant to carry out remote maintenance and
repair. That had happened frequently for two weeks in March 2022. Her colleague
Rhea Shearer had also been able to access the laptop remotely if provided with a code by
her. She was unsure whether any software left on the laptop could have allowed the
pursuers to access data on it. The pursuers had given inconsistent accounts of how they had
come by the anonymous material which they relied on.
[10]
In cross-examination, Mrs McIntosh stated that she was not accusing anyone of
having committed a crime. She had various qualifications in relation to the provision of
financial advice, but none in IT. She had known Mr Matheson since 2001 and had a close
working relationship with Ms Pitcairn. She had discussed the subject-matter of the hearing
in general terms with Mr Matheson, but not the content of any witness statements.
Mr Matheson was paying, unconditionally, for the defence of the action directed against her.
[11]
The email of 20 April 2022 which had come into the possession of the pursuers had
not been sent or copied to her at the time; it had been forwarded to her by her husband
(who was one of its original recipients) 6 days later. He was assisting her with some aspects
7
of her business plans, and had met AAB accountants with her. He was not qualified in IT
either, but had been able to check the logins to her email account and had told her that there
had been unauthorised access to it. The login records only went back 28 days from the point
of inspection as a result of the webmail provider's policy. No documentary evidence of the
intrusion existed, and no professional IT investigation had been instructed, since it was
understood that any evidence of the intrusion would no longer be available. The pursuers
had refused to make her work laptop available for examination.
[12]
She and her husband had noticed together that the first anonymous package had an
unfranked stamp. Counsel had assisted her internet researches into the date of issue of the
unusual stamp on the package. The second package had contained a version of her business
plan and a timeline, both of which she had drafted. She had sent those documents by email
to her husband for revision and comment, although he had expressed a preference that she
should find another employment position rather than set up her own business. She had not
at that stage invited Ms Pitcairn to join her business, although she had hoped that at some
stage that might happen. She had not been in contact with any other person working for the
pursuers about working for her business either. She hoped that Mr Matheson might join her
once his restrictive covenants were over. The timeline document showed the receipt of
monies from Mr Matheson, but those sums were from reward schemes he had set up and
committed himself to when he owned the third pursuer, and were not gifts provided for the
purposes of her new business.
[13]
She did not know the password to her husband's email account, and he did not
know the password to hers. One could only print at the pursuers' office by connecting to
their network. The printer was right outside her office. The laptop she had bought from the
8
pursuers had some programmes left on it. She was making no specific allegation about
anybody, because she could prove no such allegation.
[14]
Robert McIntosh (52), a solicitor since 1996, swore an affidavit in which he stated
that he had seen the email in the first anonymous package which had been sent from
Mr Matheson's personal account on 20 April 2022 to AAB accountants introducing
Mrs McIntosh to two individuals there, together with a reply from one of those individuals.
That email had been sent from Mr McIntosh's Gmail account to his wife's email account on
26 April at 10.53am. There was no obvious reason why either of them would have printed
it. AAB had told him that they had multi-factor authentication and it was therefore unlikely
that their email systems had been compromised. Investigations had revealed that it was
likely that there had been unauthorised access to his account and that of his wife, but no
further information was available. Mrs McIntosh may have used her work email account as
a back-up to her personal account.
[15]
The second anonymous package contained a copy of a draft business plan which had
only ever been emailed from Mrs McIntosh's private email account to his private email
account on 18 May at 17.44, so that he could proof read it. She had no longer been working
in the pursuers' office at that time.
[16]
In cross-examination, Mr McIntosh stated that he had no IT qualifications. He rarely
printed out emails; his wife did so more frequently than he did. He would have helped her
with her business had she gone ahead with her plans as intended. Clients would have come
from her established following.
[17]
Not long after these actions commenced, in July 2022, he had looked at the logins to
his email account and had noticed what appeared to be unauthorised access taking place
from locations in Milton Keynes and in the London area. He had no idea who might have
9
accessed his account or what might have been done. He had not taken any screenshots of
what he had seen. He had known by then that there was a live dispute before the court. He
had not contacted his internet service provider, Sky. He had approached Hotmail and
Gmail shortly afterwards and again in September 2023, but they could (or at least would)
not go back more than 28 days in looking at possible unauthorised access to email accounts.
He was not aware of that time limit when he had first seen evidence of the unauthorised
access. An IT professional who was a friend of Mrs McIntosh had been asked informally for
his views, but did not think that much could be done at that stage.
[18]
Kelly Samantha Pitcairn, who worked for the third pursuer until January 2023,
swore an affidavit in which she stated that on 19 May 2022, Mr Webster had been in the
pursuers' Aberdeen office and had raised with her the subject of Mrs McIntosh setting up a
company. He had told her that a trail of emails had been left on the printer in the office and
sent to Mr Forde. He explained that the emails indicated that Mr Matheson had introduced
Mrs McIntosh to an accountant and that she had set up a company. He asked her what she
knew about that, but she had said that all she knew was that Mrs McIntosh was considering
her options, and that she did not know anything about the emails. She had had to leave the
office then to travel to a working lunch in Dundee, so told Mr Webster that any further
queries would have to wait until the next day. No further queries had been raised then.
Jonathan Walkingshaw, another of the pursuers' employees, had been present during the
conversation.
[19]
When Mrs McIntosh was asked to go on gardening leave, she was asked to, and did,
leave all her IT equipment on her desk. It was then taken to Dundee and had gone by
18 May. Mrs McIntosh had subsequently handed in an iPad and a computer monitor which
she had used to work from home during the pandemic.
10
[20]
When the dawn raids took place on 24 June 2002, Mr Webster had shown her and
some other colleagues documents said to have been sent in anonymously, including an
email trail and a business plan, apparently in order to explain why the raids were taking
place. He had not said who he thought had sent in the anonymous material, but she and
Rhea Shearer had been asked if they had done it, which they both denied.
[21]
She had been notified in July 2022 that her personal Hotmail email account had been
compromised, with attempts being made to log into it from various places in the world,
including from Milton Keynes. She had had to change her password and turn on multi-
factor authentication.
[22]
In cross-examination, Ms Pitcairn stated that she was a colleague and friend of
Mrs McIntosh. She had been aware in the first quarter of 2022 that Mrs McIntosh was
considering the option of leaving the third pursuer's employment and setting up on her
own. Mrs McIntosh had not asked her to join that business.
[23]
When she worked for the third pursuer, incoming mail would be scanned to the
relevant client file or emailed to the appropriate financial advisor. Envelopes would be put
in the waste paper bin, or shredded. The hard copy correspondence might be sent to the
relevant staff member, or else might also be disposed of in the normal or confidential waste
bins.
[24]
She recalled clearly her conversation with Mr Webster on 19 May, including that that
was the date on which it happened. She had not told Mr Webster what she knew about
Mrs McIntosh's business plans out of loyalty to her.
[25]
The evidence of Rory Matheson, on his own behalf, was interposed at this point in
the hearing.
11
[26]
Rory Matheson (60) swore an affidavit in which he stated that on Wednesday
20 April 2022 he had emailed Brian McMurray at AAB, a well-known firm of accountants in
Aberdeen, copying in Mr McIntosh and Derek Mitchell, also of AAB. The purpose of the
email was to introduce Mrs McIntosh to AAB. It was not forwarded or copied to anyone
else. He had not consented to anyone else accessing or using the email. Mrs McIntosh was
put on garden leave from her employment by the third pursuer on 10 May 2022. When she
left the office that day, she had left all of her electronic devices, including her computer, on
her desk. They were to be uplifted, but he was not sure how long they were there before
that happened.
[27]
On 19 May 2022, Stephen Webster visited the Aberdeen office. Mr Matheson was out
seeing clients that day and when he returned to the office Mr Webster was there. He came
into Mr Matheson's office and without any introduction said, "I found this on a printer" and
showed Mr Matheson a copy of his own email to AAB dated 20 April 2022, placing it on the
desk in front of him. He did not say on which printer or in which office the email had been
found. He asked Mr Matheson what he had to say about it. Mr Matheson read the email
and confirmed it was from him. He explained that he had reached out to Mr Mitchell at
AAB as Mrs McIntosh had asked him as a colleague if he knew a good accountant.
Mr Matheson told Mr Webster that "I put her in front of one, that's what she asked. It will
be public knowledge, it will be on Companies House" or words to that effect. Mr Webster
was then briefly quiet. The conversation then progressed to the proposed changes to the
future working model for the third pursuer, of which Mr Matheson was not in favour. The
meeting ended with Mr Webster saying "you will spend the first two years of your
retirement in court" as he walked out of the door.
