Topalsson GmbH v Rolls-Royce Motorcars Limited & Anor

Applications for assistance under the Evidence (Proceedings in Other Jurisdictions) Act 1975 must satisfy the statutory jurisdictional thresholds and remain confined to obtaining evidence for identified civil proceedings. The court should give effect to a foreign letter of request so far as possible, but must prevent fishing expeditions, pre-trial discovery and oppressive or disproportionate requests. Evidence should support bona fide pleaded allegations rather than merely provide useful information or a train of enquiry. Material non-disclosure does not automatically require discharge of an order. The court must assess whether it materially misled the court and may instead re-grant or vary the order subject to protective and costs conditions. Judicial comity and the interests of justice remain central.

The Applicant pursued copyright proceedings in the United States against several US dealerships. The US District Court for the Central District of California issued a letter of request seeking documents and examination evidence from the Respondents in England. The order made by the Senior Master was challenged on grounds including material non-disclosure, lack of relevance and particularity, oppression, and the alleged pursuit of pre-trial discovery.

The Respondents relied on undisclosed English costs and funding-disclosure issues and an ongoing German criminal complaint. The Applicant conceded that several requests would not be pursued. The central issues were whether the statutory jurisdictional requirements were met, whether the non-disclosure justified setting aside the order, and what scope and conditions were appropriate.

1. Jurisdiction. The requirements under the Evidence (Proceedings in Other Jurisdictions) Act 1975 were satisfied. The request had been validly issued by the US court, and the evidence was sought for civil proceedings before that court.
2. Applicable discretion. Judicial comity required the court to assist the requesting court so far as possible. The power remained subject to the statutory limits. It could not be used for a fishing expedition, pre-trial discovery or a train of enquiry. The evidence had to support bona fide pleaded allegations with adequate particulars. Requests could be refused where their width, uncertainty or vagueness made them oppressive, although an appropriate request could be confined where the court could do so without redrafting it.
3. Non-disclosure. The Applicant had failed to disclose material concerning unpaid English costs orders, alleged breaches of funding-disclosure orders and the German criminal complaint. By a small margin, the omissions did not materially mislead the court so as to require discharge. The omission concerning the German complaint nevertheless justified protective conditions. The court would alternatively have re-granted the order on the information then available.
4. Scope of evidence. The US Complaint and supporting evidence disclosed a sufficiently pleaded and evidenced inferential copyright case. The first three software requests were relevant and sufficiently precise. The remaining requests and proposed questioning went beyond what was necessary, relevant and proportionate. Only the first three requests were therefore maintained, as drafted and without alteration.
5. Conditions. The produced software was to be protected by an order mirroring the US Protective Order. In light of the Applicant’s failure to pay the English judgment and costs, the court required advance payment into court of the Respondents’ costs of the application and compliance. That condition was imposed under the court’s case-management powers in CPR 3.1.