ALEXANDER NIX v EMERDATA LIMITED & ANOR.

The court will not ordinarily exercise direct jurisdiction to compel a foreign non-party to provide disclosure from abroad. The existence of procedural rules for service out does not itself establish jurisdiction. The proper means of obtaining evidence from a foreign party is ordinarily an outgoing letter of request, subject to the same standards governing an incoming request. The court should respect foreign sovereignty and avoid imposing its disclosure standards on a person subject to another jurisdiction, particularly where the application would circumvent the letter of request regime or lacks the specificity required for particular documents.

The claimant brought proceedings arising from the collapse of the Cambridge Analytica business. The defendant applied for third-party disclosure from Schulte Roth and Zabel LLP, a New York-based law firm which had advised the claimant, and sought permission to serve that application out of the jurisdiction and by email.

The court had dismissed the permission application on paper, holding that it had no jurisdiction to make orders against third parties resident outside England and Wales and that the appropriate route was a letter of request or any available local procedure. The defendant sought restoration for oral argument. The central issue was whether the Civil Procedure Rules supplied jurisdiction to serve and pursue an application for third-party disclosure against a foreign non-party.

1. Application refused. Permission to serve the third-party disclosure application out of the jurisdiction was not granted.
2. CPR 6.39 did not imply that an application notice against every non-resident non-party could be served out, nor did the existence of that rule establish that the present application fell within gateway 20(a) of Practice Direction 6B. The defendant’s reasoning that the rule must have the proposed function because otherwise it would have no function was a logical fallacy. Other uses could be identified.
3. C Inc PLC v L & Anor [2001] 1 All ER (Comm) 446 illustrated a materially different context in which jurisdiction existed through the necessary and proper party gateway. ED&F Man Capital Markets LLP v Obex Securities LLC [2017] EWHC 2965 (Ch) was a different case involving pre-action disclosure under CPR 31.16. The judge did not regard it as a sound basis for treating gateway 20(a) as available for the present application.
4. The reasoning in MacKinnon v Donaldson Lufkin & Jenrette Securities Corp [1986] Ch 482 and [1986] 2 W.L.R. 453 supported restraint. Although jurisdiction had existed in that case through an agency gateway, the court had still generally declined to compel a foreign non-party to produce documents held abroad concerning conduct outside England.
5. Masri v Consolidated Contractors International Co SAL [2009] UKHL 43 and [2010] 1 AC 90 pointed against service out of an order requiring examination of a foreign officer under CPR 71. Even if jurisdiction existed here, the court would not use it to circumvent the letter of request regime. Charman v Charman [2006] 1 WLR 1053 and Sony v Panayiotou [1994] Ch 142 supported a single standard for outgoing and incoming requests.
6. The application was acknowledged to be a means of avoiding that regime, and the requested disclosure could not satisfy the requirement for particular documents. The availability of assistance under Title 28 United States Code §1782, and the failure to engage with it, further militated against relief. The application was therefore refused.

not stated in the judgment.