12
[28]
On further examination, Mr Matheson stated that he had not met Mr Webster on
10 May 2022; he had been out visiting a client in Ellon that morning and had not returned to
the office in the afternoon. His conversation with Mr Webster had taken place on 19 May.
Mr Webster had said that he had found the email from Mr Matheson to AAB on a printer, or
at least that someone had found it on a printer. Mr Matheson had said that Mrs McIntosh's
plans for a new business were public knowledge and the business could be seen on the
Register of Companies. He might have said that the name of the business was Granite
Wealth. He did not lie to Mr Webster. He was paying for Mrs McIntosh's defence to the
action because he felt a responsibility to her in consequence of selling his business to
Thorntons, forcing her to leave because of the unacceptable direction in which they wanted
to take the business, and to stop Thorntons getting the revenge which they were seeking
against her.
[29]
In cross-examination, Mr Matheson said that he had reported the pursuers to the
FCA because of what he felt were their unacceptable business practices. They should have
appreciated that that was going to happen. He did not like Thorntons because of the way in
which he and Mrs McIntosh had been treated. He had become aware of Mrs McIntosh's
plans in March or April 2022. He did not routinely check what information was available on
the Companies House website, but had assumed that the information about Granite Wealth
could be found there. He was unaware that Mrs McIntosh intended to use money which
had come from him to set up her business, or that she wanted him to join the business. She
had asked about, and was thus aware of, the duration of his restrictive covenants forming
part of the sale and purchase agreement for the third pursuer.
[30]
He was unaware of any evidence of hacking into any email account. He had a clear
recollection of his meeting with Mr Webster on 19 May 2022. The nature of Mr Matheson's
13
involvement with Mrs McIntosh was self-evident from the email which Mr Webster brought
with him into the meeting. Mr Webster had been disappointed, perhaps upset. The email
chain which Mr Webster had in his possession had been sent to Mr rather than
Mrs McIntosh because Mr McIntosh had said that he was going to be involved in the
financial side of the business. Mr Matheson had asked AAB to be discreet about
Mrs McIntosh's plans because Aberdeen was a metaphorical village, and she wanted her
plans kept quiet. He had mentioned that her employers would not want her to do what she
was doing.
[31]
Counsel for the pursuers having declined to offer any assurance that they would be
called on their behalf, the evidence of Chris Forde and Stephen Webster was adduced at this
stage on behalf of Mrs McIntosh and Granite Wealth.
[32]
Chris Forde (42) swore an affidavit in which he stated that he was the Head of
Financial Planning at the first and third pursuers, and an Independent Financial Adviser.
On 6 May 2022, an envelope addressed to him had been delivered to the pursuers' Dundee
office. He was working from home that day. The envelope was collected from the mail
room by Victoria Winter, one of the pursuers' administrative support staff. At 10.34 on the
same day he received an email from her. The subject of the email read: "new client enquiry".
The body of the email stated: "Good morning Chris, please find attached which arrived in
the post today for your attention. Many thanks Vicky". Attached to the email was a
document which appeared to be a scanned copy of a series of emails between
Rory Matheson and Derek Mitchell and Brian McMurray, both from the accountancy firm
AAB, which had been forwarded to Mrs McIntosh by her husband Robert, who was also
included in the chain. The subject of the emails in the attachment was also "New client
enquiry". He scrolled down to the bottom of the thread to read the chain from the start.
14
When he first read the emails, it was not clear how this could be a new client enquiry for the
pursuers, as Mr Matheson referred to "clients requiring tax advice". It soon became
apparent that it was Mr Matheson introducing clients to somebody else. From the emails he
inferred that a telephone conversation had taken place between Mr Matheson and
Mr Mitchell. The individuals initially referred to as "clients" subsequently changed to
"colleagues", and then to Mrs McIntosh by name. He wondered whether the pack had been
sent to him in error and contacted Ms Winter to ask her to scan the envelope and send it to
him by email, which she did at 11.00. The envelope was marked "PRIVATE &
CONFIDENTIAL ADDRESSEE ONLY" and was clearly addressed to him. There was
nothing on the envelope which identified the sender and there was no covering letter. He
did not initially appreciate that the stamp on the envelope was not franked, but that was not
uncommon. He had no reason to doubt Ms Winter's email stating that it had arrived in the
post. It never occurred to him to ask that the original copy of the envelope be kept.
[33]
He called Mr Webster, who was in the Edinburgh office that day, and told him that
he had received a pack in the post which he thought Mr Webster should see. At 11.04, he
emailed the scanned copy envelope and copy emails to Mr Webster. Ms Winter had put the
actual envelope and its contents in the confidential waste bin to be shredded that day as part
of the routine procedure for disposal of documents. He would have retained a copy of the
envelope and its contents had he been in the office that day, as they would have been
handed to him rather than being scanned.
[34]
On 10 May 2022, he was scheduled to work in the Aberdeen office. After lunch, he,
Mr Webster and Mr Matheson met, and they tried to find out from Mr Matheson, without
expressly asking him, whether he knew anything about the contents of the package
Mr Forde had received on 6 May. Mr Webster led the conversation with Mr Matheson,
15
which was quite general in its terms. No specific questions were asked about the package
and nothing was shown to Mr Matheson; it was more of a fishing exercise in terms of what
Mrs McIntosh was planning and doing. Mr Matheson did not say anything about the
prospect of Mrs McIntosh setting up a new business and in fact said very little. It was
decided that the information received in the package was inconclusive in relation to
Mr Matheson's involvement and that he should be given the benefit of the doubt.
[35]
On 27 May 2022, Mr Webster informed him that a further anonymous package had
been sent to the Dundee office. Mr Forde assumed the second package was addressed to
Mr Webster because it would have appeared to an outsider that no action had been taken on
receipt of the first. He had no idea who the packages were from. He thought that the set of
documents in the first package had perhaps been picked up off the printer from the office in
Aberdeen, having been sent to that printer in error. If one was working from home and
printed a document, it would print to the default office printer unless that was changed.
The Aberdeen printer could not be printed to remotely so the next time one connected to the
network in the office, the prints stored in the computer memory started to print out straight
away. For this reason, he thought that the person who posted the package would have been
someone in the Aberdeen office, or someone from the Dundee office who was visiting the
Aberdeen office, and who had found the documents on the printer. However, he considered
that someone from Dundee would have simply handed the information directly to him. The
second package contained too much information to have been printed in error to the
Aberdeen printer. He therefore thought that someone involved in Mrs McIntosh's business
plan who did not feel comfortable with it had decided to whistle-blow on her planned
actions.
16
[36]
On further examination on behalf of Mrs McIntosh and Granite Wealth, Mr Forde
stated that on receiving the anonymous package addressed to him, he did not notice
anything odd about it immediately, but came to realise later, it having been brought to his
attention, that the stamp on the envelope had no postmark. He could not remember if he
had mentioned that to Mr Webster. There was no covering letter. He could not recall when
Mrs McIntosh had been put on gardening leave; perhaps it was the end of April 2022. He
recalled, from looking at his diary that the conversation which Mr Webster had had with
Mr Matheson happened on 10 May, but accepted that he might be wrong about that. It had
not been on 8 May, as he had previously mistakenly said. His legal advisors had pointed
out that that was a Sunday. He did not think that Mrs McIntosh had been in the office on
the day it happened. The conversation had been a fishing expedition on Mr Webster's part,
to try to find out what Mr Matheson knew, but he was giving nothing away. Mr Webster
had not become annoyed or irritated.
[37]
In cross-examination on behalf of Mr Matheson, Mr Forde re-iterated that he thought
that the conversation between Mr Webster and Mr Matheson had taken place on 10 May.
Mr Matheson might have been out of the office that morning, but could have returned there
later.
[38]
The printer in the Aberdeen office only printed when the computer requesting the
print was connected to the office Wi-Fi network.
[39]
As to the second anonymous package, received by Mr Webster, he assumed that it
must have come from someone involved in Mrs McIntosh's plans. He did not believe that
the contents of that package had only ever been shared between the McIntoshes themselves.
He had no idea whether their email accounts had been hacked or not. The two packages
appeared to have been sent by the same person, as the name of the addressee on each
17
envelope had been asterisked at start and finish, which seemed unusual. The second
package was postmarked on 20 May in the Portlethen area. Mr Webster had been in
Aberdeen on 19 May.
[40]
In cross-examination on behalf of the pursuers, Mr Forde stated that he assumed that
the packages had come by post, and that he had no knowledge of who had sent them. He
had never participated in hacking, and had no knowledge of any other employee of the
pursuers having done so either.
