Peer International Corp & Ors v Termidor Music Publishers Ltd & Anor

The High Court has jurisdiction to order evidence to be taken overseas by a special examiner, even without the consent of every party. The judge hearing the action may appoint himself as the special examiner. The proposed examination is not thereby a sitting of the High Court abroad, so statutory restrictions concerning the places where the High Court sits do not apply.

The jurisdiction is conditional on the foreign government’s prior consent. Where that consent is available and no foreign judicial authority needs to take or arrange the evidence, the more formal Letter of Request procedure is unnecessary. The discretion should be exercised by evaluating practical fairness, including witness attendance, cost, the quality of evidence, the parties’ ability to participate, and any individual security or travel concerns.

The claim concerned ownership and exclusive licensing of copyrights in Cuban musical compositions. During the trial, evidence from witnesses resident in Cuba was required. Video-link arrangements had failed, and the Part 20 Defendant sought to have the witnesses examined in Cuba by the trial judge. The Claimants opposed the application on jurisdictional grounds and proposed alternative venues in British Territories.

The court therefore had to decide whether it possessed jurisdiction to conduct or order overseas examinations without unanimous party consent, whether a Letter of Request was necessary, and whether Cuba or an alternative venue was appropriate.

1. Jurisdiction. Section 71 of the Supreme Court Act 1981 regulated general sittings of the High Court. It did not govern an examination conducted by a special examiner, because such an examination was not a sitting of the High Court. The distinction between an examination before an examiner and a sitting of the court was supported by St Edmundsbury & Ipswich Diocesan Board of Finance & Anor v Clark [197] Ch 323.
2. Power under CPR 34.13. CPR 34.13(4) contained no restriction preventing the High Court judge trying the case from appointing himself as special examiner. If the Government of the country concerned allowed the appointed person to examine witnesses there, the court could make the appointment. The proposed procedure would be private, non-coercive and subject to the foreign country’s control. The judge would have no power to compel attendance, punish contempt or recommend perjury proceedings in England.
3. Letter of Request. A Letter of Request was directed to a foreign judicial authority to take evidence or arrange for it to be taken. It was unnecessary where the foreign government consented to the judge acting as special examiner and no foreign judicial authority was required to participate. This approach was supported by the historical explanation in Panayiotou and others v Sony Music Entertainment (UK) Ltd [1994] Ch 142. If consent were withheld or delayed, the formal Letter of Request procedure would have to be followed.
4. Discretion and venue. The court balanced the competing practical considerations. Cuba avoided substantial foreign-currency travel and accommodation costs for numerous elderly witnesses, preserved familiar surroundings, and enabled the evidence to be seen, heard and tested. The possible absence of a Claimants’ representative because of concerns about travel to Cuba could be addressed by telephone instructions and suitable opportunities to adjourn. The advantages of Cuba substantially outweighed its disadvantages.
5. The judge therefore exercised the jurisdiction, subject to adequate written confirmation of the Cuban Government’s consent, and proposed to appoint himself special examiner. The parties were directed to prepare the necessary machinery and arrangements. The transcripts could subsequently be tendered for admission into evidence in London.