At your request

A letter of request is a means by which a foreign requesting court can obtain evidence from a witness resident in England and Wales with the assistance of the English courts. The use of letters of request and, in particular, the need to balance the interests of the potential witness with the English court's general wish to assist the foreign court has been considered recently in the case of Daric Smith v Phillip Morris Companies Inc [2006] EWHC 916 (QB).

Background

Daric Smith had brought a class action in Kansas, US against a number of cigarette manufacturers in which he alleged a worldwide conspiracy to unlawfully fix the price of wholesale cigarettes. This alleged conspiracy was said to have affected competition and thus cigarette prices in the US, including Kansas, in the period 1993 to 2000.

Pursuant to a letter of request from a Kansas court, Smith had obtained an order that three former employees of one of the cigarette manufacturers should be examined on the basis that they had critical knowledge of the alleged price-fixing conspiracy. One of the employees, Keith Dunt, applied to set aside the order on the basis that:

(1) the proposed examination was intended to uncover potential new lines of inquiry such that the order was not compliant with the Evidence (Proceedings in Other Jurisdictions) Act 1975 and thus the court had no jurisdiction to make it; and

(2) the proposed examination would be oppressive.

Assistance v witness interests

Allowing the application, the court held:

• Although the evidence in support was less than satisfactory, Dunt might well have knowledge of some matter asserted in the US proceedings. Therefore, the order should not be set aside on the ground of jurisdiction.
• However, the letter of request necessitated an impermissible investigation '“ it was couched in very wide terms and was directed to questioning mainly of an investigatory nature.
• A witness was entitled to be aware within limits of the matters about which he was to be examined.
• The examination sought was oppressive '“ there were a wide-ranging list of topics, many of which were not limited in terms of subject-matter or date.
• In this instance, it was not possible to restrict the order to address the objections to the letter of request as drafted. The modifications required would be so substantial that they would amount to a rewrite of the letter of request.

Attachment A to the letter of request listed 17 'topics for examination'. The first nine topics referred to all communications between Dunt and former or current employees of various specified firms. No period of time limiting the scope of the request was specified. The remainder of the topics were similarly widely worded. Thirty-nine documents or part documents were also referred to in the letter of request, a number of which simply referred to meetings which Dunt was said to have attended. There was no reference to the subject matter of the meetings in question and therefore no indication that they related to matters alleged in the US proceedings. Thus, Mr Justice Andrew Smith concluded that the letter of request was 'couched in strikingly wide terms'. While he accepted that, in certain instances, this might be an inevitable consequence of the complexity of the issues, this was not the case on the facts.

In giving his judgment, he noted that the letter of request had been issued while the discovery process in the US was still continuing and before a trial date had been set. The inference being that the intention underlying the request was perhaps to obtain evidence for some investigatory purpose rather than for use at trial.

He commented that the English court should exercise its discretion to assist the foreign court whenever it was appropriate to do so, subject to the limitation that the order must relate to steps that can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the English court. The English court's general wish to assist the foreign court should always be balanced with the proper interests of the potential witness.

Different approach

This case highlights the particular difficulties which can arise in applying English law principles to letters of request issued by US courts. As noted in this case, the trouble in part appears to stem from the different approach taken to disclosure in the US. While exact procedures and requirements will undoubtedly vary from state to state, there is a tradition in the US of oral discovery, which is not really part of English proceedings. Further, it is in general easier to obtain disclosure against third parties in the US than it is in England and Wales.

Therefore, while the English court will as a matter of general policy seek to assist the foreign court upon receipt of a letter of request, those drafting letters of request should have regard to the comments of Mr Justice Andrew Smith in this case. In particular, care should be taken to ensure that requests are not too widely drawn. The request should be designed to establish allegations of fact, rather than to simply elicit information that might lead to a train of inquiry which may produce evidence for trial.

Paul Friedman is a partner and Helen Rowlands is a solicitor in Clyde & Co's Dispute Resolution Group

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