VOLUNTARY PURCHASING GROUP INCORPORATED v. INSURCO INTERNATIONAL LIMITED 10-March-1994
[1994–95 CILR 84]
VOLUNTARY PURCHASING GROUP INCORPORATED v. INSURCO INTERNATIONAL LIMITED
GRAND COURT (Smellie, J.): March 10th, 1994
Evidence—assistance to foreign court—examination of documents and witnesses—under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(b), “civil proceedings” include post-judgment discovery since parties still enjoined over issue and proceedings not yet completed
Evidence—assistance to foreign court—examination of documents and witnesses—party to foreign proceedings can be required to give evidence under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978—procedure not restricted to non-party witnesses
Evidence—assistance to foreign court—examination of documents and witnesses—court to assist as matter of comity to extent permissible under Cayman law—to salvage as much of request as possible without changing nature—may strike out or modify references to documents requested which do not meet specificity required by Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.2(4)
Evidence—assistance to foreign court—examination of documents and witnesses—under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.2(4), may specify documents individually or by compendious description, if evidence establishes existence and likelihood of being in control of witness—where unrealistic to require direct evidence, court may infer existence and likelihood
Evidence—assistance to foreign court—examination of documents and witnesses—inappropriate for court to determine for purpose of oral examination, relevance of issues to foreign proceedings without specific instructions from foreign court
  The defendant company sought the discharge of an ex parte order, granted upon an application by letters rogatory from a Texas court, for judicial assistance in obtaining evidence material to proceedings in that court.
  Judgment had been obtained by the plaintiff company in the Texas proceedings by default. At the post-judgment discovery stage, the Texas court issued letters rogatory seeking judicial assistance pursuant to the
1994–95 CILR 85
Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978. The order made by the Grand Court provided, inter alia, for the appointment of an examiner to record the oral evidence of the secretary of the defendant company, which had its headquarters in the Cayman Islands, and for the production by the secretary of classes of documents (described in the schedule to the letters rogatory) belonging to the defendant company. It was agreed that the secretary was a party to the Texas proceedings. The order was, by its nature, provisional and the defendant company sought its discharge.
  The defendant company submitted that the court had had no jurisdiction to grant the order because (a) the proceedings for which the evidence was to be used were not in the nature of a trial, judgment having already been given by default, and therefore did not amount to “civil proceedings” within the meaning of s.1(b) of the Schedule to the 1978 Order; (b) the secretary of the company was a party to the Texas action and it was the intention of the 1978 Order that it should only be used as a means of obtaining evidence from strangers to an action; and (c) the nature of the request fell short of the standard of specificity required by s.2(4) in that there was insufficient proof of the existence of the documents.
  The plaintiff company submitted in reply that the court had had jurisdiction to grant the order because (a) the parties were still enjoined over post-judgment discovery in proceedings which were classified as “civil” under the laws of Texas and the Cayman Islands and therefore the proceedings were “civil proceedings” within s.1(b); (b) there was nothing to suggest that the parent 1975 Act or its precursor, the Foreign Tribunal Evidence Act 1856, provided for the obtaining of evidence only from strangers to the action and consequently the 1978 Order was not so restricted; (c) s.24 of the Schedule to the 1978 Order did not, however, apply to a party to an action, and so the letter of request for evidence to be obtained from the secretary did not need to comply with its requirements; (d) in any event, it was unrealistic to require direct evidence of the existence of the documents requested but reasonable inferences could be drawn as to their existence.
  Held, affirming the order with amendments:
  (1) The Texas proceedings, which had reached post-judgment discovery, amounted to “civil proceedings” within the meaning of s.1(b) of the Schedule to the 1978 Order since that expression included all the procedural steps taken in the course of proceedings from their institution up to and including their completion; and (a) the proceedings were regarded as “civil” by the laws of Texas and the Cayman Islands; (b) the parties were still enjoined before the court over the issue of post-judgment discovery; and (c) it was not for the court to narrow the definition of “civil proceedings” by reference to the stage an action had reached. Although the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, which was implemented by the 1978 Order, precluded requests for the execution or enforcement of a foreign
1994–95 CILR 86
judgment, the present request was merely one for evidence which might lead to later attempts to enforce the judgment, and to refuse to grant assistance in such a case would therefore be to impose an unintended restriction upon the operation of the 1978 Order (page 92, line 7 – page 94, line 37).
  (2) The 1978 Order permitted the court to make an order that a party to an action be required to give evidence within the Cayman Islands in response to a request from a foreign court. There was nothing to suggest that the parent 1975 Act or its precursor, the Foreign Tribunal Evidence Act 1856, provided for the obtaining of evidence only from strangers to the action. Moreover, the terms of s.2(4) of the schedule to the 1978 Order, designed to preclude “fishing expeditions,” provided that “a person,” irrespective of status in the suit, should not be required to respond to a request of that nature (page 95, lines 30–42).