[41]
Stephen James Nicholson Webster (57) swore an affidavit in which he stated that he
had been the Chief Executive of the first and third pursuers for nine years. On 6 May 2022,
Mr Forde had received an anonymous package by post. Mr Webster was in the pursuers'
Edinburgh office at the time and Mr Forde sent him an email at 11.04 which included the
scanned copies of the envelope which had been received and what it contained. The
package contained emails dated April 2022 between Mr Matheson, AAB Accountants, and
Mr McIntosh. Victoria Winter, an administrative assistant who had joined the pursuers on
4 April 2022, had picked up the mail from the mailroom that morning and opened the letter
addressed to Mr Forde in his absence. She then scanned the contents directly to Mr Forde
and he forwarded them on to Mr Webster the same day. The emails indicated to
Mr Webster that Mrs McIntosh might have been setting up her own business and that
Mr Matheson was apparently assisting or advising her on that. It was clear from reading the
emails that Mr Matheson was aware of Mrs McIntosh's plans. In fact, the wording was quite
"cloak and dagger" by suggesting that any meeting should be held on "neutral ground".
That did not seem to chime with the situation of someone who just looking for tax advice, as
Mr Matheson had suggested in his first email to Mr Mitchell at AAB on 13 April 2022.
18
[42]
Mr Webster immediately emailed Scott Milne, chairman of the board of the third
pursuer, and copied Chris Byrne, a corporate solicitor with Thorntons Law LLP who had
overseen the purchase of the third pursuer, into the email. That email was sent at 11.26 and
at 11.36 Mr Webster emailed all the third pursuer's board members to draw the matter to
their attention. At that time, the board felt that the information received was not conclusive
about Mr Matheson's intentions and gave him the benefit of the doubt, trusting that his
involvement amounted to no more than assisting a colleague whom he respected and who
had contributed to the success of his business in a potential new venture.
[43]
He met with Mr Matheson on 10 May, when he was attending a leaving lunch in
Aberdeen. He had printed the scanned contents of the letter and taken them with him to
Aberdeen. He read them over again and put them back in his bag and went with his
notebook to meet Mr Matheson in his office. They would typically meet every time
Mr Webster went to Aberdeen from his base in Dundee if Mr Matheson was present in the
office, usually about 11am. Before receiving the first anonymous communication on 6 May,
Mr Webster had hoped that Mr Matheson would be on side to protect the business from
attempts by Mrs McIntosh to solicit the pursuers' clients in whatever new role she might
secure. However, he now had material indicating that Mr Matheson was actively assisting
her in setting up a company which appeared to be in direct competition with the third
pursuer. That was the focus of his discussion on the morning of 10 May 2022. When he
asked Mr Matheson questions on that day, Mr Matheson denied having any knowledge of
Mrs McIntosh's intentions or of any plans that she might have had, said that he did not
know what her intentions were, that he had not spoken to her, and that he did not know
what she was doing. He said that he was not that close to Mrs McIntosh. Mr Webster knew
19
all those answers were lies. The meeting lasted around 20 minutes. Mr Webster was
annoyed as he left the room and said "it's amazing what can get left on a printer".
[44]
He had wondered who had sent the package. There was no covering note. He had
considered whether it might be someone working in the office, such as Kelly Pitcairn,
Andrew Park or Rhea Shearer. It had been Mr Matheson's personal email address on the
enclosures. It was possible that Mr Matheson had printed the email in the office, forgotten
about it and then someone in the office had picked it up from the printer. Mr Webster had
assumed that whoever had picked it up and read it had decided to send it to Mr Forde.
Neither Mr Webster nor Mr Forde had asked anyone specifically if they had sent it.
[45]
The only way to get mail from Aberdeen to any of the other offices of the pursuers
was by post or in person, there was no internal mail system. The envelope had no postmark,
so it was either posted but had not been franked, or it was delivered by hand. If it had been
hand-delivered it would probably have been handed into the reception of Thorntons Law
LLP and sorted there.
[46]
After the meeting on 10 May, he did not recall seeing Mr Matheson again or
discussing the matter with him. The general view amongst the members of the pursuers'
boards was that the package was not a smoking gun and that they would simply have to
work hard on the relationship with Mr Matheson. Advice had been sought from Mr Byrne
and from Debbie Fellows, an employment solicitor at Thorntons Law LLP, and they had
been provided with the employment contracts of Mr Matheson and Mrs McIntosh for their
assessment. Scott Milne had met separately with Mr Matheson to discuss Mrs McIntosh's
departure.
[47]
On 27 May 2022, Mr Webster was present in the Dundee office, and had attended a
weekly operations board meeting and a planning meeting with Mr Forde. Following that
20
meeting, he returned to his office at around 10am to find that an envelope had been placed
on his desk. Bethany Steven was covering the mail duties that day. She sorted the mail and
put items addressed to Mr Webster on his desk given his presence in the office that day.
The envelope was marked "STRICTLY PRIVATE & CONFIDENTIAL/ADDRESSEE ONLY"
and the postage had been underpaid by £1.50. The envelope was an A4 size and the Royal
Mail had placed a note on the front outlining the underpayment. He opened the envelope
and within it was a typewritten covering note, which did not identify the sender. The
covering note stated:
"Stephen, You have rats in your midst, with plans well established to transfer clients
purchased in good faith by Thorntons to a new entity, being set up, funded and
staffed by current employees. Defend your business, before it disappears."
Also contained within the envelope were copies of emails between Mrs McIntosh, her
husband and representatives of AAB, dated May 2022. There was also a 24-page document
entitled "Business Plan" for a company called Granite Wealth Consulting Limited and a
document entitled "Timeframe January 2022 to December 2022", which narrated the
proposed steps to be taken in the setting up of Granite Wealth. Mr Webster did not know
the source of the two anonymous packages.
[48]
Having read the contents of the copy emails and documents, he asked for the
documents to be scanned and at around 11.30am he shared the information with Mr Milne
and copied in the other members of the first pursuer's board as well as Mr Forde and
Mr Byrne. The information was discussed by the board on 15 June 2022. Litigation
appeared to be pending, and he asked the pursuers' IT department to monitor the IT
activities of Mr Matheson and Mrs McIntosh. He was made aware by IT that in around
November 2021 both Mr Matheson and Mrs McIntosh had arranged for the telephone
numbers of their work mobile phones, supplied to them by the third pursuer via 02, to be
21
transferred to personal mobile devices. That was done without the knowledge or consent of
the management team. The mobile numbers belonged to the third pursuer and were used
by clients to contact Mr Matheson and Mrs McIntosh. He could only assume that they had
done that so that they could still receive calls from clients after they had left the third
pursuer. IT had been asked to review their diaries to see who they had recently met with.
It was standard procedure (as recommended by the FCA) to record the telephone calls of
fee-earning staff. IT reviewed, at random, some calls from each of Mr Matheson,
Mrs McIntosh and Kelly Pitcairn (who had been mentioned in the package) to see if they had
said anything to any client about the plan. However, at no stage had there been any
thought, discussion or intention to try to gain access to their computers. He had spoken to
the pursuers' outsourced IT providers, who had confirmed that they did not use any
software which allowed any of their clients to undertake that sort of activity or anything like
it. The IT provider could have remote access for problem-solving purposes but only with
the consent of the user as they sat in front of their computer. No tracking software was
installed on the PCs. The only software used was for security and to ensure non-permitted
websites were not accessed. When Mrs McIntosh bought her laptop from the third pursuer,
all of the pursuers' software would have been removed by the outsourced IT provider.
[49]
On further examination on behalf of Mrs McIntosh and Granite Wealth, Mr Webster
stated that he had been surprised when Mrs McIntosh resigned on 4 April 2022, and was
troubled about the future security of the business. Clients could leave with her, and she had
not disclosed her intentions. He had first seen the email chain dated 20 April 2022 amongst
Mr Matheson, AAB and Mr McIntosh at around 10am on 6 May. He had discussed it with
Mr Forde and informed the chair of the board. The board members had wanted to meet as
soon as possible, and to consult the lawyers who had advised in the acquisition of the third
22
pursuer. He, in conjunction with his HR manager, had arranged for Mrs McIntosh to be put
on gardening leave on 10 May, as soon as she had completed some work in progress. He
had routinely attended a leaving lunch for Julie Rennie, an employee of the third pursuer,
on that day.
