Requiring Evidence
Cases
Novell Inc. v. MCB Enterprises
[2001] IESC 204 (30 January 2001) Denham J
- Law
The Foreign Tribunals Evidence Act, 1856, provides, in Section 1:
“Where, upon an Application for this Purpose, it is made to appear to any Court or Judge having authority under this Act that any Court or Tribunal of competent Jurisdiction in a Foreign Country, before which any Civil or Commercial Matter is pending, is desirous of obtaining the Testimony in relation to such Matter of any Witness or Witnesses within the Jurisdiction of such first mentioned Court, or of the Court to which such Judge belongs, or of such Judge, it shall be lawful for such Court or Judge to order the Examination upon Oath, upon Interrogatories or otherwise, before any Person or Persons named in such Order, of such Witness or Witnesses accordingly; and it shall be lawful for the said Court or Judge, by the same Order, or for such Court or Judge or any other Judge having Authority under this Act, by any subsequent Order, to command the Attendance of any Person to be named in such Order, for the Purpose of being examined, or the Production of any Writings or other Documents to be mentioned in such Order, and to give all such Directions as to the Time, Place, and Manner of such Examination, and all other Matters connected therewith, as may appear reasonable and just; and any such Order may be enforced in like Manner as an Order made by such Court or Judge in a Cause depending in such Court or before such Judge.”
A protection against self-incrimination is afforded in section 5 which provides that:
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“Provided also, That every Person examined under any Order made under this Act shall have the like Right to refuse to answer Questions tending to incriminate himself, and other Questions, which a Witness in any Cause pending in the Court by which or by a Judge whereof or before the Judge by whom the Order for Examination was made would be entitled to; and that no Person shall be compelled to produce under any such Order as aforesaid any Writing or other Document that he would not be compellable to produce at a trial of such a Cause.”
Order 39 Rule 39 of The Rules of the Superior Courts, 1986, provides:
“Where under The Foreign Tribunals Evidence Act, 1856, … any civil or commercial matter, or any criminal matter, is pending before a Court or tribunal of a foreign country, and it is made to appear to the Court, by commission rogatoire, or letter of request or other evidence as hereinafter provided, that such Court or tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court may, on the exparte application of any person shown to be duly authorised to make the application on behalf of such foreign Court or tribunal, and on production of the commission rogatoire, or letter of request, or other evidence pursuant to the Foreign Tribunals Evidence Act, 1856, section 2, or such other evidence as the Court may require, make such order or orders as may be necessary to give effect to the intention of the Acts above mentioned in conformity with the Foreign Tribunals Evidence Act, 1856, section 1.”
Decision
There are essentially two matters which this Court has to decide. The first is whether in all the circumstances the proposed examination of the appellants at this stage would be oppressive. If the Court were of the view that the High Court order would not be oppressive, or that a more limited order to be worked out by this Court would not be oppressive, the next question which would have to be considered is whether the purpose of the proposed examination is essentially for discovery of documents in the Irish sense rather than for the purposes of testimony whether on an application for summary judgment under the Utah procedures or a full contested trial in Utah. In other words is the American plaintiff promoting these procedures essentially seeking evidence to be directly used or is the plaintiff
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essentially seeking documentary information to enable it to obtain evidence. An examination for the latter purpose would be impermissible under the 1856 Act. The modern English case law in these matters is based on the English Act of 1975 which in turn arose out of an international treaty. The English courts have made it quite clear that the principles under the new Act are not the same as those which applied under the 1856 Act which is repealed in England. The Irish Courts are bound by the 1856 Act as it is still the law in this jurisdiction.
