Secretary of State for Health & Ors v Servier Laboratories Ltd & Ors

An English court may order a foreign party to provide further information or disclosure even where compliance may expose that party to prosecution under foreign law. Procedure is governed by the lex fori. The foreign prohibition and the real risk of prosecution inform the court’s discretion, but do not remove its jurisdiction.

Council Regulation (EC) No 1206/2001 does not generally require a court to use its cross-border evidence procedures. Recourse is mandatory where evidence in another Member State can in practice be obtained only with the assistance of that State’s judicial or public authorities. Ordinary disclosure and responses to requests for further information may be ordered directly against parties subject to the English court’s jurisdiction.

Three appeals arose from two unrelated competition-law damages claims. In the Servier proceedings, Henderson J ordered French companies to answer specified requests for further information under Part 18 of the Civil Procedure Rules 1998. In the National Grid proceedings, Roth J ordered French companies to give specific disclosure under Part 31.

The companies contended that compliance would infringe the French blocking statute and expose them to criminal prosecution. They argued that the English courts were required instead to use the procedures in Council Regulation (EC) No 1206/2001. The central questions were whether use of that Regulation was mandatory and whether the judges had lawfully exercised their discretion to make direct procedural orders notwithstanding the asserted risk of prosecution.

1. All three appeals were dismissed. The orders for further information and disclosure were procedural orders governed by English law as the lex fori. The possibility that compliance might contravene foreign criminal law did not deprive the English court of jurisdiction to make them. It was a relevant consideration in the exercise of discretion, particularly where there was a real risk of prosecution.

2. Council Regulation (EC) No 1206/2001 was intended to increase and facilitate the available means of obtaining evidence across Member States. It did not remove or restrict procedural powers already available under national law. Its use was therefore not generally mandatory: per Rimer LJ at [98]–[101], Beatson and Laws LJJ agreeing.

3. ProRail was confined to evidence which could in practice be obtained in another Member State only with the assistance of that State’s judicial or public authorities. In that situation, a court-to-court request under the Regulation was required. The present orders involved no such exercise of foreign public authority. They operated directly against parties which had submitted to the English court’s jurisdiction.

4. A response to a Part 18 request did not appear to be the taking of evidence within the Regulation. Nor should ordinary disclosure be equated with taking evidence in another State. A direct disclosure order was the just and efficient course. A court-to-court request would have been slow, cumbersome and potentially inadequate, particularly if further disclosure later became necessary.

5. Neither Henderson J nor Roth J had erred in exercising his discretion. The risk of prosecution under the French blocking statute remained theoretical or highly unlikely. The sole identified prosecution, Christopher X, involved exceptional deception by a French lawyer acting without the protection of a court order. The French Ministry of Justice’s inability to guarantee that no prosecution would occur did not increase the risk or undermine Henderson J’s original assessment.

• Court of Appeal (Civil Division): By [2013] EWCA Civ 1234, dismissed all three appeals and affirmed the interlocutory orders.
• High Court, Chancery Division: In the Servier proceedings, Henderson J ordered responses to specified Part 18 requests and later gave case-management directions: [2012] EWHC 2761 (Ch) and [2012] EWHC 3663 (Ch).
• High Court, Chancery Division: In the National Grid proceedings, Roth J ordered the French defendants to give specified disclosure: [2013] EWHC 822 (Ch).