[50]
The contents of the second package, received on 27 May, had been judged more
serious in nature. It appeared to have been posted in a letterbox (because the stamp was
underpaid) at Portlethen. He thought he had been in Aberdeen on 19 May. Mr Forde had
recently reminded him of that; Mr Webster was not good at keeping diary notes. He had
not been there between 10 and 19 May, nor between 19 and 23 May. He had not posted the
second package to himself. After receipt of the second package, the board met, discussed
various options, and decided to take legal action. The compliance manager had spoken to
the regulator after Mrs McIntosh's suspension.
[51]
In cross-examination on behalf of Mr Matheson, Mr Webster conceded that it could
have been 19 May when he met with Mr Matheson. He was not aware of what
Mr Matheson had been doing on 10 May. He considered that Mr Matheson was being
dishonest with him during the conversation, although he was not an expert in body
language. He had not said to Mr Matheson that he had found the email chain of 20 April
2022 on a printer, and indeed had never said that it had been found on a printer to anyone,
including Ms Pitcairn, although that might have been his supposition at the time. He had
not produced the email chain at the meeting. He had not been angry; that was not his style.
He had not said that Mr Matheson would spend the first two years of his retirement in
litigation.
[52]
In cross-examination on behalf of the pursuers, Mr Webster stated that he had not
sent either of the packages, and did not know who had. He had no idea how the sender had
23
obtained the material in the packages. He had not carried out any hacking, nor was he
aware of anyone who had.
For the pursuers
[53]
Bethany Steven (23) affirmed to a witness statement in which she said that she was a
business support administrator with the first pursuer. As part of her normal duties, she
collected the mail from the mailroom and distributed it to the relevant people. There was no
formal written policy or procedure document to be followed in this regard; the process had
just been explained to her. The usual protocol was that all mail would be opened, and if it
was addressed to a specific person it would be scanned into the system and the scan sent to
that person. If there was no name on the envelope, it was scanned in and sent to the general
administration team.
[54]
On 27 May 2022, at around 9.30am, she had routinely gone to the mailroom at the
Dundee office to collect the pursuers' mail. In amongst the mail was an envelope addressed
to Mr Webster marked "STRICTLY PRIVATE & CONFIDENTIAL/ADDRESSEE ONLY".
Because of that wording, she treated the envelope differently to everything else. As
Mr Webster was in the office that day, she took the envelope to his office and left it on his
desk. Most mail went, after having been scanned, into the confidential waste bin, which was
emptied monthly. However, this particular item did not go into that bin, but was left on
Mr Webster's desk.
[55]
Victoria Winter (32) likewise affirmed that she had been an office administrator for
the first pursuer since April 2022. As part of her normal duties, she collected the mail from
the mail room and distributed it to the relevant people. Bethany Steven covered for her
when she was off. The general procedure with the mail was that when it came in, unless
24
told otherwise, she opened, scanned and emailed it to the relevant named person or to the
administration team. There was, however, no rigid procedure to be followed and the
process was down to common sense and discretion.
[56]
At approximately 9.30am on 6 May 2022, she went to the mailroom to collect the
mail. Amongst the mail was a brown envelope addressed to Mr Forde and with "Private
and Confidential Addressee Only" handwritten on it. She opened the letter and scanned it.
She emailed the document inside to Mr Forde at around 10.28am. It was a copy of an email
trail named "New Client Enquiry". She thought that it related to a new client query, which
would go to Mr Forde in any event. At 10.53 she spoke to Mr Forde, who asked her to scan
the envelope and send the scan to him, which she did at 11.00. She then put the envelope
and the document into the confidential waste bin, which was normal procedure once
something had been scanned and actioned. The confidential waste bin was emptied every
month, but she had the key to the bin and so documents could be retrieved before they had
been collected. She did not recall whether there had been any discussion about retrieving
the envelope. Mr Forde had called her again at 11.08 and asked if there was anything else in
the envelope; she replied that there was not. The scan of the envelope showed that the
envelope had a stamp with a bus on it. She had not noticed at the time that the stamp had
not been franked, although Mr Forde had mentioned that to her recently. She did not at the
time consider that there was anything particularly unusual about the package.
Submissions
[57]
On behalf of Mr Matheson, senior counsel submitted that the pursuers sought to
found in evidence on (i) copy emails and other documents which they maintained were
posted to them by an anonymous source and (ii) further documents recovered as a result of
25
the "dawn raids". The copy emails said to have been received by the pursuers from the
anonymous source included email correspondence between Mr Matheson (using his private
email account) and AAB between 13 and 20 April 2022. Mr Matheson had copied
Mr McIntosh into his email to AAB on 20 April. He had not provided copies of the email
correspondence to any other person, nor had he consented to any other party having access
to his email account or to the emails founded upon by the pursuers. It was evident that that
the email chain in question had been extracted from the personal email account of one or
other of the McIntoshes as the last email in the chain, dated 26 April 2022, was from
Mr McIntosh to Mrs McIntosh only. Nor was it at all likely that the emails had been
inadvertently sent by Mrs McIntosh to a printer at the pursuers' Aberdeen office and printed
when she was next in the office and had connected her laptop to the pursuers' systems. That
was an improbable occurrence given the confidential nature of the emails. Even if
Mrs McIntosh had wanted to print copies of the emails, which was unlikely given that they
simply effected an introduction to AAB, she would not have been so careless as to send
them to the office printer by mistake and then, when they did not print out where she
expected them, have failed to be present at the office printer to collect them when she next
connected to the office network. Further, the contents of the second batch of documents sent
anonymously could reasonably be inferred to have been obtained at a later date than the
email chain in the first package since there would have been no reason for the sender, who
evidently entertained a considerable antipathy to Mr Matheson and Mrs McIntosh, to have
kept them out of the first package dated 6 May 2022 had they already been in his or her
possession. However, the second package was not posted, according to its postmark, until
19 or 20 May, and Mrs McIntosh had been on gardening leave from 10 May, from which
date she had not been connected to the office network and could not have triggered the
26
printing of documents inadvertently sent to the office printer. That left no realistic
explanation for the provision of the documents in the second package becoming available to
the pursuers other that they had been obtained by hacking of one or other of the McIntoshes'
computers, in breach of section 1 of the Computer Misuse Act 1990. The court should
proceed on the basis that the documents in question had been obtained illegally. Further, it
ought to find on the balance of probabilities that they had been obtained illegally by or for
the pursuers. The two envelopes containing the documents were distinctively addressed,
suggesting that the same person was responsible for both. The envelope containing the first
package bore an unfranked stamp and thus did not appear to have been processed by the
post office before being discovered in the pursuers' mailroom. It was probable that the
envelope was simply deposited in the mailroom by the person who addressed the envelope.
The mailroom had a secure entry system to which members of the pursuers' staff were
allowed entry if they "buzzed". The writer of both envelopes knew the first names of both
Mr Forde and Mr Webster and clearly identified strongly with the pursuers' interests. There
was no evidence to suggest that it would have been possible to obtain all of the documents
in question other than by hacking, and no evidence to suggest that some third party not
connected to the pursuers would have had any motive for hacking to obtain those
documents.
[58]
Further, the court should also find that the pursuers had at all times been aware that
the information contained in the documents in issue was confidential. That was
immediately apparent from the terms of those documents. Certainly so far as Mr Matheson
was concerned, the content of his email correspondence was plainly confidential and was
material in respect of which he had a reasonable expectation of privacy.
27
[59]
On ordinary common law principles, the court had a discretion whether to admit or
exclude improperly obtained evidence having regard to whether it was fair in the
circumstances to admit it. In assessing fairness the court had to look at the nature of the
evidence, the purpose for which it would be used, and the manner in which it had been
obtained, in order to determine whether its introduction would be fair to the party from
whom it had been improperly obtained and also whether its admission would throw light
on disputed facts and enable justice to be done: Baronetcy of Pringle of Stichill
[2016]
UKPC 16,
2016 SC (PC) 1 at [77]. In circumstances where the emails the pursuers sought to
found upon had clearly been obtained in flagrant breach of Mr Matheson's right to
confidentiality in respect of his private correspondence, the court ought to refuse to admit
those emails in evidence as their admission would be grossly unfair to him.
