Illinois National Insurance Company & Ors v Tutor Perini Corporation & Anor

Orders made pursuant to a foreign court’s Letter of Request must be directed to the proper person or entity and must specify the documents or matters involved with sufficient precision. Oral examination orders should identify the issues clearly, remain within the pleaded case, and provide fair advance notice of the relevant documentary evidence where examination would otherwise be oppressive. Legitimate lines of enquiry are not invalid merely because they may uncover evidence. Costs ordinarily follow the event where applicants successfully set aside defective orders.

The applicants sought to set aside three orders made pursuant to a Letter of Request from the United States District Court for the Southern District of New York in complex insurance coverage proceedings. Two applicants challenged orders requiring oral examination. The third challenged an order requiring disclosure of documents.

The orders had been made by Masters Fontaine and Roberts. The central issues were whether the orders were properly directed, sufficiently specific, confined to the pleaded issues, and fair in the circumstances. The applicants also argued that the requests were wholly or mainly investigatory.

1. The applications were granted and the three orders made pursuant to the United States court’s Letter of Request were set aside.
2. The document-disclosure order against Shirley Girling was defective. It was made against her personally, although the relevant documents were those of Willis Limited and Willis Limited had refused permission for her to provide documents in her possession or control. The order also required production of categories that were too broad, rather than identifying specific documents.
3. The oral-examination orders concerning Luke Mayhook and Sarah Gregory were also defective. The issues for examination were insufficiently specified and potentially extended beyond the issues in the pleaded case. In the circumstances, it was oppressive and unfair to require examination without advance notice of the documentary evidence relevant to the proposed questioning.
4. The court rejected the general submission that the orders were impermissible because they involved a fishing expedition. The proposed enquiries were legitimate lines of enquiry in the United States proceedings, and there were reasonable grounds for believing that Willis Limited, its servants or agents, might possess relevant oral or documentary evidence.
5. Costs followed the event. Tutor Perini was ordered to pay the applicants’ costs on the standard basis. The court declined to apportion or reduce those costs and ordered detailed assessment, with payments on account.

The judgment concerned applications under CPR Rule 23.10 to set aside orders made by Masters Fontaine and Roberts pursuant to a Letter of Request from the United States District Court for the Southern District of New York.