King's / Queen's Bench Division of the High Court

KF 2024 010445 - [2025] EWHC 1584 (KB)

Fecha: 01-Jul-2025

The law

The law

36.

There was little dispute as to the applicable legal principles which I can set out briefly. The court’s powers are contained in the 1975 Act. Section 1 sets out the jurisdictional thresholds for granting a Letter of Request and section 2 confers discretion on the court to make an order. As to jurisdiction, the court can only make an order if satisfied that:

(a)

The application is made in pursuance of a request issued by and on behalf of the requesting court; and

(b)

The evidence to which the application relates is to be obtained for the purposes of civil proceedings instituted before the requesting court.

37.

As to discretion the court can make such orders “as may appear to the court to be appropriate for the purposes of giving effect to the request in pursuance of which the application is made”. By s.2(3) no steps can be taken other than “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(4) states that an order shall not require a person to “(a) state what documents relevant to the proceedings …are or have been in his possession, custody or power; or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be in, in his possession, custody or power”.

38.

In the case of In Re Foreign Exchange Benchmark Rates Antitrust Litigation[2018] EWHC 2255 (QB) at [32] to [41] Senior Master Fontaine helpfully summarised the principles derived from the leading cases:

The starting point for the exercise of the court’s discretion is the dictum of Lord Denning MR in Rio Tinto Zinc Corporation v Westinghouse Electric Corp[1978] AC 547, CA at p560G-H: “It is our duty and our pleasure to do all we can to assist that court, just as we would expect the United States to help us in like circumstances. Do unto others as you would be done by”.

ii)

Letters of Request should be given effect to as far as possible. However:

The court’s powers cannot be used in aid of a fishing expedition – the examination must be confined to eliciting evidence for trial;

If the width of the topics for questioning is too wide, or uncertain or vague, it may be refused on the grounds that it is oppressive to the witness;

If the request is considered too wide ranging, the court retains a discretion whether to grant if it can ‘blue pencil’ the request, but is not permitted to redraft it;

The English court should rely on the requesting court’s determination of the issue of relevance of the evidence sought to the issues for trial;

There are limited circumstances where the court can consider the relevance of the evidence sought, where the relevance of the topics for examination in the request are not considered by the requesting court;

As regards testamentary evidence, the test is identified as “Can the intended witness reasonably be expected to have relevant evidence to give on the specified topics?”The test has been described as importing a low threshold.

39.

In relation to the principles set out at (ii) a) above and specifically in the context of requests from the United States of America it is important to understand that no pre-trial discovery or ‘train of enquiry’ disclosure is permitted. As such there is a distinction to be drawn between seeking information (i.e. “anything that it would be useful for a party or potential claimant to know about the subject matter of the dispute”), which is impermissible under the 1975 Act; and evidence to support pleaded “allegations of fact which have been raised bona fide with adequate particulars”, see Kerr LJ in In re State of Norway's Application[1987] Q.B. 433 at p.482.

40.

Lastly the principles of full and frank disclosure were recently considered by the Court of Appeal in Mex Group (Worldwide) v Ford[2024] EWCA Civ 959; [2025] 1 WLR 975 at [119] where Coulson LJ said:

“(v)
Material facts are those “which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to intention and for example proceedings in another jurisdiction.
(vi)
Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect.”

The Court of Appeal therefore recognised that in any given case there will be degrees of relevance and that it is important to keep a sense of proportion.

41.

The court has the power under CPR 3.1(2)(m), (3) & (6A) to impose conditions, including, if necessary, payments into court in the exercise of its case management powers.