[60]
Further, and in any event, the admission of those documents in evidence would
amount to an interference with the rights conferred upon Mr Matheson by Article 8 of the
European Convention on Human Rights, which included the right to respect for his private
life and his correspondence. It was important to recognise that the defender was engaging
in email correspondence in his capacity as "an ordinary person" and not as a public official,
and thus had a reasonable expectation of privacy in relation to his private correspondence:
BC v Chief Constable of the Police Service of Scotland
Sciacca v Italy [2006] 43 EHRR 20. In determining whether the emails should be admitted in
evidence the court required to balance whether allowing a determination of the parties' case
on the basis of the evidence which might be available to the pursuers, however covertly
obtained, out-weighed Mr Matheson's rights under Article 8. The admission of the emails in
evidence would amount to a disproportionate interference with the Mr Matheson's Article 8
rights having regard to his reasonable expectation of privacy, the limited group within
28
which the emails circulated, and the fact that the emails had been obtained by covert means:
BC at [114]. The court was a "public authority" for the purposes of the Human Rights
Act 1998 and it was unlawful in terms of section 6(1) of that Act for a public authority to act
in a way which was incompatible with a Convention right. In those circumstances the court
ought not to exercise its discretion, contrary to Mr Matheson's Convention rights, to admit
the emails in evidence.
[61]
For the same reasons, both at common law and by virtue of Article 8, the court
should exclude from the action against Mr Matheson the further documents said to have
been contained in the anonymously sent packages which bore to have been obtained from
the email accounts of Mr or Mrs McIntosh and, if so, were extracted from their email records
without their consent. Ultimately, the test was again one of fairness. It would be difficult to
conclude that in fairness the pursuers should be entitled to adduce evidence which plainly
had been obtained by a blatant breach of the McIntoshes' reasonable expectation of privacy
in relation to their private correspondence.
[62]
In the event that the documents said to have been sent anonymously to the pursuers
were excluded, it followed that any further recoveries made pursuant to the order granted
by the court in the petition presented by the pursuers under section 1 of the 1972 Act should
also be excluded. Those recoveries were only made possible because the pursuers obtained
an order under section 1 of the 1972 Act in reliance upon the improperly obtained
documents contained in the anonymous packages. That being the case, those recoveries
were tainted by the prior illicit extracting of information from the email accounts of
Mr Matheson or the McIntoshes. As a result, the question became whether it would be fair
to Mr Matheson to allow the pursuers to rely upon that evidence at proof et separatim
whether allowing the pursuers to do so would result in a fair trial within the meaning of
29
Article 6 of the ECHR: Her Majesty's Advocate v P
at [18] and [27]. On either basis, the documents relied upon by the pursuers should be
excluded, as should passages in affidavits lodged by them in which they founded upon the
documents obtained by them in the circumstances already described.
Submissions for Margaret McIntosh and Granite Wealth Consulting Limited
[63]
Mrs McIntosh and Granite Wealth objected to the admissibility of the documents in
question, or any evidence which was derived from or relied upon that material, because it
had been illegally obtained and was in any event not the primary or best evidence of the
content of those documents.
[64]
The first package from the anonymous sender contained an email from Mr to
Mrs McIntosh sent on 26 April 2022. It was found in the mailroom of the pursuers' Dundee
office on 6 May 2022. Anyone who worked for the pursuers could readily have gained
access to the mailroom. The envelope had a stamp on it that was produced in 2009 and was
no longer in general circulation. There were no postal markings on the envelope. It was
reasonable in those circumstances to infer that it had not been posted and, instead, was
placed in the pursuers' mailroom by someone employed by them. Given the similarities in
style and handwriting on both envelopes, it was reasonable to infer that the first envelope
was placed in the mailroom by the same person who posted the second envelope. That
pointed to the material having been procured by someone who worked for the pursuers,
most likely someone who worked at or was based in the Dundee office. Mrs McIntosh was
placed on gardening leave from 10 May 2022, and returned her electronic devices to the
pursuers at that time. After that date, there was no possibility that she could inadvertently
have left any material on an office printer for anyone to find by chance. The second
30
anonymous package contained an email exchange, business plan and timeline. The email
exchange ended with an email from AAB to Mr and Mrs McIntosh, copied to another
member of staff at AAB, and sent on 13 May 2022. That email reported that Granite Wealth
had been incorporated on that day. The business plan referred to Granite Wealth having
been incorporated then. It was therefore reasonable to infer that the plan was prepared or at
least revised sometime on or after 13 May 2022. Neither the business plan nor the timeline
sent in anonymously bore to be attached to any particular email exchange. All the other
material in the second package took the form of emails. It was reasonable to infer that this
other material emanated from interception of emails. According to the McIntoshes, the
business plan and timeline were only ever e-mailed under cover of a blank email from her
to him sent on 18 May 2022 at 16.44. It was reasonable to infer that the second package
could only have been sent sometime thereafter. The second envelope was postmarked in the
environs of Aberdeen on 20 May 2022. The postage was underpaid, making it likely that it
was posted in a letterbox. There was likely to have been some delay between posting and
the envelope arriving at the sorting centre for franking and processing. It was therefore
more likely than not that the envelope was posted on 19 May 2022, by someone in the
Aberdeen area on that date. A person with both opportunity and incentive to procure and
use that material was Mr Webster. He had said in his affidavit that he went to Aberdeen on
10 May 2022 and that he thought he only went there once between 27 May and 24 June 2022.
It was only in cross-examination that he conceded that he was in Aberdeen on 19 May 2022
and that that was the only occasion between 10 and 27 May 2022 that he recalled having
been there. The fact that he was in Aberdeen on 19 May 2022 was also spoken to
Mrs McIntosh, Mr Matheson and Ms Pitcairn. That day was memorable to them firstly
because it was the day of a leaving lunch in Dundee. It was unusual for Mr Webster to miss
31
such an occasion, but he was not there, although he generally made a point of attending
such events. Further, 19 (rather than 10) May 2022 was the day that Mr Webster confronted
both Mr Matheson and Ms Pitcairn in Aberdeen. The fact that Mr Webster was in Aberdeen
on 19 May 2022 meant that he had the opportunity to have posted the second envelope. He
denied that he had done so, but his account was not credible. The burden of the evidence
was that it was the material in the second package which had particularly concerned
Mr Webster and had caused him to confront Mr Matheson. That fitted with him having
come into possession of the material in the second package shortly after the time of sending
of the final email contained in it (namely 16.44 on 18 May 2022) and having posted it
anonymously to himself when he was in Aberdeen on 19 May so as to provide an ostensibly
good reason for his possession of it. Mr Webster had accepted that he had had concerns that
Mrs McIntosh intended to compete with the pursuers from the moment that she resigned.
He plainly had a motive or incentive to procure evidence to support his concerns so that he
could do something to address them - particularly after the content of the first envelope was
deemed inconclusive by the pursuers' board. On the hypothesis (which he accepted) that
the first and second envelopes were addressed by the same person, it was reasonable to infer
that Mr Webster also procured the content of the first envelope and planted it in the
mailroom of the pursuers' office in Dundee, where he was based as a senior executive.
How exactly he procured the contents of the envelopes did not matter. Whatever means
were used to procure the content of these envelopes, it was reasonable to infer that they
were means which were likely to have been illegal or at least underhanded. There was no
need for the defenders to prove the precise mechanism by which the material was procured
by Mr Webster. There were a number of offences or wrongs that could conceivably have
32
at [90] - [105]), but what had happened certainly amounted to a breach of confidence.
It followed that the springboard for both the petition for an order under section 1 of the
Administration of Justice (Scotland) Act 1972 and the consequent actions was material that
had been illegally, wrongfully or at least irregularly obtained at the instance of the Chief
Executive Officer of the pursuers. That was manifestly unfair, particularly in circumstances
where the material was used to obtain one of the most intrusive forms of order that any
court was entitled to pronounce.
[65]
The material contained in the anonymous packages was plainly confidential. It was
material in respect of which, objectively viewed, a reasonable expectation of privacy and,
thus, a right to privacy at common law and under Article 8 of the European Convention on
Human Rights arose: BC v Chief Constable of the Police Service of Scotland at [90] - [100]. It was
plain that it had been obtained in circumstances which amounted to (at least) a breach of
confidence and an interference with the right to respect for private and family life, home and
correspondence guaranteed by Article 8(1). Confidence applied to information in which
there was a reasonable expectation of privacy and which had been obtained without
authorisation, regardless of whether it had been obtained intentionally or adventitiously:
Imerman at [68]. The court was a public authority for the purposes of the Human Rights
Act 1998: see section 6(3)(a). It was unlawful for a public authority to act in a way which
was incompatible with a Convention right: section 6(1). Where evidence had been gathered
in circumstances which could interfere with the right guaranteed by Article 8(1), the court
might admit that evidence where to do so was in keeping with Article 8(2). There had to be
a legal basis for doing so, it had to pursue a legitimate aim, and it had to be proportionate to
that legitimate aim: Martin v McGuiness 2003 SLT 1424 at [13] - [14]. In carrying out that
exercise, the court had to try to reconcile two competing public interests: the interest of the
33
public that in litigation the truth should be revealed and the interest of the public that the
courts should not acquiesce in, let alone encourage, a party to use unlawful means to obtain
evidence. Even if the evidence disclosed wrongdoing, two wrongs did not make a right:
ITC Film Distributors Ltd v Video Exchange Ltd [1982] Ch 431, [1982] 3 WLR 25; Jones v
[66]
The court also had to have regard to the domestic law governing the admissibility of
evidence. It had a discretion at common law to admit or exclude evidence having regard to
whether it was fair in the circumstances to admit it. Fairness was assessed by having regard
to the nature of the evidence, the purpose for which it was to be used in evidence, the
manner in which it had been obtained, whether its admission would be fair to the party
from whom it had been obtained, and whether it would throw light on disputed facts and
enable justice to be done: Baronetcy of Pringle of Stichill at [77]. Stricter standards ought to
apply in civil as opposed to criminal proceedings, to avoid a party gaining an advantage
from his own wrong: Argyll; Wilkinson, The Scottish Law of Evidence, p 118; Macphail,
Evidence (1987), §21.14.
