[2000 CILR 57]
GRAND COURT (Smellie, J.): May 21st, 1998
Evidence—assistance to foreign court—examination of documents and witnesses—court may not modify oppressively broad request for oral evidence if changes nature of request—renewed request containing specific list of questions for proposed witness may be presented
Evidence—assistance to foreign court—examination of documents and witnesses—request for oral evidence refused if so broad as to be oppressive or unnecessarily seeks to impeach witness—discretion in requesting court under Hague Convention, art. 3(f) to adopt “subject-matter” format is subject to requirement of fairness to witness
Evidence—assistance to foreign court—examination of documents and witnesses—request for oral evidence refused if amounts to “fishing”—no pre-trial discovery by reference to documents needed to support evidence—under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.2(3) may not make order in aid of foreign proceedings unavailable in domestic action
    The applicant applied for an order for compliance with a letter of request from a court in the United States.
    The applicant was a bank holding company operating in the United States. The shares of its parent company were acquired by BCCI without the approval of the US Federal regulators, using nominee shareholders. The Cayman affiliated bank, ICIC (Overseas), provided some of the funds to the nominees for these purchases and held certain shares, through the nominees, for BCCI. The shares of another US bank, acquired by a similar scheme, were sold by a principal of BCCI to the applicant at an

2000 CILR 58
inflated price in order to defeat his creditors. As a result of such misuse of the applicant’s funds and the loss of public confidence following the revelation of BCCI’s involvement in its ownership, the applicant ultimately went into liquidation.
    The applicant commenced proceedings in the US District Court for the District of Columbia against all the individuals involved in the BCCI share acquisition schemes, to recover damages for the losses it had suffered. The court issued a letter of request seeking evidence from two witnesses for use in the trial. The intended witnesses were partners in the Cayman branch of an international accountancy firm, and had been responsible for the BCCI (Overseas) and ICIC (Overseas) audit engage­ments at the relevant times.
    Some years after their involvement, the true extent of the fraud perpetrated and the falsification of financial statements and accounts by BCCI had come to the attention of the auditors. The applicant had commenced proceedings in New York seeking the discovery of information by, inter alia, the Cayman firm, and alleging complicity in the illegal acquisition of its parent company by BCCI. An order had been made in respect of the New York and UK branches of the firm, but not the Cayman branch.
    The allegation of complicity did not feature in the proceedings in the District of Columbia, but the applicant refused to undertake not to use evidence given by the two witnesses under the letter of request in proceedings against them. In response to the witnesses’ concerns as to the scope of the enquiry entailed in the letter of request, the applicant submitted an amended schedule of testimony sought. The witnesses were willing to give evidence of a more limited nature.
    The applicant submitted that (a) the court was best placed to approve amendments to the schedule of testimony in order to ensure compliance with the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters; (b) the topics of questioning in the schedule were intended not to impeach the witnesses but to reveal the scale of the losses sustained by BCCI and the fraudulent means by which it had sought to conceal them; (c) under art. 3(f) of the Convention the requesting court could make its request in the form of a statement of the subject-matter of the evidence sought, rather than the specific form required for requests for the production of documents; (d) the witnesses were not obliged to refer to documentary evidence to support their oral testimony, but examination on the contents could not offend against the legislation if that was a natural consequence of giving evidence effectively; and (e) since the evidence requested was relevant to the matters in issue in the proceedings, and the intention behind the request was not to elicit information beyond those issues, the request should not be refused as a case of “fishing.”