  (3) The court would therefore assist the Texas court as a matter of comity, to the extent that it was permissible to do so under Cayman law, following the principle that it would salvage what it could of the request, whilst ensuring that it did not change it into something completely different. Accordingly, the references to the documents sought which did not meet the standard of specificity required by s.2(4) of the Schedule to the 1978 Order would be struck out or modified. “Particular documents” had to be specified, either individually or by compendious description, provided that evidence was produced to establish the existence of the documents and that they were likely to be in the control of the witness. In this particular case, it was unrealistic to require direct evidence of their existence, though reasonable inferences could be drawn as to their likely existence and their control by the witness, since they were records of the type of business carried on by the defendant company and of the type of property which it was reasonable to expect that it had acquired. In addition, the witness producing the documents would be required to give oral testimony relevant to the documents and any other oral testimony pursuant to the letters rogatory relevant to the proceedings in Texas, though it would be inappropriate for the court to attempt to determine which matters would be so relevant without specific instructions from the Texas court (page 98, lines 4–37).
Cases cited:
(1)    Asbestos Ins. Coverage Cases, Re, [1985] 1 W.L.R. 331; [1985] 1 All E.R. 716.
(2)    Boeing Co. v. PPG Indus. Inc., [1988] 3 All E.R. 839.
(3)    Gross, Re, ex p. Treasury Solicitor, [1968] 3 All E.R. 804; sub nom. Extradition Act 1870, In re, ex p. Treasury Solicitor, [1969] 1 W.L.R. 12.
(4)    International Power Indus. NV, Re, [1985] BCLC 128, distinguished.
(5)    Penn-Texas Corp. v. Murat Anstalt, [1964] 2 Q.B. 647; [1963] 1 All E.R. 258.
1994–95 CILR 87
(6)    Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434, applied.
(7)    State of Norway’s Application, In re, [1987] Q.B. 453; [1989] 1 All E.R. 745, applied.
(8)    U.S. v. Carver, 1980–83 CILR 297, applied.
(9)    Westinghouse Elec. Corp. Uranium Contract, Re, [1978] A.C. 547; [1977] 3 All E.R. 703, dicta of Lord Denning, M.R. applied.
Legislation construed:
Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, s.1: The relevant terms of this section are set out at page 88, lines 20–32.
Schedule, s.2(3): The relevant terms of this sub-section are set out at page 88, lines 37–40.
Schedule, s.2(4): The relevant terms of this sub-section are set out at page 88, line 42 – page 89, line 4.
C.G. Quin for the plaintiff;
R.N.A. Henriques, Q.C. and D.E. Nicol for the defendant.

               SMELLIE, J.: By summons dated October 28th, 1993 the defendant 
  seeks the discharge of an ex parte order made herein on October 1st, 1993. 
  The ex parte order was made pursuant to letters rogatory from the 141st 
  District Judicial Court of Tarrant County, Texas. The order provided, 
25  among other things, for the appointment of an examiner to record the oral 
  evidence of a witness, the secretary of the defendant company, which has 
  its corporate headquarters in the Cayman Islands. That witness is also 
  required by the order to produce classes of documents belonging to the 
  defendant company and described in the schedule to the letters rogatory. 
30  The ex parte order was, by its nature, a provisional order (see U.S. v. 
  Carver (8) (1980–83 CILR at 309)) and it follows that the defendant has 
  locus standi in these proceedings to seek its discharge (see Boeing Co. v. 
  PPG Indus. Inc. (2)). 
    The defendant raises three main objections. The first is that there was no 
35  jurisdiction to make the order or to grant the request of the Texas court, as 
  the proceedings contemplated by the request do not come within the 
  meaning of “civil proceedings” as that expression appears in the enabling 
  legislation, the Evidence (Proceedings in Other Jurisdictions) (Cayman 
  Islands) Order 1978 (“the 1978 Order”). The second ground of objection is 
40  that the 1978 Order was never intended to be a means by which parties to 
  an action could obtain inter partes discovery or interrogatories in the 
  action but instead was intended only to assist parties to obtain evidence 
  abroad from strangers to the action who would otherwise not be amenable 
  for those purposes. If that is so, there would, on this ground also, be no 
45  jurisdiction to grant the request, as the respondents are respectively the 
1994–95 CILR 88

         defendants to the action and an officer of the defendant. The third ground 
  of objection is of the more usual kind, that the request lacks specificity and 
  that it falls foul of the restrictions contained in s.2(4)(a) and (b) of the 
  Schedule to the 1978 Order. After considering the general principles 
5  which the decided cases have developed for the guidance of the court and 
  which must be applied to this particular matter, I will then turn to deal with 
  each ground of objection in turn. 