[67]
Even if illegality did not operate as an absolute bar to admissibility in civil cases, the
authorities relied upon by the pursuers were not directly in point and, in any event,
pre-dated the development of the modern law of privacy and confidence and the European
Convention on Human Rights or at least its incorporation into domestic law. In Rattray v
Rattray (1897) 25 R 315 the judicial observations on the admissibility of a stolen letter were
entirely obiter, and the judges all expressed different opinions. In MacNeill v MacNeill 1929
SLT 251 there was no suggestion that the letter in question had been illegally obtained. The
same applied to Watson v Watson 1934 SC 374. In Duke of Argyll v Duchess of Argyll
(No 3) 1963 SLT (Notes) 42, the defender's diaries were held admissible despite the fact that
34
they had been deliberately stolen because she had been in the habit of keeping them in
places to which, when the parties had been living together, the pursuer had had access.
[68]
In the present case, the court should exercise its discretion to refuse to admit any
evidence of the material contained in the anonymous packages. It was material that was
shared between husband and wife and between client and professional adviser. It was
material in respect of which Mrs McIntosh enjoyed a reasonable expectation of privacy. The
business plan and timeline in particular set out thoughts which Mrs McIntosh had kept to
herself and her husband. The other material had been shared only with a very small group
of professional advisers.
[69]
If that material was held inadmissible, the court should also refuse to admit any
further evidence that was derived from or relied upon it as "fruit of the poisoned tree":
Her Majesty's Advocate v P at [18] and [27]. The further evidence in question was recovered
under an order granted in terms of section 1 of the Administration of Justice (Scotland)
Act 1972 which was obtained on the basis of the content of the anonymous packages.
Fairness in any event required that evidence should be excluded if it had been recovered
under the terms of a court order procured using irregularly obtained material, particularly
in circumstances where the irregularity was known to the party seeking the order but was
not fully disclosed to the court from which the order had been sought.
[70]
Further, it was incompetent to establish the terms or tenor of material not produced
by way of secondary evidence, such as parole evidence or copies: Scottish & Universal
Newspapers Ltd v Gherson's Trs 1987 SC 27, 1988 SLT 109. That manifested itself in the
"best evidence" rule. The rationale of that rule was that, if there was or had been in
existence better evidence than that actually adduced by one party, the other party was
prejudiced in any attack on what was adduced and the proffering party gained an unfair
35
advantage: Stirling Aquatic Technology Ltd v Farmocean AB (No 2) 1996 SLT 456. It was an
equitable consideration in relation to the assessment of the state of proof when a party had
either destroyed evidence which could have been adverse to his position, or failed to
preserve evidence in breach of a duty to do so: Hastings v Finsbury Orthopaedics Ltd
[71]
Where material had been destroyed or lost, secondary evidence would be admitted
only if it was shown that the evidence had been destroyed or lost without fault on the part of
the party who had effective control over it. In this context, "fault" meant failure in a duty to
take all proper steps or to use all due diligence to see that the material was preserved and
remained accessible for use at proof. In determining whether such secondary evidence
should be admitted, the court had to consider to what extent the absence of the material
itself would obviously prejudice the other party. The greater the obvious prejudice, the
more necessary it would be for the party who controlled the material to have taken
whatever steps were required to see that it was not lost. For that reason, secondary evidence
had not been admitted in Gherson's Trs, McGowan v Belling & Co 1983 SLT 77, Peacock Group
plc v Railston Ltd [2007] CSOH 26, 2007 SLT 269, Scottish Water Business Stream Ltd v
Automatic Retailing (Scotland) Ltd [2014] CSOH 57, and Tollerton v Highland Fuels Ltd
[2022] SC ABE 12. In each of those cases, the pursuer had control of material which was destroyed
or lost in circumstances where it (or those for whom it was responsible) was at fault for
failing to take proper steps to preserve that evidence. The pursuers in the present case
maintained that they had shredded the anonymous packages, both envelopes and content,
as part of their routine management of confidential waste. The defenders were seriously
prejudiced by the absence of the original material and would be significantly hampered in
36
their ability to advance their case that the material in question had been obtained illegally by
not having had access to the original material for examination.
Submissions for the pursuers
[72]
On behalf of the pursuers, senior counsel submitted that the defenders' objections to
the admissibility of the evidence in question were ill-founded as a matter of law and, in any
event, that the objections lacked any factual basis. The evidence in question was very
material and plainly admissible. It plainly disclosed that Mr Matheson and Mrs McIntosh
had a plan to set up a business in competition with the pursuers, and that they stole the
pursuers' confidential information and client data in order to do so. The court had already
granted permission for the use of the material recovered by way of the "dawn raids" in the
actions.
[73]
The defenders had failed to put forward any material to vouch the proposition that
the content of the anonymous packages had been illegally obtained. Indeed, the McIntoshes
and Mr Matheson had each accepted that they had no material to demonstrate that there had
been any unlawful access to their computers and documents, and were unable to state
positively to the court that anyone (let alone any named person) had taken any such access.
No expert evidence had been placed before the court. No relative investigations were
ongoing. By contrast, the evidence of Mr Webster and Mr Forde that they had nothing to do
with any illegal activity and knew of nobody who had, was absolutely clear, compelling and
unchallenged.
[74]
As a matter of general law, there was no absolute bar to a party making use of
evidence that had been illegally or irregularly obtained. It was a consideration of the
particular circumstances of each case that determined whether a particular piece of evidence
37
should be admitted or not. The circumstances which might have to be taken into account
included the nature of the evidence concerned, the purpose for which it was to be used in
evidence, the manner in which it was obtained, whether its introduction was fair to the
party from whom it has been obtained and whether its admission would in fairness throw
light on disputed facts and enable justice to be done: Argyll; Rattray; MacNeill; Watson. The
pursuers did not accept that there had been any illegality in the obtaining of any of the
evidence and the defenders had failed to aver or prove any such illegality; rather, it was
clear that the material had come into the hands of the pursuers in wholly innocent
circumstances.
[75]
The asserted confidential nature of the material in question did not render it
inadmissible. Any right of confidentiality in correspondence did not override the right of
the pursuers to take steps within the court process to protect their contractual and property
rights, or the right of society more widely to have parties kept to their civil law obligations:
Martin v McGuiness.
[76]
In respect of the defenders' contention that all or any part of the material in question
was not "best evidence", and that they were seriously prejudiced by the absence of the
original material, there was no such prejudice. The defenders did not dispute that
Mr Matheson and Mrs McIntosh were the persons responsible for the creation of the
substantive material anonymously supplied to the pursuers. Given this, there could be no
prejudice to them.
[77]
On the evidence before the court, there was simply no engagement of the "best
evidence" principle. Nothing about the content of the documents in question was actually
in dispute. None of the defenders could plausibly claim any prejudice arising from their
38
use. As to the envelopes, it was the defenders and not the pursuers who sought to make
reference to them in evidence.
[78]
The defenders' objections to the admissibility of the material in question should be
repelled.
