International & Commercial Litigation
No "fishing" - another victory for Loble Solicitors
In March 2005, the High Court of Justice, Queen’s Bench Division upheld orders obtained by Loble Solicitors for the evidence of two witnesses to be taken in England and used in US proceedings.
The Facts in the US Proceedings
The US action involves a multi-million claim against Land Rover. In December 2000 Janice Windh (one of the Claimants) was driving her Land Rover Discovery on Route 99, California, when she was struck from behind by another car. The collision caused the Land Rover Discovery to go out of control and roll over. The passenger compartments and roof of the Land Rover Discovery crushed, causing severe and permanent injuries to Mrs Windh, rendering her a quadriplegic. She also suffered severe injury to her nervous system. The Claimants allege that the Land Rover Discovery’s roof and restraint systems were defective.
Loble Solicitors were instructed by the US attorneys for the Claimants to obtain the oral deposition of two witnesses in England pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the 1975 Act”) and documents for use in the US action.
On application to the Queen’s Bench, the Senior Master granted the orders sought.
Land Rover’s Appeal
Land Rover’s solicitors in England sought permission to appeal the orders.
By consent, the application for permission to appeal and the argument on appeal were heard together. The hearing lasted almosttwo days.
On appeal Land Rover argued that the Senior Master failed to askhimself the right questions when deciding whether or not to grant the orders and failed to consider whether the intention to obtain evidence was for use at trial or was for some other investigatory, and therefore impermissible, purpose.
Land Rover argued that the Court’s discretion to grant permission to obtain evidence should follow the jurisdictional limitations, and therefore disallow any “fishing” applications. This is because in England, applications for international judicial assistance which are “fishing” for material will not be granted. It was argued that the Superior Court in California had failed to state to how the evidence obtained was directly relevant to proceedings, and therefore what was being sought was some form of impermissible discovery. Land Rover suggested that the subject matter for oral examination went beyond what was relevant to the issues in the US proceedings. Finally, the Defendant mooted that should the order be upheld on appeal, the orders should be limited or qualified so as to limit the ambit of enquiry permitted under s.2 of the 1975 Act.
The judgment of the Honourable Mr Justice Treacy upheld in its entirety the orders made by the Senior Master.
The Judge stated that,
“Master Turner observed, consistently with what may be gleaned from reported cases in this area, that, unusually, the witnesses were not objecting to the order; it was the Defendants as a party to the action who were raising an objection. Considerations, therefore, of oppressive burdens on witnesses do not arise. Indeed the indications are clear that these witnesses are willing to attend and give evidence on examination if required.”
The Judge also stated that the Senior Master had appreciated that the intention behind the seeking of evidence has to be the obtaining of material to be used at the trial of the proceedings, as opposed to obtaining material for the impermissible purpose of a “fishing” or investigatory exercise.
The Judge referred to a passage in the judgment of Master Turner,
“Having read the request, the pleadings and the witness statements of Mr Loble (the Plaintiffs’ solicitor), I have no doubt that this evidence is needed at trial. There is nothing in the papers before me to suggest that this is not the case.”
and expressly approved it finding that the Defendants had,
“…failed to make the case that the Master was wrong in his ruling”.
It is important to obtain advice in England before lodging a Letter of Request with the US Court to ensure that the request is acceptable to the English Court both in relation to obtaining evidence for trial, as opposed to “fishing” and that any document requests comply with the English requirements.
For information on obtaining evidence in England see Obtaining Evidence in England.