    General Principles 
10    The jurisdiction of the court to grant letters rogatory is entirely statutory 
  (see Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp. (6)). The enabling 
  provisions are contained in the 1978 Order which extends the operation of 
  the United Kingdom Evidence (Proceedings in Other Jurisdictions) Act 
  1975, as modified and adopted, to the Cayman Islands. The provisions of 
15  the 1978 Order which are to be construed for the purposes of this 
  application, are contained in the Schedule to the Order and are s.1(a) and 
  (b); s.2(1) and (2)(a) and (2)(b) and (3); and s.2(4)(a) and (b). 
    Certain provisions of s.1(a) and (b) and of s.2(4)(a) and (b) are of 
  particular importance and I set them out below: 
20        “1. Where an application is made to the Grand Court for an order 
      for evidence to be obtained in the Cayman Islands, and the court is 
      satisfied— 
          (a)    that the application is made in pursuance of a request issued 
                  by or on behalf of a court or tribunal (‘the requesting court’) 
25                  exercising jurisdiction in a country or territory outside the 
                  Cayman Islands; and 
          (b)    that the evidence to which the application relates is to be 
                  obtained for the purposes of civil proceedings which either 
                  have been instituted before the requesting court or whose 
30                  institution before that court is contemplated, 
      the Grand Court shall have the powers conferred on it by the 
      following provisions of this Act.” 
    Section 2 then describes the sort of orders which the Grand Court may 
  make in its discretion for the purposes of giving effect to the request of the 
35  foreign court. They include orders for the examination of witnesses, either 
  orally or in writing, and for the production of documents. Section 2(3) 
  contains the caveat that “an order made under this section shall not require 
  any particular steps to be taken unless they are steps which can be required 
  to be taken by way of obtaining evidence for the purposes of civil 
40  proceedings.” 
    Section 2(4) reads: 
        “An order under this section shall not require a person— 
          (a)    to state what documents relevant to the proceedings to which 
                  the application for the order relates are or have been in his 
45                  possession, custody or power; or 
1994–95 CILR 89

                 (b)    to produce any document other than particular documents 
                  specified in the order as being documents appearing to the 
                  court making the order to be, or to be likely to be, in his 
                  possession, custody or power.” 
5  This provision contains in statutory form the prohibition against pre-trial 
  discovery and was specifically included in the parent 1975 Act as an 
  expression of the UK Government’s reservation which was declared 
  pursuant to art. 23 of the Hague Convention on the Taking of Evidence 
  Abroad in Civil or Commercial Matters upon accession to the Convention 
10  (see Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp. (6) ([1978] 1 All 
  E.R. at 442 and 455)). That reservation specifically prohibits courts in the 
  United Kingdom (and hence this court) from granting letters rogatory in 
  aid of pre-trial discovery. 
    It is the basis of the defendant’s third ground of objection that the 
15  request fails to observe this prohibition against pre-trial discovery but is, 
  instead, a fishing expedition in search of information which may lead to 
  the discovery of evidence. 
    In this regard the general principle is that the request, to be allowed, 
  must be for evidence, that is direct evidence, which can be itself used in 
20  the proceedings in the foreign court. Roving enquiries for information, 
  which in turn may or may not lead to evidence admissible in the foreign 
  proceedings, are not permitted and the court has no power to assist such 
  enquiries (see Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp. (6)). 
    The procedure which governs the exercise of the jurisdiction in the 
25  Cayman Islands to grant requests for international judicial assistance is set 
  out in O.70 (in conjunction with rules specified in O.39) of the English 
  Rules of the Supreme Court (see U.S. v. Carver (8)). 
    Put in general terms this court has a duty to assist the foreign court to the 
  extent that it is proper to do so under local law. This principle reflects 
30  judicial and international comity and it conforms with the provisions of the 
  Hague Convention and the spirit of the 1978 Order. Full faith and credit 
  must be given to the request of the foreign court just as full faith and credit 
  would be given to a foreign judgment. 
    The following extract is the statement of principles taken from 1 The 
35  Supreme Court Practice 1991, para. 70/1–6/2, at 1143–1144 and culled 
  from the leading English cases. These were applied by the Cayman Court 
  of Appeal in the leading local case of U.S. v. Carver (8). I have set them 
  out in extenso because they all fall to be considered in my assessment of 
  the submissions made on both sides in the present matter. 
40        “As a matter of jurisdiction, in the ordinary way and in the absence 
      of evidence to the contrary the English Court should be prepared to 
      accept the statement of the foreign Court in its request that the 
      evidence is required for the purposes of civil or criminal proceedings, 
      as the case may be, in that Court. . . . On the other hand, the form of 
45      the letter of request is not conclusive; the Court must examine the 
1994–95 CILR 90

             request objectively by the nature of the testimony sought . . . and has 
      to look at the substance of the matter . . . but it may have regard to 
      what was said in the foreign Court when the request for evidence was 
      issued. . . . 