2000 CILR 59
    Held, dismissing the application:
    (1) The reductions and amendments to the schedule of testimony proposed by the applicant were so extensive that to implement them would be to change the nature of the request, which the court had no power to do. Furthermore, the assurances given and qualifications made to the court as to the scope of examination on the matters in the schedule would be of no effect before the examiner, as counsel for the applicant and the various defendants in the District Court action would be free to ask any question legitimately arising from the contents of the schedule. Accordingly, the court could not comply with the request in its amended form (page 67, lines 10–45).
    (2) In any event, even as amended, the request was oppressive in the breadth of the issues which it covered. A number of the topics contained in the schedule related to matters which could be (or in some cases had already been) proved by other means, and appeared to cast suspicion on the extent of the witnesses’ knowledge of BCCI affairs. Even though the requirement of specificity related to the production of documents only, and art. 3(f) of the Convention permitted a requesting court to adopt the “subject-matter” approach, this was subject to the requirement that the request must be enforceable without oppression or unfairness to the wit­nesses. The witnesses could not be compelled to testify unless the court was first satisfied that they had relevant evidence to give and understood what was required of them. Moreover, the witnesses would need to refer extensively, in their own time and at their own expense, to documents in order to prepare for giving evidence and to refresh their memories in court. This in itself would be oppressive to them (page 64, lines 29–44; page 68, line 32 – page 70, line 15; page 70, line 35 – page 71, line 11; page 73, line 41 – page 74, line 37; page 77, line 32 – page 78, line 9).
    (3) Quite apart from the issue of oppression, the request could not be complied with since it constituted “fishing” and was open to abuse. The court had to determine objectively whether the evidence sought was for direct and immediate use in the proceedings or whether it would simply result in new lines of inquiry leading to such evidence. In this case, whatever the intentions behind the request, and notwithstanding that the witnesses could give evidence relevant to the issues before the District Court, it clearly went beyond the scope of the specific allegations pleaded. Furthermore, the presentation of documentary evidence in support of the witnesses’ oral evidence would effectively give pre-trial discovery in favour of the applicant in the District Court, which was not available under Cayman law. The court was prohibited by s.2(3) of the Schedule from making an order in aid of foreign proceedings which it could not make in a domestic context. Clearly, this had not been explained to the District Court when the request was drafted (page 66, lines 20–38; page 70, lines 18–34; page 72, line 28 – page 73, line 12; page 76, line 28 – page 77, line 17; page 79, line 3 – page 80, line 19).

2000 CILR 60
    (4) However, given the willingness of the witnesses to assist if provided with a schedule of testimony containing specific questions, the court would consider a renewed request in that form (page 80, lines 22–31).
Cases cited:
(1)      ­First American Corp. v. Zayed, Queen’s Bench Division, December 15th, 1997; on appeal, [1999] 1 W.L.R 1154; sub nom. First American Corp. v. Sheikh Zayed Al-Nahyan, [1998] 4 All E.R. 439, considered.
(2)      ­Minnesota (State of) v. Philip Morris Inc., [1998] I.L. Pr. 170, dicta of Lord Woolf, M.R. applied.
(3)      ­Norway’s (State of) Application (No. 1), In re, [1987] Q.B. 433; [1989] 1 All E.R. 661; on appeal, [1990] 1 A.C. 723; [1989] 1 All E.R. 745, dicta of Kerr, L.J. applied.
(4)      ­Norway’s (State of) Application (No. 2), In re, [1989] 1 All E.R. 701; [1988] FTLR 293; on appeal, [1990] 1 A.C. 723; [1989] 1 All E.R. 745, not followed.
(5)      ­Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434.
Legislation construed:
Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, s.2(3):
    “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 proceedings.”
s.2(4): “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 possession, custody or power; or
(b)    to produce any documents 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.”
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (The Hague, March 18th, 1970; UK Treaty Series 20, (1977), Cmnd. 6727), art. 1: The relevant terms of this article are set out at page 66, lines 26–28.
art. 3(f): The relevant terms of this paragraph are set out at page 73, lines 29–33.
A.J. Jones and N.R.F.C. Timms for Price Waterhouse Cayman and the witnesses;
S.C. Rubin and S.J. Barrie for First American Corp.

