Autonomy, Inc (aka HP Autonomy) & Anor v Hussain

An English court should generally assist a foreign court by giving effect to a letter of request, subject to protection against oppression. Where a witness can invoke a foreign privilege against self-incrimination, that privilege may neutralise oppression because no answer is thereby obtained. A stated intention to claim the privilege does not, however, make an examination pointless unless it is clear that the witness could and would refuse every question of substance. Alleged fraud proceedings do not automatically make an examination oppressive. The request must be assessed against the particular pleaded allegations. An examination in advance of other evidence does not, by itself, breach Article 6 rights.

Autonomy Inc and Autonomy Systems Ltd appealed against the Senior Master’s refusal to give effect to a letter of request issued by the United States District Court for the Northern District of California. The request sought the examination of Sushovan Hussain, who was a defendant in related English Chancery fraud proceedings and a non-party in the United States proceedings.

The Senior Master considered that the examination would be oppressive and would infringe Mr Hussain’s rights under Article 6 of the European Convention on Human Rights. She rejected the separate argument that the examination would be pointless because Mr Hussain intended to invoke the Fifth Amendment. The appeal concerned oppression, privilege against self-incrimination, pointlessness and Article 6.

1. Appeal allowed. The Senior Master had erred in principle in her treatment of the Fifth Amendment and had erred in law on Article 6.
2. The English court should generally assist the requesting court. It must nevertheless balance that objective against oppression to the proposed witness. First American Corp v Al Nahyan did not establish that a letter of request is necessarily oppressive whenever fraud proceedings have been brought against the proposed witness. The request must be assessed in the light of the particular pleaded allegations.
3. On the pleadings then before the court, the fraud allegations were insufficiently particularised in relation to at least eight of the nine MicroTech transactions. Leaving aside the Fifth Amendment, an examination concerning those transactions would therefore be oppressive. If the draft amendments were permitted, an examination limited to the Vatican Library and HP transactions could be sufficiently particularised, but examination concerning the remaining transactions would still risk filling gaps in the fraud claim.
4. The Fifth Amendment was available in respect of all questions potentially giving rise to oppression. If Mr Hussain invoked it, there would be no answer capable of being used in civil or criminal proceedings. The Senior Master therefore erred in concluding that the privilege would not neutralise oppression in relation to civil proceedings.
5. The examination was not shown to be pointless. Mr Hussain’s present intention to invoke the privilege in response to every question did not bind him. He might answer background questions or repeat matters already set out in his defence. The high threshold identified in US v Philip Morris Inc was not met.
6. An examination under the letter of request would not infringe Article 6. The circumstances in Dombo Beheer v Netherlands and Wynen v Belgium were materially different. The Fifth Amendment protected against unfairness, the trial judge could control fairness in the Chancery proceedings, and sequential evidence did not itself create inequality of arms.
7. The court accordingly exercised its discretion in principle to order the examination under the Evidence (Proceedings in Other Jurisdictions) Act 1975. Further submissions were invited on the precise form of the order.

• High Court (Queen’s Bench Division): The appeal from paragraph 3 of the Senior Master’s order dated 27 September 2016 was allowed. The court held that an examination should be ordered in principle under the Evidence (Proceedings in Other Jurisdictions) Act 1975.
• Senior Master: The application for the letter of request was refused on grounds of oppression and breach of Article 6. The pointlessness argument was rejected.