5        As a matter of discretion . . . the English court should exercise its 
      discretion to make the order asked for unless it is satisfied that the 
      application would be regarded as falling within the description of 
      frivolous, vexatious or an abuse of the process of the Court. . . . 
        The English Court has the power to accept or reject the foreign 
10      request in whole or in part, whether as to oral or documentary 
      evidence, and it can and should delete from the foreign request any 
      parts that are excessive either as regards witnesses or as regards 
      documents. The English Court will act on the principle that it . . . 
      should decline to comply with the foreign request in so far as it is not 
15      proper or permissible or practicable under English law to give effect 
      to it. The English Court, moreover, ought not to embark on the 
      process of re-structuring or re-casting or re-phrasing the foreign 
      request so that it becomes different in substance from the origi- 
      nal request. The Court has no power so to modify the original foreign 
20      request as to substitute a different category of documents for the 
      category which has been requested by the foreign Court.” 
    A further statement of general application is that the foreign request 
  must be examined to ensure its compliance with the 1978 Order, in 
  particular as to documents requested. The classes of documents must be 
25  clearly defined with particularization of the actual documents and it must 
  be shown that there is good reason to believe that the documents actually 
  exist (see Re Asbestos Ins. Coverage Cases (1) ([1985) 1 All E.R. at 721)). 
  In applying these standards it must be borne in mind that the witness will 
  be responding to a subpoena duces tecum with the attendant penal 
30  sanctions which could flow from non-compliance. A person placed in that 
  position should not be required to cast about for documents which might 
  or might not meet the subpoena but instead should be left in no doubt as to 
  what is required of him (Re Westinghouse Elec. Corp. Uranium Contract 
  (9), per Lord Denning, M.R. ([1977] 3 All E.R. at 710)). Nonetheless, the 
35  standard of particularity required in any given case must be considered in 
  the context of the circumstances of the case and having regard to the 
  nature of the documents to be subpoenaed (U.S. v. Carver (8) (1980–83 
  CILR at 319)). 
40    1. Does the application come within the meaning of “civil pro 
  ceedings”? 
    This request is brought pursuant to section 1(b) of the Schedule to the 
  1978 Order and as such must qualify as a “civil proceeding” within the 
  meaning of that expression as it is there used. The courts have eschewed 
45  any attempt to define or delimit this by categorization and the general 
1994–95 CILR 91

         definition most often cited is taken from Re Gross, ex p. Treasury Solicitor 
  (3) ([1968] 3 All E.R. at 806) where Chapman, J. referred to civil or 
  commercial matters as “wide general terms covering all kinds of suits, 
  petitions, summonses, applications for orders, etc., of which courts are 
5  competent to take cognisance.” Notwithstanding that wide general 
  definition, Mr. Henriques for the defendant submitted that there is dicta in 
  many cases which suggest that the foreign proceedings must involve or 
  contemplate a “trial” of issues between parties and that a “post-judgment 
  discovery” procedure of the type involved in this request would be 
10  excluded. 
    The letter of request itself is not comprehensively framed. It fails to 
  provide a description of the nature of the proceedings pending before the 
  Texas court. For that purpose I have been referred to the motion for 
  issuance of the letters rogatory which was filed in the Texas court seeking 
15  the letters from that court. In the preamble to that motion, it is stated that 
  the plaintiff, “VPG, has obtained a default judgment in this action and is 
  now seeking to conduct post-judgment discovery.” It continues: 
        “VPG has served counsel of record for the defendant Insurco and 
      Agrichem with a notice of its intent to take depositions of the 
20      corporate representatives of each defendant and has provided each 
      defendant with a list of the documents it would like them to produce 
      and the particular subject about which it would like the defendant’s 
      designated representatives to testify. However, counsel for VPG has 
      been informed that the defendants’ counsel of record is no longer 
25      authorized to accept service on behalf of the defendant and VPG 
      must therefore proceed with this application for letters rogatory.” 
  This is the extent to which the background is provided by the foreign court 
  documentation. 
    The affidavit filed in this court of R. Douglas Rees, VPG’s attorney in 
30  Texas, states that— 
      “the post-judgment discovery sought by VPG in connection with the 
      Texas action is a normal course of procedure in Texas when a party 
      has had a judgment entered against them and has refused to pay that 
      judgment. Routine post-judgment discovery includes not only 
35      written discovery but depositions or examinations of persons who 
      might have knowledge of the identity and locations of any assets 
      belonging to the party against whom the judgment has been 
      rendered.” 
