Requests for disclosure from foreign courts: a question of compliance

Background

A number of companies incorporated in the Kingdom of Saudi Arabia (the "Applicants"), issued proceedings in Canada alleging that a former high-ranking government minister in the KSA, Dr Saad Al Jabri, and others orchestrated an international scheme to defraud the Applicants of at least SAR 13 billion (US$3.47 billion).

As part of those proceedings, the Canadian court granted a worldwide freezing order against Dr Al Jabri's assets and a "Norwich Pharmacal" order against various third parties (including the Banks and Farrer and Co LLP (collectively, the "Respondents") for the disclosure of certain categories of documents (the "NPO"). Although the NPO requested the judicial assistance of the English courts, it was not directly enforceable outside of Canada. As the Respondents would not provide the disclosure voluntarily, the Applicants applied for the issue of a letter of request from the Canadian court to the English court to give effect to the NPO in this jurisdiction (the "LOR"). Pursuant to the LOR, the Applicants applied to the English courts seeking an order for disclosure from the Respondents.

Decision

None of the Respondents opposed the LOR, although Farrer & Co raised 'serious concerns' about the scope of the draft order. However, the order was opposed by Dr Al Jabri on the grounds of relevance. He argued the LOR was a 'fishing expedition' for documents for investigatory purposes rather than to address issues in dispute at trial.

Although questions of relevance are normally the domain of the requesting court, the receiving court can consider relevance if:

(a) the requesting court has "plainly not considered the question of relevance"; or

(b) it is clear to the English court, even on a broad examination, that the evidence is not relevant¹.

The court considered Dr Al Jabri's objections (as more fully described below) but ordered that the Banks produce the documents requested under the LOR. The Applicants had recognised that the documents sought under the NPO would not be granted under the LOR regime because some documents were sought for investigatory purposes. The Applicants therefore narrowed their request and ensured that the only documents sought from the Banks under the LOR were documents relevant to issues in dispute at trial. As the court was satisfied that the Canadian court had considered the question of relevance in relation to the NPO, it granted the disclosure sought.

However, the documents requested from Farrer & Co under the LOR were entirely differently described and broader than the documents ordered to be disclosed in the NPO. On the evidence available to it, the court concluded that the Canadian court had not specifically considered the relevance of this broader class of documents because the difference between the scope of the two applications had not been made clear to it. Accordingly, the English court deemed it appropriate to conduct its own relevance assessment based on its knowledge of the Canadian civil proceedings.

On the available evidence, the court concluded that the documents requested from Farrer & Co by the Applicants were not sufficiently relevant and suggested an 'impermissible investigatory purpose' on the part of the Applicants. As such, the court refused to grant the order.

Key issues

The power of the English courts to make an order pursuant to a letter of request from a foreign court derives from sections 1 and 2 of the Evidence (Proceedings in other Jurisdictions) Act 1975 ("the 1975 Act") and CPR 34.17. Pursuant to section 1 of the 1975 Act, the courts may only make such an order if satisfied that:

1. the application is made in pursuance of a request issued by and on behalf of the requesting court; and
2. the evidence to which the application relates is to be obtained for the purposes of civil proceedings instituted before the requesting court.²

Provided that the above conditions are satisfied, the courts have a discretion as to whether (and on what terms) to make an order under section 2 of the 1975 Act giving effect to a letter of request, including, under s. 2(2)(b), an order for the production of documents. In coming to its judgment in this case, the court restated a number of principles which guide the approach of the English courts to requests for judicial assistance from the courts of foreign jurisdictions. We highlight below an overview of the key issues.

Relevance

The courts will strive to give effect to the request of a foreign court, particularly in the context of matters concerning international fraud.³ On questions of relevance, the courts will generally defer to the requesting court (as the court seised of proceedings⁴), and the burden of establishing that a foreign court did not consider relevance will lie with the party opposing the application.⁵ While Farrer & Co did not actively oppose the LOR, by bringing the issue of the broader scope of the LOR to the court's attention, the LOR was successfully challenged.

Standing

Another reason for the successful challenge in this case was Dr Al Jabri's involvement in the hearing. A non-respondent who is party to the underlying civil proceedings before the requesting court has locus standi to apply to set aside an order obtained ex parte under the 1975 Act.⁶ In this case, although Dr Al Jabri was not a respondent to the LOR, the court considered that there was no reason why he should not make submissions in relation to the Applicants' application.

Oppression

In exercising its discretion, the court must consider the need to protect intended witnesses from oppressive requests. There is a balance to be struck between the interests of the requesting court and the burden placed on the witness to be examined.⁷ If the court considers that the request is irrelevant, or fishing, or speculative, or oppressive, it should refuse it.⁸

In Sakab, none of the Respondents objected to the granting of the requested order under the 1975 Act. Only Dr Al Jabri argued that the request was oppressive in nature. Dismissing Dr Al Jabri's objections on that basis, the court affirmed the decision of the Honourable Mr Justice Treacy in Land Rover North America Inc. v. Windh⁹; namely that where witnesses subject to a request do not object to it, considerations of oppressive burdens on witnesses do not arise.

Commentary

The letter of request regime is a stringent one. It is essential to ensure not only that any request meets the requirements of the requesting court but also that it complies with the law and practice of the receiving court. While the English courts will always aim to give effect to the request of a foreign court, where requests are framed too broadly, or where it appears that the requesting court has not considered the relevance of the documents sought, there is a significant risk that the request will be refused.