Judge rules documents and evidence given by US citizen in the US can be used in London arbitrations.

The defendant in this case had applied to a US court under section 1782 of the United States Code for an order requiring a US citizen resident in the US to disclose documents and give evidence by way of deposition. That order was granted ("the 1782 Order") and was stated to be for the purpose of providing evidence in proceedings taking place in the British Virgin Islands and Cyprus. However, under US law, the defendant is free to use the documents and evidence provided pursuant to the 1782 Order for any purpose. The defendant intended to use them in London arbitrations. The claimant obtained an injunction restraining the defendant from enforcing the 1782 Order, but Males J has now declined to continue that injunction.

Prior caselaw has established that, in some circumstances, use by a party of the procedure under section 1782 can constitute (as a matter of English law) unconscionable conduct, interfering with the fair disposal of English court or arbitration proceedings (which the English court will restrain by injunction). However, the judge held that there was no such unconscionable conduct in this case. A key factor was that the 1782 Order had been sought in respect of third countries (the BVI and Cyprus) and whilst the English court has a legitimate interest in protecting the fairness of English litigation or arbitration proceedings "It has, however, no legitimate interest in policing a party's attempt to obtain documents or evidence for use in foreign proceedings, let alone in reviewing the decision of the United States court as to whether its procedures should be utilised for that purpose". Furthermore, in this case, the US court had reached a reasoned decision that the documents and evidence were needed for use in the proceedings in the third countries and that the defendant had or would suffer prejudice if it did not have that material. It also could not be said in this case that the London arbitrations were the "lead proceedings" in which the liability disputes between the parties would be resolved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.