    Mr. Henriques has observed that the background information does not 
40  verify that the proceedings pending before the Texas court are in the 
  nature of an issue to be tried between the parties, rather that they refer to 
  nothing more than a roving and investigative procedure designed to 
  discover whether there might be assets against which the default judgment 
  might be enforced. That sort of enquiry, he submitted, is not within the 
45  meaning of “civil or commercial matter.” In support of that submission he 
1994–95 CILR 92

         relied on a judgment of the English High Court (Re International Power 
  Indus. NV (4)), in which it was held that the 1975 Act was not to be used as 
  fact-finding machinery in connection with an investigation of the affairs of 
  a company which was being reorganized by a trustee-in-bankruptcy in the 
5  United States and where no contested court proceedings were con- 
  templated. 
    I am not persuaded that a true parallel can be drawn between that case in 
  which the trustee-in-bankruptcy was acting unilaterally in the course of his 
  investigations, albeit under the supervision of the court, and the present 
10  matter in which it appears that the parties are still enjoined before the 
  Texas court over the issues of post-judgment discovery and enforcement 
  of the default judgment. Rather, I am inclined to the view posited by Mr. 
  Quin on behalf of the plaintiff, that a fair parallel is to be drawn with the 
  procedure set out in O.48 of the English Rules of the Supreme Court 
15  which would be applicable in the Cayman Islands. This is the procedure 
  for the examination of a judgment debtor which, under Cayman law, 
  allows an examination into the means and property a debtor has to satisfy 
  the judgment. Here the foreign judgment, although under challenge in the 
  American court, still stands and the parties remain enjoined before the 
20  Texas court over issues involving its enforcement. 
    The main thrust of Mr. Henriques’ submission in respect of this ground 
  seeks to advance a requirement that the foreign proceedings to be assisted 
  must be in the nature of a trial, strictly speaking. By that I understood him 
  to mean that the evidence must be intended for use at the main trial for the 
25  purpose of advancing the plaintiff’s case or for damaging the defendant’s 
  case. By that measure, as this matter had gone by default and judgment 
  had been obtained, there could no longer be a “trial” in that sense and this 
  court therefore would have no jurisdiction to grant the request. 
    He referred to various dicta in a number of cases which in fact involved 
30  requests for evidence to be used at a main trial, most notably the following 
  dictum from the speech of Viscount Dilhorne (on this aspect in agreement 
  with the majority views) in Rio Tinto Zinc Corp. v. Westinghouse Elec. 
  Corp. (6) ([1978] 1 All E.R. at 450): 
      “If the court is not satisfied that evidence is required, direct evidence 
35      for use at a trial as contrasted with information which may lead to the 
      discovery of evidence, however much the court may be disposed to 
      accede to the request, it has no power to do so. As I see it it has no 
      discretion in the matter.” 
  It is the use of the word “trial” in that context on which Mr. Henriques 
40  would seek to lay emphasis. 
    I do not agree. The proper emphasis there, as indeed in the other 
  passages cited, with reference to “trial” was upon the difference between, 
  on the one hand, direct evidence which could itself be used in proceedings 
  in a foreign court of competent jurisdiction and on the other, information 
45  which may lead to the discovery of such evidence. The word “trial” in that 
1994–95 CILR 93

         context being nothing more than a general reference to proceedings before 
  such a competent foreign court. So too I would regard the use of the word 
  by Lord Diplock in his speech in Rio Tinto Zinc Corp. v. Westinghouse 
  Elec. Corp. (6) (ibid., at 462). That “civil proceedings” is to be given a 
5  wide and permissive interpretation is also to be gleaned from that speech, 
  in which Lord Diplock said (ibid., at 461–462): 
      “In my view, ‘civil proceedings’ includes all the procedural steps 
      taken in the course of the proceedings from their institution up to and 
      including their completion and, if the procedural system of the 
10      requesting court provides for the examination of witnesses or the 
      production of documents for the purpose of enabling a party to 
      ascertain whether there exists admissible evidence to support his own 
      case or to contradict that of his opponent, the High Court has 
      jurisdiction to make an order under the 1975 Act. Any limitation on 
15      the use of this procedure for the purpose of ‘fishing’ discovery is, in 
      my view, to be found in s.2.” 
  For the further reason that by acceding to Mr. Henriques’ submissions I 
  would be delimiting the categories of proceedings in a manner hitherto 
  avoided by the courts, I also decline to do so. 
20    From all the material before me, including the transcript of submissions 
  made to the Texas court, I have been able to glean that the parties are still 
  enjoined over the business of post-judgment discovery and enforcement of 
  the judgment. Those are issues remaining as between the parties to be 
  determined by the Texas court. 
25    I should add that I have considered the Hague Convention itself in 
  arriving at the decision on this aspect of the matter as the parent 1975 Act 
  was promulgated with the expressed intention of ratifying the Convention. 