Decision
[79]
The first question to be determined is what has been established about the
circumstances in which the pursuers came to be in possession of the material contained in
the anonymous packages. The first package contained an email chain culminating in
Mr McIntosh forwarding the remainder of the chain to Mrs McIntosh on 26 April 2002. The
sender of the first package obtained that document after it was so forwarded, making it
unlikely that it was obtained from the earlier contributors to the chain, namely Mr Matheson
and the staff of AAB. The theory that this document was inadvertently printed by
Mrs McIntosh to the pursuers' office printer and was found there by someone who decided
to pass it on to Mr Forde is entirely without support, direct or indirect, in the evidence and
falls to be discounted. The second package contained, inter alia, a copy of a business plan
for Granite Wealth which Mrs McIntosh was clear had only been shared by her with her
husband by email on 18 May 2022. Although some scepticism was expressed on behalf of
the pursuers about that claim, I see no reason to doubt it. Mrs McIntosh was well aware of
the need for discretion about what she might choose to do after leaving the employment of
the third pursuer. She had a specific reason for sharing the plan with her husband, namely
so that he could check and revise it, but had no reason to disseminate it more widely. The
others most likely to have been shown the plan, had it been shown to any others at all, were
Mr Matheson and perhaps Ms Pitcairn, but they both denied any awareness of its contents
39
and I accept their evidence on that matter. It follows that both packages contained material
emanating from the email accounts of either or both of the McIntoshes. They were both
adamant - and I equally accept - that neither voluntarily afforded access to those accounts to
any third party. It follows that on the balance of probabilities the content of both
anonymous packages was obtained by way of unauthorised access to one or other of the
McIntoshes' email accounts.
[80]
I have not found it possible to determine how that unauthorised access was taken. It
may be that one or other of the accounts was hacked, but the only evidence in support of
that claim, given by Mr McIntosh, was vague in nature and not capable of forming the basis
of any positive conclusion. Other possibilities exist - for example, Mrs McIntosh accepted
that at least occasionally she accessed her personal email account on her work laptop, and
that it was not her habit to log out of that account having accessed it, but that she rather
merely closed the web browser she had been using. In those circumstances, anyone
subsequently coming into possession of the relevant computer is likely to have had free
access to the content of the email account. There may equally be other explanations which
could be figured, but the evidence does not enable any one possibility to be preferred over
any other.
[81]
Who was responsible for taking the unauthorised access in question? The envelope
of each package was addressed in handwriting and asterisks were deployed in a very
unusual manner, making it likely that the same person addressed both envelopes. While
that does not necessarily entail that only one person was involved in the exercise of
gathering the contents of the packages, or that the same means were used in each instance, it
does make those propositions more likely than not in the circumstances, and I proceed on
that basis. It was submitted on behalf of Mrs McIntosh and Granite Wealth that the person
40
in question was Mr Webster, and in particular that he deposited the first package in the
pursuers' Dundee mailroom on 6 May and then posted the second package to himself from
the Aberdeen area on 19 May, subsequently concealing or pretending to forget that he had
been in Aberdeen that day, and questioning others (eg Ms Pitcairn and Ms Shearer) as to
whether they were responsible for the packages in order to divert any (then non-existent)
suspicion away from himself. This is an elaborate theory, attended by a number of
suppositions which depend at points more on hope than on evidence. The suggestion that
Mr Webster deposited the first package in the Dundee mailroom on 6 May is at odds with
his own evidence and that of Mr Forde that Mr Webster was in Edinburgh, rather than
Dundee, on 6 May. I also have the firm impression that the pursuers' organisation was not
one in which the Chief Executive Officer could have made an appearance in the mailroom,
on whatever pretext, without his visit being remarked upon and recalled. I do not accept
that it has been established that Mr Webster was responsible for sending the anonymous
packages (and, by extension, for taking unauthorised access to the email accounts). I expect
that modern Machiavellis do exist, but I hope that I do Mr Webster no disservice by
doubting that he is one of them.
[82]
I do find on the balance of probabilities that, as only a single sender appears to have
been involved, both packages were sent by post, the envelope of the first simply missing the
frank. I similarly find it probable that the first package was posted, as the second
undoubtedly was, in the Aberdeen area. Beyond that it is not possible to proceed. The
inference that the pursuers, as those with potentially most to gain from disclosure of the
contents of the packages, were those responsible for obtaining the material in question, is
not one that I am prepared to draw. The sender may simply have been someone who
considered what he or she conceived Mrs McIntosh and Mr Matheson to be doing to be
41
morally wrong, and who felt it appropriate on those grounds to intervene. Equally, the
sender may have been influenced by no such pure motive, but by enmity or jealously
towards Mrs McIntosh or Mr Matheson arising out of a work connection. It is not unknown
for colleagues to harbour resentment or other ill-feeling, whether openly or otherwise,
towards those with whom they work or have worked. It is simply not possible to determine
what may have motivated the person in question to collect and forward the material
contained in the anonymous packages, or to infer that, one way or another, the pursuers
ought to be regarded as responsible for his or her actions.
[83]
I proceed, then, on the basis that the contents of each of the anonymous packages
received by the pursuers were obtained by the taking of unauthorised access to one or other
of the McIntoshes' email accounts, but that it has not been established that the pursuers
ought to be regarded as responsible for that activity. I do accept, however, that both the
person responsible for obtaining the material and, once it was in their hands, the pursuers,
ought to have recognised its confidential nature and treated it accordingly (cf. Lord
Advocate v The Scotsman Publications Ltd
Attorney General v
Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, per Lord Goff of Chieveley at 281).
Admissibility at common law
[84]
Addressing firstly the question of how those findings affect the exercise of the court's
discretion at common law to exclude on the ground of fairness evidence which has been
irregularly obtained, and adopting in general terms, so far as applicable to the facts of this
case, the approach set out in Baronetcy of Pringle of Stichill, it is first and foremost clear that
the material in question is potentially of very significant import for the outcome of these
litigations, in that it may establish that Mr Matheson and Mrs McIntosh were indeed
42
engaged in activities which breached the various obligations to the pursuers to which they
had chosen to subject themselves. I stress that that is by no means an inevitable conclusion
from the material; there may well be explanations (some of which were lightly touched
upon in the course of the hearing) which cast a very different light on what, if anything, it is
that the material actually establishes. However, the potential significance of the material in
enabling the court to reach the correct and just conclusions in the litigations is clear and
obvious. This factor supports the view that it might well be disproportionate to exclude
material of such potentially probative quality from the court's consideration.
[85]
A further factor pointing in the same direction is that the material was not obtained
by any act for which the pursuers have been shown to be responsible. One argument in
favour of excluding unlawfully-obtained material is that the court may, by admitting it,
enable a person to benefit from his own unlawful act (see Rattray, per Lord Young
at 319 - 320). No such consideration applies in the circumstances of the present case. The
pursuers may be the beneficiaries of the wrongful act of another, and it may be that that
wrongful act was not actuated in whole or in part by the pure motives claimed by that other,
but the fact remains that this is a case, unlike many others where the pursuers come to court
with what have not been shown to be anything other than clean hands, at least in the context
of the acquisition of the relevant material.
[86]
Considering next the issue of unfair prejudice to the defenders if the material in
question is to be admitted in evidence, it must be borne in mind that that material was, by
common consent, voluntarily created by the defenders for their own purposes, rather as a
result of the trickery or instigation of others. As Lord Trayner observed of the facts in
Rattray at 318:
43
"The mode in which the letter is obtained does not alter the letter in any way,--the
letter admittedly was written by the defender, and what it may or can prove is not
affected to her prejudice by the manner in which it was got."
Although it may be that the admission in evidence of the material in issue in the present case
will transpire to be prejudicial to the defenders, there is nothing about either the
circumstances of its creation or the way in which it came to be in the hands of the pursuers
which supports the suggestion that such prejudice would be manifestly unfair.
[87]
On the other hand, in modern law the concept of a right to privacy and the related
notion of a right to maintain the confidentiality of one's private papers and correspondence
is much more developed, and falls to be accorded much more significance, than was the case
when decisions such as those in Rattray and Duke of Argyll were made. That was not an
issue which arose on the particular facts of Baronetcy of Pringle of Stichill. It remains for now
uncertain whether there is such a thing as a common law right to privacy in Scots law (BC v
Chief Constable) but the analysis of the general direction of travel of the law in this regard
which was carried out by the English Court of Appeal in Imerman at [54] - [71] is instructive
and supportive of the conclusion that a person's right to be able to enforce the right to
confidentiality which he enjoys in any material is in itself a weighty consideration to be
entered into the balance when the common law exercise at hand is being carried out.
[88]
As the Court in Imerman put it at [69]:
"It is of the essence of the claimant's right to confidentiality that he can choose
whether, and, if so, to whom and in what circumstances and on what terms, to reveal
the information which has the protection of the confidence. It seems to us, as a
matter of principle, that, again in the absence of any defence on the particular facts, a
claimant who establishes a right of confidence in certain information contained in a
document should be able to restrain any threat by an unauthorised defendant to look
at, copy, distribute any copies of, or to communicate, or utilise the contents of the
document (or any copy), and also be able to enforce the return (or destruction) of any
such document or copy."
