Microtechnologies, LLC v Autonomy, Inc (aka HP Autonomy) & Anor

In an examination of a witness for use in foreign proceedings, the court should balance procedural fairness against the requesting party’s need to obtain evidence. The witness should receive sufficient advance material to avoid ambush, but a separate list of questions is not required where the foreign request identifies sufficiently specific topics. Follow-up questions remain permissible within those topics. Under CPR 34.18(2)(a), the court may permit leading questions and cross-examination where the foreign court expressly requests it and the procedure is compatible with English law. Restrictions on collateral use should not be imposed where they would add no protection and risk conflict with the foreign court.

The judgment concerned consequential directions following an earlier decision allowing the Autonomy Parties’ appeal from the Senior Master’s refusal to order the examination of Mr Hussain for use in proceedings before the United States District Court for the Northern District of California. The present hearing addressed the terms on which the examination should proceed and related costs.

The disputed matters were the timing of the document bundle, whether a separate list of questions was required, whether leading questions and cross-examination should be permitted, whether use of the evidence should be restricted, and the appropriate costs orders.

1. Documents. The bundle was to be provided 28 days before examination. Further documents required liberty to apply to the examiner, who could adjourn the examination if necessary.
2. Questions. The examination was confined to the topics in Annex A, as modified. No separate list of questions was required. Follow-up questions remained permissible within that scope.
3. Cross-examination. Leading questions were permitted under CPR 34.18(2)(a). The foreign court’s express request was significant, and cross-examination was compatible with English law: Desilla v Fells (1879) 40 LT 423. It was unnecessary to decide whether Mr Hussain was necessarily hostile.
4. Use of evidence. No additional restriction on use was imposed. The US court should determine use in the substantive proceedings, while the Chancery court retained control over admissibility there. The court distinguished Dendron GmbH v University of California [2005] 1 WLR 200 on the basis that the US court was seised of the substantive proceedings.
5. Costs. Detailed assessment and interim payments were ordered, with the stated percentage awards. There was no order as to costs below relating to the consequential terms, and the Autonomy Parties received 25 per cent of the costs of the hearing.

• High Court (Queen’s Bench Division): The Senior Master’s order of 27 September 2016 refusing an examination was appealed. Mr Justice Morris allowed the appeal in December 2016 and concluded that an examination order should be made.
• High Court (Queen’s Bench Division): The present ruling determined the consequential terms of the examination and related costs. Permission to appeal against the December decision was pending before the Court of Appeal.