Under the principle of comity, the courts of this jurisdiction would always be favourably disposed towards complying with such a letter of request from a court of another jurisdiction. The courts should be slow to refuse such an order. There is nevertheless a settled jurisprudence as to the circumstances in which it would be appropriate for a court to exercise its discretion against making the order. One instance of this is where the order would be oppressive in all the circumstances. The two issues involved in this decision are not entirely disconnected in that it is well established that the extent of the documentation required may itself be an element of oppression. These principles are well set out by Sir Richard Scott V-C in First American v. Sheikh Al-Nahyan [1998] 4 All E.R.439, although the English Court of Appeal presided over by Sir Richard Scott V-C was applying the more liberal 1975 Act now enacted in England. After referring to the importance in general of acceding to letters of request by foreign courts, Sir Richard Scott commented at p. 449 that this was particularly so “where the litigation arises out of a fraud practised on an international scale “. He pointed out that a civil action in any part of the world based upon an aspect of that fraud will be an action in respect of which there are likely to be individuals in many different countries who are potential witnesses with relevant evidence to give. It is significant that in this case (and this is one of the complaints of the appellants) no mention of the Irish proceedings was made
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in the original grounding affidavit. The cases therefore are not internationally entwined in the sense referred to by Sir Richard Scott but the court has little doubt that information gleaned as a consequence of the examination would be extremely useful or at least could be extremely useful to the plaintiff/respondent in the Irish proceedings. There is a much more relevant passage later in the judgment of Sir Richard Scott. In that case evidence was being sought from Price Waterhouse the well known accountancy firm. On page 451 of the judgment, Sir Richard Scott stated as follows:-
“First American have given no undertaking that they will not join Price Waterhouse in a civil action, whether the existing action or a new action, in an attempt to recover damages for Price Waterhouse’s alleged knowing complicity in the fraud. First American’s lawyers plainly believe that they already have material that justifies them in making public allegations to that effect. It is, it seems to me, inherently oppressive to hold over the head of two witnesses serious allegations of complicity in fraud and the real possibility of being joined as defendants in a civil action based on that alleged complicity, while at the same time requesting an opportunity for a wide examination of the two witnesses on the very topics that would be relevant in an action against them. For the reasons I have endeavoured to give, I would not refuse to give effect to these letters of request on the ground that the main purpose underlining them was not to obtain evidence for the existing action but was to obtain evidence for a contemplated action against Price Waterhouse. In Rio Tinto Zinc Corp. v. Westinghouse Electric Corp., RTZ Services Limited v. Westinghouse Electric Corp. [1978] 1 All ER 434 at 444 119781 AC 547 at 611 Lord Wilberforce commented:
‘The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested…’
I accept that, in general, that would be so. But allegations of fraud raise special considerations and so long as First American hold themselves free to use any information they may obtain from these two witnesses in a civil action for fraud in which the witnesses, or their firm, are defendants, the requests are, in my judgment oppressive.”
While the judgment cited is that of another jurisdiction it has persuasive authority. Moreover, in having regard to the Constitutional guarantee of fair procedures the Court must ensure that
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parties to litigation are allowed to bring their cases on an equal and fair footing. This means that the Court, when exercising discretion must take into account whether an order sought in favour of one party would be oppressive of another in the same or related proceedings. As previously noted there are already proceedings in being before the High Court between the respondent and the appellants arising from the same subject matter as the proceedings in Utah. There are clear allegations of fraud against the appellants in the Irish proceedings. If the plaintiff/respondent was permitted to examine the appellants on the very subject of the Irish proceedings (albeit for the purpose of the proceedings in Utah), it would give them an advantage and potentially place the appellants in an invidious position with regard to preparing and advancing their own defence to the case of fraud being made against them by the respondent. It would, in all the circumstances, be oppressive to permit the respondent to examine the appellants in advance of the hearing of the fraud action against them in Ireland. If the proceedings in Utah were adjourned until after the Irish proceedings the position would then be quite different.
Since the court would allow the appeal on this ground it is reluctant to consider in any detail the second ground since it may be more appropriate for this court to reconsider the parameters of the 1856 Act in some case where it arises directly. It has been explained to the court that in pre-trial procedures in the District Court in Utah the evidence if obtained could be used by either side to establish that they had an unlosable case, in which event summary judgment could be obtained. On the other hand, if the case went on to a full trial the evidence could be used at the trial. On the face of it there would seem to be nothing in the 1856 Act which would preclude the evidence being used for an application for summary judgment in those circumstances. The evidence in that event would itself be “testimony” and not information
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with a view to obtaining evidence analogous to discovery in the Irish sense. Given the limitations on the High Court order to which Mr. Frank Clark S.C. was prepared to agree, which would have the effect that the evidence obtained would be confined to evidence which could be used in an Irish Court but that such evidence having been obtained could be used either for the purpose of summary judgment or at the final trial, the members of the court would incline to the view that there would be no legal obstacle in the way of the court approving such an order. But it is not necessary to express a final opinion on the matter as it does not arise in the light of the view the court takes on the oppression issue.
