Compagnie Des Grands Hotels D'Afrique SA v Purdy & Anor

When an English court receives a letter of request for evidence to be used in foreign civil proceedings, it must balance comity and the requesting court’s legitimate needs against protection of the proposed witness from oppression. The absence of an English-law privilege against self-incrimination for a risk arising solely under foreign law does not require refusal of the order. The court may impose protections and assess whether the risk has been alleviated to a sensible and acceptable degree. Article 6 of the European Convention on Human Rights informs that assessment but does not create an absolute foreign-law privilege. An appellate court should not interfere with the exercise of that discretion absent an error of principle or a decision outside the permissible ambit.

Compagnie des Grands Hôtels d’Afrique S.A. obtained orders under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 and CPR rules 34.17 to 34.21 requiring Sarah Purdy to give evidence, and Maquay Investments Limited to disclose documents, for proceedings in the United States District Court for the District of Delaware. The evidence concerned transactions involving Woodman and Maquay. The same matters were the subject of a Moroccan criminal complaint and investigation involving Ms Purdy and Maquay.

The Senior Master refused to set aside the orders for material non-disclosure and oppression, but varied them to include additional protections. She ordered CGHA to pay 75% of the Purdy parties’ costs. Ms Purdy appealed against the evidence order, and CGHA cross-appealed on costs. The issues were whether the evidence order was oppressive and whether the costs order exceeded the Senior Master’s discretion.

1. Appeal concerning the evidence order dismissed. The court had jurisdiction under section 1 of the Evidence (Proceedings in Other Jurisdictions) Act 1975. Under section 2, the discretion to give effect to a foreign letter of request required the court to assist the requesting court while balancing that interest against the witness’s protection from oppression.
2. The privilege against self-incrimination did not apply as of right to a risk arising from proceedings under Moroccan law. The court nevertheless had power to take the risk of foreign self-incrimination into account and, where appropriate, to excuse the witness or impose protective terms. Article 6 of the European Convention on Human Rights was relevant, but did not make the foreign-law position equivalent to an absolute domestic privilege.
3. The Senior Master was entitled to apply the approach in Akciné Bendrové Bankas Snoras (in bankruptcy v Antonov and another [2013] EWHC 131 (Comm.)) and ask whether safeguards sufficiently reduced the risk in the circumstances. The court was not required to eliminate every conceivable risk of oppression. The Protective Order and CGHA’s undertakings provided protection to a sensible and acceptable degree.
4. The appellate court was reviewing an exercise of discretion, not conducting a rehearing. The Senior Master identified and balanced the relevant factors, applied the correct principles, and reached a conclusion available to her. There was no basis to interfere.
5. Costs cross-appeal dismissed. The Senior Master was entitled to treat CGHA’s failure to disclose the Moroccan criminal complaint and the Delaware Protective Order as serious and central to the without-notice application. It was reasonable for the Purdy parties to raise the non-disclosure and oppression issues. The costs order fell within the generous ambit of discretion.
6. Both the appeal and cross-appeal were dismissed. The parties were directed to seek to agree a draft order.

• High Court (Queen's Bench Division) — On appeal from the Senior Master, the court dismissed Ms Purdy’s appeal against the evidence order and CGHA’s cross-appeal on costs. The Senior Master’s decision is cited as [2020] EWHC 2785 (QB).