UK: Letters of Request Under the Hague Evidence Convention Obtaining Evidence in England in Aid of US Proceedings Introduction

Despite the clear message of the English Court to US litigants in the cases of State of Minnesota v. Philip Morris [1998] I.L.Pr.170 and First American Corp. v. Zayed [1999] 1 WLR 1154, that a careful distinction must be drawn between "discovery" and "evidence" when seeking to enforce US letters of request in England against third parties, another recent high profile and expensive failure to appreciate the distinction, shows that the message continues to go unheeded.

To quote the Court of Appeal in Refco & Another v. Credit Suisse First Boston and Standard Bank ("the Banks") [2001] EWCA Civ 1733, in which this firm represented the Banks:

When the United Kingdom became a party to the Hague Evidence Convention, it entered a reservation to Article 23 which became enshrined in the Evidence (Proceedings in Other Jurisdictions) Act 1975 ("the 1975 Act"), making it clear that pre-trial discovery against non-parties was something which the English Court would not provide because there was no equivalent under English procedural law. Therefore, the English Court will not assist where a request is for the purposes of discovery, in the nature of a roving enquiry by which a party seeks to fish for material which might lead to admissible evidence at trial, rather than for evidence at trial which is admissible and relevant to issues in the foreign proceedings.

Companies named Genira and Binzer were Plaintiffs in an action in the Supreme Court of the State of New York against two Refco companies, with which the Plaintiffs had engaged in bond and equity securities transactions over an 18 month period. The Plaintiffs had been introduced to Refco by a broker in London, who had told the Plaintiffs that his firm would be compensated "in accordance with industry custom and practice", being a small fraction of the spread between the bid and ask price for each trade. Difficult market conditions emerged and it was necessary for Refco to liquidate the Plaintiffs' trades, as a result of which the Plaintiffs sued for breach of contract. In the course of these proceedings, the Plaintiffs deposed the broker in New York, during which it became apparent that Refco appeared to have entered into certain commission or profit sharing arrangements with the broker.

As a result, the Plaintiffs abandoned their contractual claims and obtained leave to plead claims in fraud instead. In essence, they alleged that the sharing arrangements between Refco and the broker were improper and that the payments made to the broker were illegal commissions or kick backs in order to induce the broker to bring customers to Refco and to trade through Refco. In answer, Refco wished to assert that the type of fee arrangement which it had with the broker, was in accordance with industry custom and practice and suggested that evidence of the Banks, which also had trading relationships with the Plaintiffs through the broker, would be evidence of the relevant industry standards.

The request made by the US Court, at the behest of Refco, to the English Court, described the claim being made against Refco and asserted that it was critical to Refco's defence that it be permitted to inspect the records of the Banks relating to transactions and the amount and manner of payments by the Banks. On that basis, Counsel for Refco wished to take oral testimony from the Banks (no individuals were named) on topics set out in various exhibits to the request. There was no averment that Refco would be severely prejudiced if it could not depose the Banks. It was the Banks' documents and records which were to be the subject of oral depositions. As regards documents themselves, it was simply asserted that Counsel for Refco sought production from the Banks of documents set out in various exhibits.

Certain exhibits to the request set out topics on which Refco desired to examine the Banks. Other exhibits set out the documents requested in the most compendious of forms. The requests were also said to be "continuous in nature" and the Banks, so it was asserted, were to be bound to serve "supplemental documents up to the time of the trial". In the case of each bank there were approximately 40 categories of documents, commencing with words such as "all documents constituting…".

Initially, the English Court was not prepared to make any Order in relation to the documents on the basis that the request was "too wide". It was prepared to make an Order for the oral examination of witnesses, provided persons were identified to give evidence on behalf of the Banks. Before any Order of the English Court was drawn up, Refco sought to amend the draft of the Order in the English Court by reducing the 40 or so categories of documents to 4 compendious categories.

Following service of the Order upon the Banks, the Banks were advised to make an application to set aside the Order. In setting aside the Order, the Judge gave the following reasons:

• the New York proceedings were still at the stage of discovery;
• the New York parties were engaged on a roving commission designed to elicit information which might lead to evidence;
• the New York parties were engaged on a straightforward US discovery exercise;
• the purpose of the request was a fishing expedition and the English Court had no jurisdiction to give effect to it;
• the request for documents was not one for "particular documents specified" but was a general request for classes of documents in contravention of the 1975 Act;
• it was not possible to identify actual as opposed to conjectural documents;
• the Order should have made provision for the payment in advance of the Banks' costs of legal representation and searching for documents.

However, the Judge did find (although "not without hesitation") that the substitution of the shorter schedule of four categories of documents for the original 40, was a permissible re-writing of the request as a "blue-pencil" exercise, which did not result in a request which differed in substance from the original. The Banks had argued that in order to reduce the categories of documents, Refco should have returned to the US Court to seek a revised request.