The court will allow the appeal.
McConnell v. Garda Commissioner & Ors
[2003] IEHC 159 (31 January 2003) O’Caoimh J
Conclusion:
I am satisfied that the court in granting an order for a subpoena duces tecum should have material before it showing that the documents sought to be produced are relevant to the claim being made. In Fitzpatrick v. Wymes [1976] I.R. 301, Walsh J stated, inter alia, at page 311 of the report:
“No person can be a witness unless his evidence is relevant and admissible. As a summons to attend the hearing involves a liability of imprisonment if the person served does not attend, it is not unreasonable and does not create any injustice that a prospective witness should not be compelled to attend the hearing unless his evidence is material to the proceedings. The fact that in most, if not all, court proceedings witnesses may be summoned without that precondition does not give a litigant a fundamental right to do so. In my view, the objection taken at the tribunal to giving any indication of the materiality of the witness sought to be ordered to attend was misconceived in law, and the regulation which required that to be done was not bad for violating any constitutional or other fundamental right.”
It is clear from a reading of the order of Abbott J. that there was no affidavit filed grounding the application for the subpoenae in the instant case and that the application for same was made on the submissions of counsel and on the proposed orders sought.
Insofar as this application is based upon an assertion that the extent and volume of the documentation sought to be produced by service of the subpoenae duces tecum are oppressive having regard to the time allowed in the subpoenae, and that they are an attempt to obtain discovery by an impermissible route and constitute an abuse of process, I am of the view that there is force in these submissions. It is clear that the issue of the relevance of the documentation is central to the application and I am not satisfied that the plaintiff has shown the relevance of the large volume of documentation sought. While Fitzpatrick v. Wymes was based upon the nature of the particular proceedings which were disciplinary proceedings taken under the terms of the Dublin Police Act, 1924, I am satisfied that the portion of the judgment of Walsh J. quoted above, supports the case being made by the defendants.
While the motion before this court is brought by the defendants, I am satisfied that if persons other than the defendants are the subject matter of subpoenae that the motion to set aside the High Court order should have been taken in their names insofar as the order of the High Court pertained to them. However, no particular issue has been made of this fact in this application.
While it appears that an application for a subpoena duces tecum in England is made on notice to the witness, who may object thereto, the situation in Ireland is different and O. 63 r.1 (26) of the Rules of the Superior Courts indicates that an order for the issue of a subpoena under O. 39 r.30 of the Rules may be made ex parte. O.39 r.30 indicates that no subpoena shall issue for the production of any record in the custody of an officer of the State, without the order of the Court.
Steele v. Savory [1891] W.N. 1950++ is authority for the proposition that the court will set aside a subpoena duces tecum which is oppressive, e.g. which relates to documents discovery of which has been refused by the Court. In that case the court held the subpoena to be oppressive and an abuse of the process of the Court. The Court of Appeal had previously refused to order discovery of many of the documents which were subsequently required to be produced under the subpoena at issue, on the ground that there was a preliminary point to be tried to which the documents were not relevant. The court upheld the applicant’s entitlement to come to Court to have the subpoena discharged.
While the Court in the instant case has not adjudicated on the issue of discovery other than to direct that the plaintiff should indicate to the defendants what documents are required, I am satisfied that in the circumstances of the instant case the subpoenae are in general oppressive in their terms and I believe that they should await the outcome of discovery. I am also satisfied that the plaintiff should indicate how the documents sought from the State Solicitor are relevant as it is clear that they are in a category in respect of which a claim of privilege would normally be allowed.
In conclusion, I propose acceding to the application to set aside the order made ex parte on the 6th April, 2002, and the subpoenae duces tecum at issue.