Smith v Phillip Morris Companies Inc. & Ors

Under the Evidence (Proceedings in Other Jurisdictions) Act 1975, the High Court may assist a foreign court only within the statutory limits governing the obtaining of evidence for civil proceedings. Section 2(3) excludes an order against a non-party that is principally an investigatory exercise designed to discover admissible evidence. A court may impose conditions or limitations to cure a defective request, but must not rewrite it or move materially beyond its terms. Although the court generally favours comity and assistance, it should refuse a request that is excessively wide, vague, or oppressive, particularly where it lacks a clear connection with evidence likely to be admissible at trial.

The claimant in Kansas proceedings sought evidence from Mr Keith Dunt, a former employee of British American Tobacco, under a Letter of Request issued by the District Court of Seward County, Kansas. Master Turner ordered Mr Dunt to attend for examination on oath under the Evidence (Proceedings in Other Jurisdictions) Act 1975.

Mr Dunt applied to set aside the order. He argued that the proposed examination was outside the statutory jurisdiction because it was intended to generate new lines of inquiry, and that it was oppressive. The request covered 17 broadly framed topics, many unrestricted by date or subject matter. The central issues were whether the request was within the Act, whether it served an impermissible investigatory purpose, and whether any defect could be cured by imposing conditions.

1. The order was set aside. The court accepted that it generally wished to assist the Kansas court, but the Letter of Request could not properly be acceded to.

2. The jurisdiction was statutory. Section 2(3) of the Evidence (Proceedings in Other Jurisdictions) Act 1975 prevented an order for examination of a non-party where the evidence was sought merely to obtain information reasonably calculated to lead to admissible evidence. That would be an impermissible investigatory exercise, applying the principle in In re Westinghouse Uranium Contract [1978] AC 547.

3. The absence from the Letter of Request of an express statement that the evidence was likely to be relevant and admissible did not itself make the request defective. The court was nevertheless required to consider whether the statutory limits were satisfied. Where there was doubt about relevance, the court should give the benefit of the doubt to the requesting plaintiffs. On that basis, jurisdiction was not refused.

4. That conclusion did not establish a permissible purpose. The request was strikingly wide and the evidence supporting it did not justify its scope. The court concluded that the examination was mainly investigatory and therefore should not be ordered.

5. The request was also oppressive. The witness was entitled to know, within reasonable limits, the matters about which he would be examined. The unrestricted and vague topics failed that requirement.

6. Conditions or modifications could not cure the defects. The proposed restrictions would remain wide-ranging and investigatory, while more stringent restrictions would effectively rewrite the request and take it too far from its original terms. A revised Letter of Request might enable assistance in future, but the court could not reformulate this one.

The order of Master Turner was set aside. Ancillary matters were reserved for further submissions.