2000 CILR 61

              SMELLIE, J.: This application seeks orders granting and enforcing a  
      letter of request from the US District Court for the District of Columbia  
      (“the District Court”) for the testimony of Richard Harris and Richard  
      Fear (“the intended witnesses”). 
            The application is brought by First American Corp. and First American  
      Bank Shares Inc. (“First American”). The background is required to set  
      the context for the decision at which I have arrived not to grant the letter  
      of request as it is presently framed. 
10          Background 
              First American were bank holding companies organized under the laws  
      of Virginia in the United States but now in liquidation under the control  
      of a trustee appointed by the District Court. That appointment was made  
      when it was revealed that the ill-reputed, ill-fated Bank of Credit and  
15      Commerce Holdings S.A. and its affiliates (“BCCI”) had managed, in  
      breach of US law, to acquire First American by means of BCCI’s  
      acquisition of First American’s parent company, Credit and Commerce  
      American Holdings N.V. (“CCAH”). 
              First American has filed an action (“the Zayed action”) now pending  
20      before the District Court, seeking damages it claims to have suffered as  
      the result of the public loss of confidence following the publication of the  
      fact of BCCI’s involvement in its ownership and the consequential run of  
      its depositors on First American and severe diminution in value of its  
      shares. The testimony of the intended witnesses is sought in furtherance  
25      of that claim in the Zayed action. 
              A second and related action before the District Court (also intituled  
      herein) does not figure for present purposes. In it Clarke Clifford and  
      Robert Altman are plaintiffs seeking indemnification from First American  
      for the legal fees and costs incurred in their defence of Federal and State  
30      criminal and civil prosecutions in the United States relating to their  
      alleged involvement in the affairs of BCCI and First American. In the  
      Zayed action, First American’s claim is brought against Sheikh Zayed bin  
      Sultan Al-Nahyan, Clarke Clifford, Robert Altman and 26 others whose  
      names figure prominently in the list of dramatis personae of the BCCI  
35      debacle. 
              In the Zayed action, the very large quantum of damages First American  
      seeks against them is said to arise from the defendants’ role in assisting in  
      BCCI’s illegal acquisition of First American through the clandestine  
      acquisition of the shares in CCAH. BCCI itself has been the subject of  
40      criminal proceedings in the United States. In those proceedings it has  
      made admissions, and has been convicted pursuant to a plea agreement,  
      in respect of its illegal acquisition of CCAH and First American. The  
      particular modus operandi alleged in the Zayed action is similar. It  
      involves the acquisition of control of CCAH by the use of various  
45      individual defendants as nominees for the purchase of the shares in 

2000 CILR 62

      CCAH which were publicly traded, those nominees agreeing not to  
      disclose BCCI’s true ownership of the shares. 
              This is a process that is alleged to have begun in 1982 and to have  
      continued through to 1986. It is averred in the Zayed action that the  
    scheme was necessary and was hatched because, in its quest to expand its  
      empire, BCCI had already made attempts to acquire a controlling interest  
      in another US bank, but was rejected as unsuitable by the Federal  
      regulators. The regulators’ approval of the acquisition of shares in CCAH  
      was also required and was therefore anticipated as unlikely to be given. It  
10      is also averred that BCCI provided the funds for the purchases of the  
      shares and booked those funds as loans to the nominees in its accounts. 
              A further twist in the scheme alleged is that funds were also provided  
      by International Credit and Investment Company (“ICIC”)—the BCCI  
      affiliate investment bank established in the Cayman Islands—which sent  
15      deposits to BCCI to be used to fund the acquisition of shares in the names  
      of the nominees. To the extent that ICIC sometimes sent money direct to  
      the nominees, it is averred that ICIC held the shares so acquired in CCAH  
      through the nominees, for BCCI. 
              With the illegal acquisition of the shares in yet another US bank—the  
20      National Bank of Georgia (“NBG”)—the plot thickened. For this a  
      similar nominee scheme is alleged to have been hatched, involving  
      another of the oft-recurring names of the BCCI saga—Ghaith Pharaon. It  
      is claimed that Pharaon acquired sufficient funds to purchase all the  
      shares in NBG in 1978 and although it is not yet clear just what portion  
25      he held as nominee for BCCI, First American intend to show that a  
      substantial number were so held. Pharaon remains a fugitive subject of  
      criminal proceedings filed in the United States since 1992. 
              First American’s claim for damages against Pharaon in respect of his  
      acquisition of NBG is said to have arisen in the following manner. NBG  
30      was a successful bank until 1985, when it became plain that Pharaon was  
      being pressured by his various creditors in respect of very large indebt 
      edness. It is said that BCCI became aware of this and was concerned that  
      the shares in NBG which Pharaon held on its behalf would be vulnerable to  
      action by Pharaon’s creditors, as the shares were ostensibly his, being  
35      registered in his name. 
              It is alleged that the defendants Clifford and Altman—already among  
      those listed as shareholders of record of CCAH as cyphers for BCCI— 
      and who were also at once officers of First American and its  
      attorneys—became further involved in the conspiracy by arranging for  
40      First American to acquire Pharaon’s registered shares in NBG for $220m.  
      This was some $60m. more than they were then worth. With the  
      proceeds, it is alleged that Pharaon arranged to pay off loans in his name  
      on the books of BCCI and ICIC. Thus, the solvency of First American  
      was sacrificed in the scheme to keep BCCI afloat and the inevitable  
45      disclosure of the massive frauds perpetrated within BCCI postponed. As 

