Buzzfeed Inc & Anor v Gubarev & Ors

Letters of request issued by a foreign court should be given effect so far as possible, but comity does not require the receiving court to defer where the requesting court has plainly not considered the relevance of individual topics. In that event, the receiving court must assess whether the intended witness can reasonably be expected to give relevant evidence on the specified topics, while showing appropriate caution where foreign law is involved. An appellate court should interfere with the Senior Master’s discretionary decision only for an error of principle, failure to consider a material factor, or a decision that is wholly wrong. Protection against oppressive questioning may justify limiting the request, particularly where questioning risks identifying confidential sources through a cumulative or “jigsaw” effect.

BuzzFeed Inc and Ben Smith appealed, and sought permission to appeal, against parts of an order made by the Senior Master following her judgment in [2018] EWHC 512 (QB). The order concerned a Letter of Request issued by a Florida court for the oral examination in England of Christopher Steele under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975.

The Senior Master deleted or narrowed topics concerning Mr Steele’s obtaining and preparation of intelligence and the distribution of the dossier, finding the original request irrelevant in part, overly wide and oppressive. The central issues were whether the topics were relevant and whether the proposed examination was oppressive.

1. The appeal was dismissed on all grounds. The court granted permission to appeal on Grounds 1 and 2 and confirmed the Senior Master’s order.

2. The ordinary starting point is that a Letter of Request from a foreign state to which the 1975 Act applies should be given effect so far as possible: [1978] AC 547 and [1987] 1 QB 433. English courts should not ordinarily second-guess the requesting court’s assessment of relevance: [1985] 1 WLR 331.

3. That approach is qualified where the requesting court has plainly not considered the relevance of the individual topics, or where a broad examination is clearly irrelevant. In those circumstances the receiving court must undertake the relevance assessment. The question is whether the intended witness can reasonably be expected to have relevant evidence to give on the specified topics. Where foreign law is material, an uncontradicted statement from a suitably qualified foreign lawyer deserves considerable deference, although it need not automatically be accepted.

4. The Senior Master was entitled to conclude that the Florida court had not independently considered the relevance of each topic. She was therefore entitled to adopt a merits-based approach. Evidence about the steps taken to obtain information and prepare the December memorandum could not illuminate whether the intelligence was true or false. Evidence about independent verification was potentially relevant, but the broader topics remained unjustified.

5. The restrictions were also a proper exercise of discretion. Advance notice of questions and legal representation did not eliminate the risk that follow-up questions would create a “jigsaw effect”, expose confidential sources or generate forensic disputes during the examination. The Senior Master was entitled to regard questioning about the entire dossier as oppressive, while permitting limited questioning about distribution of the December memorandum.

6. The appellate court’s role was limited. It would intervene only for an error of principle, failure to consider a material factor, or a decision that was wholly wrong because the relevant factors had not been fairly balanced: [2016] EWHC 3268 (QB). No such error was shown.

• High Court (Queen's Bench Division): The Senior Master made an order on 9 November 2017 requiring Mr Steele’s examination pursuant to the Letter of Request. In [2018] EWHC 512 (QB), she deleted or narrowed several topics and imposed safeguards.
• High Court (Queen's Bench Division): In the present judgment, the appeal was dismissed on all grounds and the Senior Master’s order was upheld.