  Article I states that “a judicial authority of a Contracting State may . . . 
  request the competent authority of another Contracting State . . . to obtain 
30  evidence, or perform some other judicial act.” The article however 
  contains the following caveat: “The expression ‘other judicial act’ does 
  not cover the service of judicial documents or the issuance of any process 
  by which judgments or orders are executed or enforced, or orders for 
  provisional or protective measures.” One of the effects of that caveat, as 
35  Mr. Henriques correctly submits, is to preclude the use of the Convention 
  for the purpose of the reciprocal enforcement of foreign judgments. For 
  that purpose resort must be taken to some other arrangement or, where 
  there is none, the judgment must be sued upon. 
    Nonetheless, I do not consider that caveat to be applicable to the present 
40  case. Shortly put, the distinction is to be found in the wording of art. I 
  itself. This request does not entail “the issuance of any process by which a 
  judgment or order is to be executed or enforced.” To widen the 
  interpretation of that caveat so as to preclude the seeking of evidence 
  which may lead to later efforts to enforce the foreign judgment would be 
45  engrafting an unnatural and unnecessary impediment upon the operation 
1994–95 CILR 94

         of the Convention and hence upon the intendment of the 1975 Act and the 
  1978 Order. 
    The House of Lords in In re State of Norway’s Application (7) held that 
  on the true construction of the 1975 Act the question whether proceedings 
5  were a “civil or commercial matter” depended on the classification of 
  those proceedings according to the law of the requesting court and the law 
  of the court to which the request was made (the English law), since the 
  classification could not be made by reference to any internationally 
  acceptable classification. It has already been demonstrated in my view, 
10  both under the law of Texas and of the Cayman Islands, that the 
  proceedings in issue would be regarded as civil proceedings and I 
  conclude it is not for this court to seek to define such proceedings narrowly 
  simply by reference to the stage which they have reached—in this case, 
  the post-judgment discovery stage. 
15    The distinction between the obtaining of evidence for use in a foreign 
  court for the internal advancement in the foreign court of a procedure 
  which itself may not qualify as a civil proceeding within the meaning of 
  the statute (e.g. the enforcement of a foreign revenue enactment or the 
  enforcement of a foreign judgment) and the direct enforcement of such a 
20  measure is an important distinction noted in the decision in In re the State 
  of Norway’s Application (7). It is a distinction to be noted in the context of 
  this matter where the request is for evidence which it is hoped will 
  advance the plaintiff’s case for enforcement of the foreign judgment but 
  is not in itself a request for that enforcement. 
25    The foreign request, I have already noted, is not very well drafted. It 
  offered only an oblique reference to the nature of the proceedings pending 
  in Texas. By virtue of the general principles already cited, I would have 
  been at liberty to have the matter referred back to the Texas court for 
  clarification. There is, however, sufficient information from some of the 
30  material which was before the Texas court and which has been referred to 
  me to enable me to arrive at the view already expressed and at the decision 
  I have reached. Consequently, I saw no need to require that reference 
  back. 
    I can find no good reason of policy or of interpretation to hold that the 
35  Texas proceedings are not to be regarded as falling within the ambit of 
  “civil proceedings” for the purposes of s.1(b) and s.2(3) of the Schedule to 
  the 1978 Order. 
    2. Does the 1978 Order allow the obtaining of evidence from parties to 
40  an action? 
    This aspect of the defendant’s argument is not without some difficulty 
  for, as Mr. Henriques observed, in the ordinary course the foreign court 
  has the parties to the action before it, amenable to its orders and directions, 
  and would therefore not require the assistance of another court to secure 
45  the evidence of the parties which is required for its proceedings. It 
1994–95 CILR 95

         therefore follows, he submitted, that the 1978 Order was never intended to 
  allow the seeking of evidence from parties to an action but, instead, covers 
  only evidence to be obtained from strangers or persons not parties to the 
  action. If this is correct, it would follow that this court would have no 
5  jurisdiction to direct compliance with the request in this matter as it seeks 
  the evidence of the competent officer of the defendant company, Mr. John 
  Law, in his capacity as secretary of the company. 
    Mr. Quin did not demur that Mr. Law was for present purposes to be 
  regarded as a party to the action. He disagreed, however, that there was to 
10  be any such restriction as that contended for by Mr. Henriques upon the 
  operation of the statute. In fact, he positively submitted that as Mr. Law is 
  a party, s.2(4) of the Schedule to the 1978 Order does not apply to the 
  seeking of evidence from him, as the restrictions therein contained are 
  concerned with the seeking and obtaining of evidence from a third party or 
15  stranger to the action. If that is so, the request in this matter would need 
  only comply with the requirements of ss. 1 and 2(3) of the Schedule to the 
  1978 Order to found the jurisdiction in this court to grant the request. The 
  standards of particularity contained in s.2(4) would, in that event, have no 
  bearing on this request. 
