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Hague Convention Letters of Request – The relevance threshold

Hague Convention letters of request are an effective tool used by parties in overseas disputes to obtain evidence from, or to compel the disclosure of documents by, parties located in the UK.

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Published 9 May 2022

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Litigants from Hague Convention countries can ask their home courts to seek assistance from the High Court of England and Wales by issuing a “letter of request” (“LOR”) to obtain the evidence or documents.

For an overview of the steps involved in this procedure, please see our previously published guide, which is available here. However, in short, once an LOR is issued by the home court, the requesting party can then apply for an English court order to compel the witness’s evidence or disclosure of the requested documents. Such orders are usually obtained with relative ease at first instance, as the application will generally be made without notice. On the other hand, if the respondent, or any other party to the underlying proceedings in the home court becomes aware of such an application, they can object on a number grounds.

In the recent case of Sakab Saudi Holding Co v Al Jabri & Ors, Re: HSBC & Ors (“Al Jabri”), although the respondent banks did not object to the requested disclosure, the English court considered objections raised by the first defendant in the underlying Canadian proceedings.

One of the key grounds of objection is “relevance”, because the evidence or documents sought must be relevant to the issues for determination at trial (and can only be for used for that purpose). In practice, such objections can be difficult to sustain in the English courts, as they will generally defer to the home court’s judgment on issues of relevance. However, the English court may decline to make an order in circumstances where (a) the requesting court has “plainly not considered the question of relevance”; and (b) it is clear to the English court, even on a broad examination, that the evidence is not relevant.

In Al Jabri, the objecting party argued that the applicant was on a “fishing expedition” because the documents were being sought for investigatory purposes rather than being relevant to issues in dispute at trial. Prior to issuing the LOR, the Canadian court had made a Norwich Pharmacal order against various third parties, including the banks and a law firm in England, requiring disclosure of certain categories of documents. That order was not directly enforceable outside of Canada, and the English entities refused to provide voluntary disclosure. This led to issuance of the LOR. In the English court, it was argued that the documents were not sought because they were relevant to issues for trial in the Canadian proceedings, but pursuant to the Canadian court’s Norwich Pharmacal jurisdiction, so the issue of relevance was never considered by the judge in relation to the LOR.

The English court noted the documents ordered to be produced under the Norwich Pharmacal order were primarily ordered for an investigatory purpose, however the range of the documents sought under the LOR had been substantially cut down. The Canadian court order pursuant to which the LOR was issued also stated in clear terms that the documents sought “will be admissible and relevant at trial to establish the existence, nature and extent of the Fraudulent Scheme and of the Plaintiffs’ interest in such funds”. The English court therefore concluded that the documents sought from the respondent banks were relevant to the issues for trial and therefore disclosable.

The court took a different view in relation to documents sought under the LOR from the UK law firm. Importantly, there is a burden on the applicant to establish that the documents sought in fact exist. In this case, the evidence produced by the applicant made it clear that they did not know whether documents existed within the requested category and the applicant was merely ‘fishing’.

The case is a reminder that parties on either side of a potential LOR should obtain English legal representation as early as possible to maximise their chances of success. Prospective applicants should ensure that their LOR (as approved and issued by their home court) is drafted in a manner that is likely to satisfy the English court’s ‘relevance’ threshold. For a respondent or interested party that wishes to object, engaging with English lawyers well in advance of the requesting party’s application to the English court will give them a better opportunity to develop stronger grounds for objection.

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Shorter Reads

Hague Convention Letters of Request – The relevance threshold

Hague Convention letters of request are an effective tool used by parties in overseas disputes to obtain evidence from, or to compel the disclosure of documents by, parties located in the UK.

Published 9 May 2022

Associated sectors / services

Authors

Litigants from Hague Convention countries can ask their home courts to seek assistance from the High Court of England and Wales by issuing a “letter of request” (“LOR”) to obtain the evidence or documents.

For an overview of the steps involved in this procedure, please see our previously published guide, which is available here. However, in short, once an LOR is issued by the home court, the requesting party can then apply for an English court order to compel the witness’s evidence or disclosure of the requested documents. Such orders are usually obtained with relative ease at first instance, as the application will generally be made without notice. On the other hand, if the respondent, or any other party to the underlying proceedings in the home court becomes aware of such an application, they can object on a number grounds.

In the recent case of Sakab Saudi Holding Co v Al Jabri & Ors, Re: HSBC & Ors (“Al Jabri”), although the respondent banks did not object to the requested disclosure, the English court considered objections raised by the first defendant in the underlying Canadian proceedings.

One of the key grounds of objection is “relevance”, because the evidence or documents sought must be relevant to the issues for determination at trial (and can only be for used for that purpose). In practice, such objections can be difficult to sustain in the English courts, as they will generally defer to the home court’s judgment on issues of relevance. However, the English court may decline to make an order in circumstances where (a) the requesting court has “plainly not considered the question of relevance”; and (b) it is clear to the English court, even on a broad examination, that the evidence is not relevant.

In Al Jabri, the objecting party argued that the applicant was on a “fishing expedition” because the documents were being sought for investigatory purposes rather than being relevant to issues in dispute at trial. Prior to issuing the LOR, the Canadian court had made a Norwich Pharmacal order against various third parties, including the banks and a law firm in England, requiring disclosure of certain categories of documents. That order was not directly enforceable outside of Canada, and the English entities refused to provide voluntary disclosure. This led to issuance of the LOR. In the English court, it was argued that the documents were not sought because they were relevant to issues for trial in the Canadian proceedings, but pursuant to the Canadian court’s Norwich Pharmacal jurisdiction, so the issue of relevance was never considered by the judge in relation to the LOR.

The English court noted the documents ordered to be produced under the Norwich Pharmacal order were primarily ordered for an investigatory purpose, however the range of the documents sought under the LOR had been substantially cut down. The Canadian court order pursuant to which the LOR was issued also stated in clear terms that the documents sought “will be admissible and relevant at trial to establish the existence, nature and extent of the Fraudulent Scheme and of the Plaintiffs’ interest in such funds”. The English court therefore concluded that the documents sought from the respondent banks were relevant to the issues for trial and therefore disclosable.

The court took a different view in relation to documents sought under the LOR from the UK law firm. Importantly, there is a burden on the applicant to establish that the documents sought in fact exist. In this case, the evidence produced by the applicant made it clear that they did not know whether documents existed within the requested category and the applicant was merely ‘fishing’.

The case is a reminder that parties on either side of a potential LOR should obtain English legal representation as early as possible to maximise their chances of success. Prospective applicants should ensure that their LOR (as approved and issued by their home court) is drafted in a manner that is likely to satisfy the English court’s ‘relevance’ threshold. For a respondent or interested party that wishes to object, engaging with English lawyers well in advance of the requesting party’s application to the English court will give them a better opportunity to develop stronger grounds for objection.

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