2000 CILR 63

      First American was secretly owned by BCCI, it was in that manner also  
      placed in breach of US law by the failure to disclose to the authorities that  
      BCCI had acquired the shares in NBG. 
              It is said that as this conspiracy was unveiled in its fullness, First  
    American, a hitherto profitable and well-established bank, was driven  
      inexorably to its ruin. And so the Zayed action—though brought in the  
      name of the trustee of First American—is, for the foregoing reasons,  
      brought for the benefit of the many creditors and depositors of First  
      American and of BCCI who were the ultimate victims. The latter stand to  
10      benefit also from any recoveries pursuant to the plea agreement entered  
      into with the US authorities. 
              From these essentials of the claim in the Zayed action, it is plain that  
      the action is complex and its outcome very significant to very many  
      people. The case is one which will undoubtedly require the continued  
15      close management of the District Court, which has made orders requiring  
      the parties to co-operate in defining and honing the issues to be tried. 
              Many defendants have settled with First American and others will have  
      judgment entered against them in default. In fact, it is expected that the  
      matter will eventually go to trial only against the remaining four active  
20      defendants—being Clifford, Altman, A.R. Khalil and Ali Mohammad  
      Shorafa. So, notwithstanding its scope and the complexities of the massive  
      international fraud which was perpetrated, there is some indication that  
      before the time of the trial, the pleaded issues may be significantly narrowed  
      from the existing pleadings of some 300 pages and 700 paragraphs. This  
25      may also result in the evidence—relevant and necessary to prove the  
      issues—being better defined and more amenable to particularization. 
              As a premise from which to proceed to consider this request for  
      evidence from the intended witnesses, the narrowing of issues also points  
      to the likelihood that the evidence required of them can become more  
30      precisely identified. 
          The intended witnesses 
              The intended witnesses, Harris and Fear, were respectively the audit  
      partner of Price Waterhouse for the audit of BCCI (Overseas) (on which  
35      more below) and a senior Price Waterhouse audit manager during the  
      years leading up to the world-wide closure of BCCI in 1991. More specif 
      ically, Harris was the Price Waterhouse Cayman (“PW Cayman”) partner  
      responsible for the BCCI (Overseas) and ICIC (Overseas) audit  
      engagements from 1978 to 1986, when the scope of his responsibilities  
40      was significantly reduced. Fear was employed by PW Cayman from 1982  
      until 1985 and was from June 1985 to August 1986 principal audit  
      manager for BCCI (Overseas)’s financial statements. 
              As will be seen when we come to examine the scope of the requested  
      testimony, the range of issues proposed would cover the entire audit  
45      period of Harris and Fear’s involvement, i.e. 1978 to 1986. 