44
[89]
Very similar comments could properly also be made in the context of Scots law, and
provide a powerful counterweight to the factors in the balance in favour of the admissibility
of the irregularly obtained material. However, with some hesitation, I consider that that
balance remains to be struck in favour of the admissibility of the material in question. The
risk of the court being led to a wrong and unjust result as between the parties should that
material be excluded is the consideration which carries most weight, and prevails against
the defenders' confidentiality rights because those rights do not concern any particularly
sensitive or personal issue and because the pursuers have not been shown to have infringed
those rights directly, but only in the secondary, Attorney General v Guardian manner. I
accordingly hold the contents of the anonymous packages admissible at common law.
Impact of the European Convention on Human Rights
[90]
Article 8 of the ECHR is in the following terms:
"1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others."
[91]
I have already indicated (and do not understand it to be disputed) that the defenders
had a reasonable expectation of privacy in the contents of the emails and business
documents which found their way into the anonymous packages. In those circumstances
the court could only, in conformity with its duties as a public authority in terms of the
Human Rights Act 1998, countenance that material being used as evidence in the actions if
certain conditions are met. Firstly, such use would have to be necessary for one of the
45
purposes set out in the second paragraph of the Article. That the proposed use is necessary
for the protection of the rights and freedoms of others, namely the pursuers, emerges clearly
from the potential materiality of the items in question to the proper resolution of the parties'
disputes, as already set out. Secondly, such use must be fair, and proportionate to the
protection of the rights and freedoms of those others. Those questions are, in essence,
resolved by the discussion and determination of those issues in the common law context.
There is no separate matter touching upon their resolution in the context of their
consideration for the purposes of Article 8. The third and final question which requires to be
answered affirmatively in order for the material in question to be admissible in terms of
Article 8 is that there is a clear and accessible legal basis upon which the court proceeds in
allowing their use. Further, if that basis is some aspect of the public interest - as it is in the
present case, namely the public interest in the proper administration of justice - that interest
must not be too "vague or amorphous", or else it risks failing to provide the clear and
accessible basis necessary (BC v Chief Constable, per the Lord Justice Clerk at [108]). It is this
aspect of the Article 8 considerations which has given me most pause for thought. Although
the existence and nature of the public interest in the administration of justice is clear enough
as a concept, it may not be particularly easy to forecast with the requisite degree of accuracy
how its needs will be interpreted in any particular case, particularly if - as I have held - the
growing importance of a public interest in the recognition of rights to confidentiality and
privacy now falls to be taken into account. However, ultimately I have concluded that the
elements which fall to be considered in determining the question of the admissibility of
evidence at common law are sufficiently clear to enable a suitably-experienced legal
practitioner to assess and advise a client who requires to deal with that question what the
likely outcome may be, or at least how likely any particular outcome is. Given that, in
46
domestic law at least, the hurdle to be crossed in order for a set of legal principles to be
assessed as representing a clear and accessible legal basis for inroads to be made on Article 8
rights is a comparatively low one, I consider that that suffices for this issue, too, to be
determined in favour of the pursuers. It follows that there is no bar to the admissibility of
the material in question in the form of Article 8 of the ECHR. Nor do I consider that any
separate issue arises under Article 6; the only applicable requirement in that Article to the
present case is that the proof should be "fair", and given that that criterion has already been
considered and determined in the context of the common law position, no further or
separate consideration under Article 6 is required.
Fruit of the poisonous tree
[92]
Given that I have determined that the contents of the anonymous packages are
admissible at common law and in terms of the ECHR, the question of the admissibility of
further evidence acquired in consequence of the use of that material to obtain orders for
"dawn raids" under section 1 of the Administration of Justice (Scotland) Act 1972, and said
to be tainted by the fact of that material having been unlawfully obtained, does not arise.
The contents of the anonymous packages have been determined to be admissible in evidence
(and equally admissible for consideration by the court in the context of the application for
the section 1 orders), so no relevant such taint exists.
[93]
Had the question been a live one, I would not have acceded to the defenders'
suggestion that the material acquired in consequence of the "dawn raids" was so closely
associated with any illegality pertaining to the acquisition of the content of the anonymous
packages as to render it inadmissible. The evidence seized
by the commissioners from the
homes of the Mathesons and McIntoshes existed (and was thus there to be discovered) quite
47
independently of
any illegality attending that acquisition, and any link between that
illegality and the seizure of the further evidence by way of the "dawn raids" was sufficiently
attenuated by the independent intervention of the court in granting the section 1 orders as to
render it too feeble to bear the weight which the defenders
require of it. In other words, the
"dawn raids" fall for these purposes to be regarded as the occasion, rather than as the cause,
of the discovery of the additional material. While it may well be that the considerations
which fall to be taken into account in this regard in the context of civil litigation differ for
various reasons from those of relevance in the criminal context, I add that I do not regard the
approach I have adopted in the present case, or the result arrived at, as differing from the
approach taken or the result reached in Her Majesty's Advocate v P.
Best evidence
[94]
The general rule against the admission of secondary evidence in the absence of
satisfactory explanation for the lack of better evidence has, perhaps, never been quite as far-
reaching or implacable as is often imagined. There will be obvious cases where the absence
of primary evidence plainly gives rise to issues of potential prejudice to a party, or else
imperils the ability of the court to determine the dispute correctly, for example where
matters turn on the state of some object, or on the content of documentary material, which
has not been made available for inspection. In such cases, as explained in Gherson's Trs, the
admission of secondary evidence as to that state or those contents is likely to depend on the
furnishing of a cogent explanation as to the absence of the primary material, cogency being
determined by reference to the importance of the missing material and the circumstances of
its non-availability to the court.
48
[95]
The present case is in a rather different category. There is no dispute that the
material produced to the court as representing the content of the anonymous packages is a
perfect facsimile, produced by means of electronic scanning, of the papers contained in those
packages, or that those papers were in turn accurate printed versions of documents created
in digital form by the defenders and others. This is not a case where, for example,
documents were received by the pursuers in digital format, but printed and produced by
them to the court in paper form, with the digital versions permanently deleted, resulting in
the loss of at least possibly significant metadata. What has been produced to the court as
representing the content of the packages is in every relevant sense as good as that content
itself. It may be that it does not in such circumstances fall to be regarded as secondary
evidence at all, and may properly be treated as one physical manifestation of an essentially
digital entity which is as valid as any other such manifestation, but even on the assumption
that it is secondary evidence, its use presents no risk of prejudice to the defenders or to the
proper administration of justice by the court, and the best evidence rule is, thus, not
engaged.
[96]
Slightly different considerations attend the production of scanned copies of the
envelopes containing each of the anonymous packages. The envelopes in question
originally had an existence in the physical rather than digital world, and it is at least
conceivable that the scanned versions provided to the court deficiently represent some
aspect of that original physical item. The potential for prejudice to the defenders or to the
proper administration of justice thus exists, and creates room for the engagement of the best
evidence rule. I do not accept the submission for the pursuers that, because they seek to
draw nothing from the envelopes, the secondary nature of the evidence as to their state is
49
not their concern. The better view is that each package falls to be regarded as an unum quid,
so that an evidential problem with one aspect of a package is capable of affecting the whole.
[97]
However, the only possible prejudice arising out of the secondary nature of the
evidence about the envelopes which could be figured by the defenders was the suggestion
on behalf of Mrs McIntosh and Granite Wealth that the production of the original envelope
containing the first anonymous package might have enabled a close examination to
determine whether it was indeed unfranked, as the scanned version appears to be. I accept
that relevant prejudice to a party for these purposes might include a disadvantage in
arguing about the admissibility of a piece of evidence, and is not restricted to disadvantage
in dealing with its probative value once admitted. However, an examination of the first
envelope could only have had one of two results. Firstly, it might have revealed no sign of
any frank, in which case the state of the evidence would stand exactly as it now does (and, in
particular, would not necessarily lead to the conclusion that the package had not been
posted), or alternatively it might have revealed some trace of a frank not apparent from the
scanned version, in which case the conclusion at which I have arrived by a consideration of
the other evidence in the case, that the package in question was indeed sent through the post
rather than being deposited at the pursuers' Dundee office, would be bolstered. In either
event, there is no material prejudice to the defenders or risk to the administration of justice,
and thus no room for any balancing exercise as might otherwise be required by the best
evidence rule.
50
Conclusion
[98]
I shall repel the defenders' objections to the admissibility of the anonymous packages
and of the material recovered in the "dawn raids" and continue the cases to diets of proof
accordingly.
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