In the Refco case, the Court of Appeal reiterated some fundamental principles from the 1975 Act and surrounding case law:

• the first principle, which reflects judicial and international comity, is as stated by Lord Denning in Rio Tinto Zinc Corporation v. Westinghouse Electric Corp. [1978] AC 547 at 560;

• the jurisdiction to make the Order is statutory. Such an order "shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings" in the English Court (section 2(3)). It is that provision which precludes the English Court from making orders for the taking of oral depositions from a non-party simply as part of the discovery exercise which takes place under the United States procedure;

• the position is even more clear in relation to documents. Section 2(4) states that an order shall not require a person to produce any documents other than particular documents specified in the Order as being documents which appear to the Court making the Order to be, or to be likely to be, in his possession, custody or power;

• the words in section 2(4) have been strictly construed. For example, whilst documents may be compendiously described, that is only where exact documents are clearly indicated and the documents are shown to exist or to have existed, rather than being conjectural documents (see In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331). Furthermore, it has been construed so as not to allow an Order to be made which would involve altering the letter of request other than by the operation of striking out words in the letter of request with a blue pencil (RTZ v. Westinghouse).

• the fact that letters of request may have been issued for the purpose of obtaining discovery or pre-trial depositions which fall foul of the above, does not mean that the English Court has no jurisdiction whatsoever to attempt to give effect to the requests (see Golden Eagle Refinery v. Associated International Insurance (unreported) (19 February 1998)). The Court, so far as documents are concerned can, by application of the "blue pencil", identify particular documents, and so far as oral testimony is concerned make it subject to terms that, for example: (1) "the examination of witnesses shall be for the purpose only of eliciting and recording testimony appropriate to be given at trial"; and (2) "that no question may be asked of the witness which in the opinion of the examiner is not a question of the nature that could properly be asked by Counsel examining a witness-in-chief at a trial before the [English] Court". Those were the terms on the basis of which the Court in the Golden Eagle case upheld the Orders for the examination of witnesses;

• in the face of a statement in a letter of request that a certain person is a necessary witness for the applicant, the Court should not be astute to examine the issues in the action and the circumstances of the case with excessive particularity for the purpose of determining in advance whether the evidence of that person will be relevant and admissible (see RTZ v. Westinghouse at 654);

On Refco's application for permission to appeal to the Court of Appeal, the Banks submitted that Refco's approach was fundamentally flawed from the moment the notion of a request was conceived. The idea was plainly one to obtain general discovery from third parties and to depose relevant individuals from those third parties as part of that process. Whilst that may be commonplace in US proceedings, it is not so in English proceedings. Refco never properly addressed the 1975 Act, the relevant restrictive provisions of the Act or the interpretations in English case law. Although attempts were made to redefine the material required which led to the amended Order in England, the New York Court was not involved at any stage in that part of the process. The only request from the New York Court remained a request premised on the ability of a party to obtain US style general discovery from a third party and to depose individuals as part of that process. An English court, the Banks submitted, simply had no jurisdiction to accede to such a request.

Although the Court of Appeal heard full argument from both parties, it ultimately refused Refco permission to appeal, thereby bringing the matter to an end once and for all. In essence, the Court of Appeal gave the following reasons for refusing permission:

(1) the letter of request as originally issued, was undoubtedly for pre-trial discovery, both so far as documents and taking depositions from the witnesses were concerned;

(2) it was extremely doubtful whether the attempt by Refco to salvage the position, so far as documents were concerned, by requesting a different shorter schedule of documents, was permissible. An application to the Court to, in effect, substitute such a compendious schedule for the extensive exhibits by operation of a blue-pencil technique, would seem to be extremely difficult. The Court of Appeal was quite unconvinced by Refco's attempts to demonstrate that upon scrutiny of the 40 categories of documents exhibited to the request, the Court could somehow spell out a request for the four particular classes of documents subsequently described in the new schedule to the Order of the English Court;

(3) in any event, the documents in the new schedule simply could not be described as "particular documents". The schedule did not describe documents which actually existed, but rather conjectural documents. The language used in the schedules such as "any" or "all", as opposed to "the" in respect of the documents, illustrated the point;

(4) it would be quite impossible to attempt a further blue-pencil exercise to try and identify exact documents, because there was no evidence to identify particular documents as existing, and indeed there was no suggestion that the English Court should do so;

(5) as for oral depositions, the impression given by the letter of request was that it was really documents which Refco were seeking from the Banks, and what was being sought by way of examination in reality related to what the documents might show. The fact that witnesses from the Banks were not originally identified, supported the conclusion that it was not first hand evidence of particular witnesses which was in contemplation. In any event, if no Order for the production of documents could be made, the primary basis on which Refco desired and persuaded the New York Court to have witnesses from the Banks provide a deposition (i.e. to be examined about documents), had disappeared;

(6) it was extremely doubtful whether any evidence in relation to fee arrangements between the Banks and the broker, was relevant or might be admissible in the US proceedings. Matters such as "industry standards" should be the subject of expert evidence. Whilst the Banks could establish what their fee arrangements were, that would be no better evidence of industry standards than Refco's own arrangements. It appeared to the Court of Appeal from an expert opinion provided on behalf of the Banks by New York attorney, John Fellas of Messrs Hughes Hubbard & Reed, that this was a view which the New York Court could well take. In any event, the request was in very broad terms and it was not the function of the English Court to redraft letters of request where there are serious doubts about the admissibility of the "evidence". That is particularly so where it did not appear that the New York Court had considered precisely what evidence was being sought for the trial or its likely weight if it were obtained.

The Refco case highlights the need to involve overseas lawyers in the jurisdiction to which a request is to be sent, in the drafting of the request itself and not after the request has been made. The extensive exhibits to the request in the Refco case, themselves indicated a great deal of expense in the preparation of the request which could have been saved or been more productive, had English lawyers been involved at the outset. Instead, in addition to the cost of preparation of the request, Refco was left to pay the costs of the Banks.