2000 CILR 64

              Questions would also go to the state of their knowledge in the light of  
      information which came to Price Waterhouse’s attention in November  
      1990 from what are referred to as the “secret Naqvi files”—some 6,000  
      files compiled by that former high-ranking employee of BCCI, the  
    contents of which were kept undisclosed to Price Waterhouse until that  
      time. These files related to the BCCI Treasury and showed the real scope  
      of the fraud and of the falsification of the BCCI financial statements  
      which had been perpetrated and upon which past audits had been based  
      and certificates issued. In sum, they revealed the real extent of the BCCI  
10      Treasury fraud and losses. 
              The significance of the Naqvi files was brought home by the statutory  
      report which Price Waterhouse UK (“PW UK”) was required to file with  
      the Bank of England in 1991 (“the section 41 report”). Notwithstanding  
      that that report showed that PW was itself misled in the preparation of the  
15      audits, in the present context the intended witnesses are concerned (as are  
      other PW personnel) that they could become the targets of claims by First  
      American. Their concerns are heightened by the fact that First American  
      has alleged the fraudulent complicity of Price Waterhouse in the illegal  
      acquisition by BCCI of the CCAH shares. These are allegations made  
20      within proceedings taken in New York with the objective of compelling  
      “the world-wide firm of Price Waterhouse,” including PW New York, PW  
      Cayman and PW UK, to divulge information in their custody, power or  
      control—thus expressed in the widest terms—which might assist First  
      American in the Zayed action. 
25              First American has obtained an order in that New York action against  
      PW New York and PW UK (on the basis that the latter has a business  
      presence in New York) which is on appeal. No order was, however,  
      obtained against PW Cayman. 
              Although these allegations made against Price Waterhouse in the New  
30      York action emerge nowhere in the very extensive pleadings in the  
      District Court—in which it is instead averred that Price Waterhouse, as  
      well as the US Federal authorities, was deceived by those responsible for  
      the fraud within BCCI—counsel for First American refused repeated  
      invitations from the other side in these proceedings to disavow any  
35      intention to sue upon such allegations. All that was offered in that regard  
      was the rather opaque assurance that in the course of examination no  
      question would be asked of the intended witnesses which would tend to  
      show that they or Price Waterhouse knew of, or were part of, the  
      fraudulent scheme to conceal BCCI’s beneficial ownership of CCAH or  
40      NBG. Thus, the intended witnesses would still be faced with the prospect  
      of being compelled to testify about matters in respect of which allegations  
      of fraud may yet be raised and pursued against them. 
              That, to my mind, was a very significant factor in the treatment of this  
      very widely framed letter of request. 
45              The issue of what the intended witnesses may or may not have known  

2000 CILR 65

      is indeed a live one before the District Court. There, Clifford and Altman,  
      in their defence, have asserted that they could not have known the true  
      nature of the CCAH shareholdings if, as they assert, Price Waterhouse, as  
      the auditors, did not know. 
            It is therefore a reasonable concern of the intended witnesses that—as  
      a matter of inference—what First American will seek to achieve upon  
      their examination is their impeachment by the impermissible expedient  
      (as they would be First American’s own witnesses) of putting to them that  
      they had knowledge of the deception. 
10              Against all that background, I think the intended witnesses must be  
      forgiven their concerns that unless restricted, the range of questioning  
      could be so wide as to accommodate that objective of impeaching them  
      by seeking to show, contrary to their audit reports, that they must have  
      been negligent or, worse, aware of the scheme and—more specifically in  
15      this context—of the impropriety of the “loans” to the Zayed defendants  
      and the fictitious nature of the interest charges which were allowed to  
      accrue upon those loans. 
              That was certainly the line of questioning sought to be pursued in a  
      similar letter of request from the District Court to the English High Court  
20      for testimony from PW UK and its personnel. That request failed for  
      reasons similar to those raised by the intended witnesses here: see the  
      judgment of Popplewell, J. in First American Corp. v. Zayed (1). That  
      decision—to the extent that it found the letter of request to be  
      oppressive—has been upheld on appeal to the English Court of Appeal. I  
25      will consider this judgment further below. I conclude in this matter that  
      similar factors, particularly those which I find also in this case tend to  
      point to oppression, should determine the exercise of the discretion which  
      I undoubtedly have. 
              These are issues to be more closely considered when I come to look at  
30      the law on the subject. 
              It must be recognized here, however, that the intended witnesses are,  
      indeed, likely to be able—after a suitable opportunity to prepare—to give  
      evidence of matters which will be relevant to the trial in the Zayed action.  
      In fact, the intended witnesses do not dispute this, and Mr. Jones has laid  
35      considerable emphasis on his clients’ willingness to testify once the  
      issues are sufficiently specified so as to allow them sensibly and  
      practicably to prepare to do so. 
          BCCI (Overseas) and the Central Treasury 
40              First American’s proposition—that the intended witnesses have  
      relevant evidence to give—derives in general terms from the known  
      connection between BCCI (Overseas), ICIC (Overseas) and  
      First American. 
              BCCI (Overseas) and BCCI S.A. (the Luxembourg holding company)  
45      were the BCCI group’s principal operating companies and had  

