Genira Trade & Finance Inc & Anor v CS First Boston & Standard Bank (London) Ltd

The Evidence (Proceedings in Other Jurisdictions) Act 1975 permits assistance to foreign courts only through steps available for obtaining evidence in English civil proceedings. It does not authorise United States-style pre-trial discovery from non-parties. Documentary orders are limited to particular documents, although categories may be used where they identify documents known to exist or to have existed. A letter of request may be narrowed by striking out words or imposing conditions, but the English court must not substitute a new request or conduct a fishing inquiry. Oral examination must concern relevant, admissible evidence appropriate for use at trial.

Genira Trade & Finance Inc and Binzer Enterprises Corporation sued Refco entities in the Supreme Court of the State of New York. After amending their claims from contract to fraud, alleging secret commissions and improper fee-sharing arrangements, Refco sought assistance from the English court.

Letters of Request sought extensive documents and oral depositions from CS First Boston and Standard Bank, which were non-parties. The Senior Master made orders for documents and examination. The Banks applied to set them aside. His Honour Judge Playford QC, sitting as a High Court judge, held that the requests went beyond the limits of English procedure and set the orders aside. Refco sought permission to appeal. The central issue was whether the orders could lawfully give effect to the New York discovery exercise under the Evidence (Proceedings in Other Jurisdictions) Act 1975.

Disposition. The court refused permission to appeal. The order setting aside the Senior Master’s orders against the Banks was correct. Costs were agreed at £32,218.15, payable within 14 days.

1. Statutory limits. The court followed the general principle that English courts should assist foreign courts, stated in RTZ v Westinghouse [1978] A.C. 547. However, the jurisdiction is statutory. Section 2(3) of the Evidence (Proceedings in Other Jurisdictions) Act 1975 permits only steps capable of being required to obtain evidence for civil proceedings in an English court. It therefore excludes oral depositions from non-parties merely as part of United States-style pre-trial discovery.
2. Documents. Section 2(4) permits orders only for particular documents specified as appearing to be, or likely to be, in the person’s possession, custody or power. Following In re-Asbestos Insurance Coverage Cases [1985] 1 WLR 331, documents may be described compendiously only where the description identifies documents known to exist or to have existed. The replacement schedule sought any or all documents, required a search, and identified conjectural categories rather than particular documents.
3. Blue-pencil approach. The court applied the principles in Golden Eagle Refinery v Associated International Insurance COT 19th February 1998, State of Minnesota v Philip Morris Inc [1998] I.L.Pr. 170 and RTZ v Westinghouse. A request may sometimes be narrowed by striking out words or by imposing conditions on oral examination. That technique could not be used here to substitute a new documentary schedule or redraft the Letters of Request.
4. Oral evidence and relevance. The proposed examination of the Bank witnesses was principally about documents which could not lawfully be ordered. It was consequently a discovery deposition. The court was also extremely doubtful that the evidence was relevant or admissible. Evidence of the Banks’ own fee arrangements could not establish industry standards; that issue should be addressed by expert evidence. Refco’s proposed inquiry into whether the plaintiffs had been informed of similar commissions was speculative and amounted to a fishing expedition.
5. Further requests. The English court should not redraft a broad request where relevance and admissibility are seriously doubtful, particularly when the New York court has not identified the precise evidence required for trial or its likely weight. Any further Letters of Request should follow further consideration by the New York court.

1. Court of Appeal (Civil Division). On 21 November 2001, after full argument, the court refused permission to appeal and ordered the agreed costs.
2. High Court of Justice, Queen’s Bench Division. On 19 July 2001, His Honour Judge Playford QC, sitting as a High Court judge, set aside the Senior Master’s orders against the Banks and refused permission to appeal.
3. Senior Master. The Senior Master had made orders for the oral examination of identified Bank officials and production of documents pursuant to the Letters of Request.