Case Alert - [2018] EWHC 307 (QB)
Judge sets aside order made pursuant to a Letter of Request from a US Court
This was an application to set aside an order made by a master pursuant to a letter of request issued by a US court requiring the UK applicant to provide oral evidence and documents.
Cockerill J said that the first step when considering a contentious letter of request is to keep an eye on the underpinning jurisdiction: "In other words, when talking of compelling oral evidence the comparator is with when a witness summons would be available in proceedings in the English Court". A two-stage has been laid down in the case of First American Corp v Sheikh Zayed Al-Nahyan [1999], namely: (i) whether the intended witness can reasonably be expected to have relevant evidence and (ii) whether there is an intention to obtain evidence for use at trial. Unless the US court has considered the English approach and confirmed that the evidence sought is relevant to issues for trial, the English court is free to scrutinise the request: "It is not the same thing at all ... when a court issues a letter of request without the defendant being heard, or when the Court itself says nothing about relevance but simply records the submission of the applicant".
Here, the letter of request was issued following an unopposed paper application. Although the judge accepted that it could not be said that no consideration of the merits would ever eventually take place in the US, he went on to find that the timeline gave pause for thought: "Here we are looking at a stage even before the pre-trial discovery stage. There are as yet no defined issues; because there is no pleading from the Defendant... Thus it is clear that a part of the purpose of this Letter of Request is investigatory and therefore impermissible". (He did accept, though, that it is possible, in principle, for a letter of request issued at this stage to meet the relevant test).
The judge concluded that the court had no jurisdiction to make the order and the order was set aside.
The judge went on to consider what his approach to the documents request would have been, had he found jurisdiction. Although certain categories of documents had been drafted too widely, he commented that "What matters is whether one can spell out of the compendious description a list of individual documents separately described and whether the witness is left in no real doubt as to what he is being asked to bring". The claimant had attempted to reformulate its request and the judge noted that there is no blanket prohibition on anything other than "blue pencil" deletions. Minor re-drafting which did not alter the essential nature of the request was permissible and "Likewise I find it hard to believe that the court would have objected to additions to add a date range, thereby bringing down the burden on the witness".
COMMENT: This case re-affirms that a letter of request should not be treated as a wide-ranging "fishing expedition", which is investigatory, rather than being aimed at obtaining evidence. Furthermore, it will in certain circumstances be permissible for the English courts to go behind the request to investigate the relevance issue.
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