2000 CILR 66

      subsidiaries, branches and representative offices in many countries  
      around the world. Of significance to the present matter was the creation  
      and operation—already mentioned—of the BCCI Central Treasury within  
      BCCI (Overseas) in March 1982. Central Treasury was, however, at all  
    material times managed from London and later moved to Abu Dhabi to  
      avoid scrutiny in England. 
              The scale of the Central Treasury operations is described in First  
      American’s pleadings as “enormous, involving management of BCCI  
      group and other funds of approximately $5 billion, generated almost  
10      entirely from local depositors’ dollar-denominated funds.” The pivotal  
      averment in respect of BCCI Central Treasury for present purposes is at  
      para. 331 of the pleadings where it is stated: “Money used to fund share  
      purchases of CCAH by fraudulent shareholders was repeatedly taken  
      from BCCI Central Treasury funds.” 
          The letter of request 
              Against all that factual background, the terms and scope of the letter of  
      request reveal the magnitude of the enquiry and of the task in preparation  
      to be undertaken by the intended witnesses. 
20              Much emphasis was laid by Mr. Rubin on the fact that the letter of  
      request does recite the obligatory statement that the evidence sought is  
      intended “to be used at the trial of this action.” This statement is, of  
      course, one which must be taken by this court as intended in good faith by  
      the foreign court to meet the requirements of art. 1 of the Hague  
25      Convention on the Taking of Evidence Abroad in Civil or Commercial  
      Matters (“the Convention”) which states that: “A Letter shall not be used  
      to obtain evidence which is not intended for use in judicial proceedings,  
      commenced or contemplated.” 
              What is none the less to be noted here is that although full faith and  
30      credit is to be afforded the request of a foreign court, the objective  
      determination of whether a request satisfies the legal requirements of the  
      Convention and of domestic law are for the requested court to resolve by  
      reference to all the relevant circumstances. As a matter of domestic law,  
      effect will not be given to a letter of request whose function is shown,  
35      after objective assessment by the requested court, to be merely  
      exploratory or investigatory, rather than intended to seek evidence for use  
      at the trial in the foreign court. This is the oft-cited prohibition against  
              In Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp. (5) Lord  
40      Wilberforce recognized this principle in the following terms ([1978] A.C.  
      at 610): 
                  “. . . [T]he distinction [is] drawn … between ‘a process by way of  
          discovery and testimony for that purpose’ and ‘testimony for the  
          trial itself.’ But which it is in fact is not to be determined by the  
45          drafting of … lawyers [of the requesting party] but objectively by  

2000 CILR 67

          the nature of testimony sought. The fact that any evidence obtained  
          is intended to be put in at the trial, is quite consistent with the  
          inquiry extending (impermissibly) to trains of inquiry which might  
          produce such evidence.” 
      The schedule of testimony 
              There is a schedule to the request in which is described the testimony  
      sought from the intended witnesses, Harris and Fear. As originally  
10      presented, the schedule came as a part of the request from the District  
      Court. But it has been proposed by First American that the schedule be  
      reduced by this court to meet the concerns of the intended witnesses and  
      an amended schedule showing these proposed reductions was filed along  
      with the affidavit evidence in these proceedings. Further amendments and  
15      limitations were proposed on behalf of First American during the course  
      of the arguments. 
              The effect of all this would have been to shape the request into  
      something else altogether. That, I readily concluded, was an impermissible  
      manner of dealing with the request of a foreign court: see Voluntary  
20      Purchasing Group Inc. v. Insurco Intl. Ltd. (6) (1994–95 CILR at 98).  
      Notwithstanding the duty and wish of this court to assist the District Court  
      in its trial of this very complex and important case—and one which  
      involves international fraud on the most destructive scale—this court has  
      no power to rewrite the request. And even if it could properly so delimit  
25      the request, the remaining scope and breadth of the request, notwith 
      standing the proposed amended schedule of testimony, would be  
      impermissible. That can best be illustrated by the amended schedule itself. 
              Considerable efforts were made in the affidavits of Mr. Barrie and the  
      submissions of Mr. Rubin to explain, on behalf of First American, the  
30      true objective of the proposed amended schedule of testimony. This was  
      done in an effort to refute the complaints of the intended witnesses that the schedule is oppressively wide. It was also sought to demonstrate that  
      the evidence which they can give can readily be identified by reference to  
      the audit records which should be held by PW Cayman and are readily available for  
      the purposes of testimony. 
35              In the end I accepted Mr. Jones’s submission that that would be an  
      inappropriate manner of proceeding for the further reason that if the  
      request is to be executed, the schedule of testimony would be the only  
      available guide to the examiner who would be appointed by this court.  
      Counsel’s affidavits or the glosses or qualifications placed upon the  
40      request by counsel in their submissions could not guide the examiner, and  
      certainly could place no restraint upon counsel cross-examining on behalf  
      of the defendants in the Zayed action. The defendants have a right to be  
      represented and would be free to ask any question which objectively  
      arose from the matters covered by the schedule of testimony and without  
45      any regard to restraints agreed by First American’s counsel. 