20    The force of Mr. Quin’s submission in this regard comes from the 
  historical fact already mentioned, that the equivalent of s.2(4) was 
  included in the 1975 Act to give statutory expression to the UK’s 
  reservations against the use of the Convention for the purposes of pre-trial 
  discovery (in the sense normally taken in the United States in particular) 
25  against non-parties to an action. In other words, in the now tried and 
  proven phrase, to preclude “fishing expeditions” (see Rio Tinto Zinc Corp. 
  v. Westinghouse Elec Corp. (6), per Lord Wilberforce ([1978] 1 All E.R. 
  at 442)). 
    Nonetheless, I find I am unable to agree with Mr. Quin on that narrow 
30  application of the sub-section. While it precludes pre-trial discovery as 
  against non-parties or strangers to the action, I am of the view that it also 
  would preclude fishing expeditions generally and irrespective of the status 
  of the person responding to a request. The sub-section explicitly provides 
  that an order under that section shall not require “a person” responding to a 
35  request to give general or unrestricted discovery. I regard that as applying 
  to any person required to respond to a request by the provision of 
  documentary evidence. The exclusion of fishing expeditions is a general 
  exclusion notwithstanding that the legislators may have been specifically 
  concerned at the time of accession to the Convention not to allow non- 
40  parties to be the victims of free-roving pre-trial discovery. The appropriate 
  restrictions, to be applied on the ambit of the evidence to be obtained from 
  Mr. Law, will therefore be reflected in the final order. 
    By the inverse application of this interpretation it follows that I do not 
  accept Mr. Henriques’ submission that only non-parties or strangers to the 
45  foreign action can be directed to give evidence in response to a request. 
1994–95 CILR 96

         For this submission, Mr. Henriques relied heavily on the following 
  passage from the speech of Lord Wilberforce in Rio Tinto Zinc Corp. v. 
  Westinghouse Elec. Corp. (ibid., at 442): 
        “These provisions, and especially the words ‘particular documents 
5      specified in the order’ (replacing ‘documents to be mentioned in the 
      order’ in the 1856 Act) together with the expressed duty of the 
      English court to decide that the documents are or are likely to be in 
      the possession, custody or power of the person called on to produce, 
      show in my opinion that a strict attitude is to be taken by English 
10      courts in giving effect to foreign requests for the production of 
      documents by non-party witnesses. They are, in the words of Lord 
      Goddard, C.J., not to countenance ‘fishing expeditions.’ ” [Emphasis 
      supplied.] 
  That passage follows immediately on in the context of his Lordship’s 
15  discussion of the historical background to sub-s. 4. It was decided that the 
  sub-section had its genesis in the reservation, earlier mentioned, made 
  under art. 23 of the Convention. The reference in that context to “non- 
  party witnesses” must be viewed against that background. 
    What is more, the House of Lords was in fact there dealing with a case 
20  involving non-party witnesses. The present question did not arise for 
  consideration and indeed does not seem to have arisen before in any of the 
  reported cases. 
    Nothing in that context, to my mind, implies that the statute should not 
  also be a vehicle for the obtaining of evidence abroad from witnesses who 
25  may be described as “party witnesses,” as it is agreed Mr. Law may be 
  described. 
    Throughout the speeches in the House of Lords and in the Court of 
  Appeal in the Westinghouse case (9), there were historical references to 
  the Foreign Tribunal Evidence Act 1856, the precursor to the 1975 Act. 
30  The passage I find most helpful in the present context comes from the 
  opinion of Lord Denning, M.R. (Re Westinghouse Elec. Corp. Uranium 
  Contract (9) ([1977] 3 All E.R. at 708–709)): 
        “The 1856 Act has now been replaced by the Evidence 
      (Proceedings in Other Jurisdictions) Act 1975. It was passed so as to 
35      give effect to a convention held at The Hague in 1968. It makes new 
      provision for enabling the High Court to assist foreign courts in 
      obtaining evidence here. Section 2 is expressed in much wider 
      language than the 1856 Act. The High Court is empowered to make 
      provision for the examination of witnesses, for the production of 
40      documents, for the inspection of property and many other things 
      which were not within the 1856 Act at all. So long as the evidence is 
      required for use in civil proceedings, the request of the foreign court 
      should usually be granted, provided that the evidence is relevant to the 
      issues in dispute in the foreign court. (The only limitations are those 
45      contained in ss. 2(4) and 3. They require separate consideration.)” 
1994–95 CILR 97

         Thus, subject to the prohibition against “fishing expeditions” contained in 
  s.2(4), the modern legislation is to be viewed as widening the ambit of the 
  courts’ jurisdiction. 
