Atlantica Holdings, Inc & Anor v Sovereign Wealth Fund & Ors

Under the Evidence (Proceedings in Other Jurisdictions) Act 1975, jurisdiction to assist a foreign court arises under section 1. Section 2 confers a discretion, subject to statutory limits, rather than a further jurisdictional requirement.

The English court should ordinarily give effect to a letter of request, reflecting comity and international cooperation. It should respect the requesting court’s assessment of relevance where that court has considered the issue on the merits. The English court may assess relevance itself only where the requesting court plainly has not done so and the evidence is clearly irrelevant. Assistance must remain confined to relevant trial evidence and must not become a fishing expedition. Oppression requires a fair balance between the foreign court’s interests and the proposed witness’s interests.

The applicants and BTA Bank applied to set aside, or vary, an order made under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975. The order implemented letters of request from the United States District Court for the Southern District of New York in securities proceedings brought by Atlantica Holdings, Inc, Baltica Investment Holding, Inc and Blu Funds, Inc.

The applicants were resident in England and were required to give oral evidence for use at trial in the United States proceedings. They argued that the examinations were oppressive, irrelevant, and an impermissible fishing expedition pursued for an ulterior purpose. The central issues were the proper approach to relevance, comity, oppression and the limits of assistance under the 1975 Act.

1. The applications were refused. The order for oral examination remained in force.

2. Sections 1 and 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 perform different functions. Section 1 contains the three jurisdictional conditions: an application for evidence in England and Wales, a request from a court exercising jurisdiction elsewhere, and civil proceedings instituted or contemplated before that court. Section 2 provides the discretionary power to make appropriate provision for obtaining evidence, subject to statutory restrictions.

3. The court should ordinarily assist a foreign court so far as proper, practicable and permitted by English law. This reflects comity and the United Kingdom’s international obligations. A request may be refused where it is oppressive, too wide or vague, seeks irrelevant evidence, or amounts to a fishing expedition.

4. The relevance inquiry asks whether the proposed witnesses can reasonably be expected to have relevant evidence on the requested topics and whether the purpose is to obtain evidence for trial rather than to investigate matters generally. The English court should normally rely on the requesting court’s determination. It may consider relevance itself where the requesting court plainly has not done so and the evidence is clearly irrelevant. Whether the requesting court considered relevance is fact specific and must be determined from the wording of the particular letter of request.

5. Judge Furman’s letters expressly stated that the evidence was required for use at trial and that the listed subjects were relevant. The court therefore respected his determination and declined to second-guess it.

6. The short preparation period did not make the examinations oppressive. The applicants had notice of the topics, the documentary material had been reduced, and they had procedural safeguards concerning confidentiality and privilege. The allegation of an ulterior motive was rejected because the letters of request established a legitimate trial purpose and the contrary suggestion was far-fetched.