    No judicial pronouncement in relation to the 1975 Act or its precursor, 
5  the 1856 Act, has been brought to my attention which would conclusively 
  suggest that this statutory scheme enabled the obtaining of evidence only 
  from persons who are strangers to the foreign proceedings which are to be 
  assisted by the request. The expressions “any witness or witnesses” and 
  “any person” as they appeared in the 1856 Act, s.1, in relation to assistors 
10  who could be directed to give evidence, were in the widest terms. Nothing 
  in that section suggested that a particular category, i.e. parties to the 
  foreign action, were to be excluded. While it may be said that the early 
  Victorian Parliament never contemplated the existence of a modern 
  corporate entity which could find itself as a party to proceedings in a 
15  foreign jurisdiction while maintaining its physical presence outside of that 
  jurisdiction, that cannot be said of the promulgators of the modern Act. 
  Such are the parties here and Mr. Law, the officer based in the Cayman 
  Islands, is as remote and inaccessible for practical purposes to the Texas 
  proceedings as any non-party witness overseas might be. 
20    For all the foregoing reasons I do not accept the submission that an 
  order may not go to a witness present in this jurisdiction who may be 
  described as a “party” to the Texas proceedings. 
    3. Does the request comply with the standard of particularity contained 
25  in s.2(4)(a) and (b) of the Schedule to the Order? 
    This aspect of the objection is not without merit and, indeed, Mr. Quin 
  recognized this in conceding that a number of items in the schedule to the 
  letters rogatory, which lists the documents to be produced, may not meet 
  the standard. In particular, it is now conceded that in those instances there 
30  is insufficient proof that the listed documents are in existence and likely to 
  be “in the possession, custody or power” of the witness, Mr. Law. 
  Otherwise, Mr. Quin submits that the documents are identified with 
  adequate particularity, given the circumstances of the case; that by 
  inference it must be taken that they exist, given the nature of the 
35  defendant’s business, and that they must be in the possession, custody or 
  power of Mr. Law, as he is the only resident officer of the defendant, 
  which has its physical headquarters in the Cayman Islands. 
    In order to preclude “fishing expeditions,” the words “particular 
  documents specified in the order” as they appear in s.2(4)(b) of the 
40  Schedule to the Order are to be strictly construed. The test to be applied in 
  relation to the production of documents is whether “particular documents” 
  were specified, that is, individual documents separately described, 
  although it is permissible to have a compendious description of several 
  documents, provided that evidence of the actual documents is produced to 
45  satisfy me that they do exist or at least have existed (see Re Asbestos Ins. 
1994–95 CILR 98

         Coverage Cases (1)). Whether those general standards may be satisfied in 
  the context of any particular case will necessarily depend on the 
  circumstances (U.S. v. Carver (8)). 
    In this case I am urged to consider the nature of the documents being 
5  sought on the basis that they are likely to exist as records of the business 
  and as records of the type of property which it is reasonable to expect the 
  defendant company would have acquired in the conduct of its business. I 
  am satisfied that reasonable inferences must be drawn in that regard in the 
  absence of direct evidence of the existence of such documents—direct 
10  evidence which, in all the circumstances, it would be unrealistic to require 
  the applicant to produce. I am also satisfied that the proper person to 
  whom the order is to be directed is the witness, Mr. Law, the amenable 
  officer of the corporate defendant company (see Penn-Texas Corp. v. 
  Murat Anstalt (5)). 
15    In keeping with the general principles earlier outlined, I adopt the 
  approach that as a matter of comity I should assist the foreign court to the 
  extent that it is permissible to do so under Cayman law and for those 
  purposes salvage what I can of the request, provided that in so doing I do 
  not rework the foreign request into something else altogether. 
20    I also take the view that, to the extent it is practicable to do so, the order 
  of this court should require the witness to give such oral testimony as 
  might be relevant to the delimited categories of documentation which the 
  order will require him to produce, and other such oral testimony pursuant 
  to the letters rogatory as he may give, and which may be relevant to the 
25  proceedings still pending in Texas. 
    It would be quite inappropriate for this court to try to determine in 
  advance the matters relevant to the issues before the Texas court with a 
  view more closely to defining the issues on which the witness may give 
  testimony (Re Asbestos Ins. Coverage Cases (1) ([1985] 1 All E.R. at 
30  722)). 
    I should also note in relation to the documents to be produced that in the 
  particular circumstances of this case, where the request is in furtherance of 
  post-judgment discovery for the purposes of tracing assets where it is 
  reasonable to believe that assets do exist, a certain latitude in the 
35  description of the documentation to be produced is not only desirable but 
  unavoidable. This, within the balance of probabilities that the documents 
  do exist and are within the ability of the person subpoenaed to produce. 
    [The court therefore confirmed the ex parte order of October 1st, 1993 
  with specified amendments.] 
Order accordingly.
Attorneys: Paget-Brown, Quin & Hampson for the plaintiff; C.S. Gill &
Co. for the defendant.