2000 CILR 68

              Two questions of law 
              In the end the decision in this matter had to turn upon two main  
      questions of law. The first, reflecting the primary thrust of the objection,  
      was whether oppression could reasonably be an anticipated outcome of  
    allowing Harris and Fear to be examined on the basis of the schedule of  
      testimony. The second was whether the schedule of testimony (even as  
      amended) was so wide as to accommodate the potential for a roving  
      inquiry, not just for evidence for the specific purposes of the trial, but also  
      for information which may lead to the obtaining of such evidence, i.e. a  
10      “fishing expedition.” 
              These are questions to which I will turn below by reference to the law.  
      For now, I will examine some aspects of the schedule of testimony which,  
      to my mind—as a matter of the exercise of discretion—demonstrate the  
      impermissible breadth of the request and its potential abuse as a means of  
15      oppression. I need only examine a few aspects of those which would  
      remain notwithstanding the proposed amendments. 
          The scope of the request 
              Item 3: BCCI’s Central Treasury Division losses 
20              This makes reference to losses “incurred from the early 1980s through  
      1986” (the last year that Harris certified an audit) and goes on to refer to  
      “the circumstances surrounding the ‘subvention’ (of funds from ICIC  
      Staff Benefit Fund) used to cover certain of such losses in 1986.” 
              Mr. Barrie and Mr. Dugan (in their affidavits) and Mr. Rubin in  
25      submissions sought to explain that this range of testimony is necessary to  
      support the central hypothesis of First American’s case: that ICIC funded  
      BCCI’s acquisition of shares in First American through the alleged  
      nominee defendants. It is said that evidence of this relationship may also  
      be gleaned from the fact that ICIC misappropriated its Staff Benefit Fund  
30      to the order of some $150m. which it provided to BCCI as the aforemen 
      tioned “subvention.” 
              The point here, as Mr. Rubin said, is that First American seeks to prove  
      that ICIC and BCCI were in reality one organization, presumably to show  
      that shares bought with ICIC funds were held for BCCI. Even if so, one  
35      cannot overlook the fact that this particular item of the schedule is so  
      widely drawn that it would permit just about any question relating to  
      BCCI Central Treasury losses over the years mentioned. That risk would  
      arise even though First American’s stated objective in this regard might  
      well be achieved by a few carefully worded questions going to the  
40      witnesses’ ability to say whether ICIC provided the funds and  
      subventions in question. 
              There appears to be a further element of First American’s claim that  
      would require reference to BCCI Central Treasury losses. This is  
      identified at paras. 335–340 of the claim and involves the profits alleged  
45      to have been fictionally booked in BCCI’s accounts as being interest due  

2000 CILR 69

      or paid on the “loans” made to the nominee shareholders. As Treasury  
      losses increased, so the fictitious interest dues were increased in the books  
      to show greater income or receivables. This is also said to be a part of the  
      scheme to defraud the creditors of BCCI and to hide the true magnitude  
    of losses from the auditors. 
              From all this it will, I think, be readily apparent that unless the inquiry  
      is properly focused by questions designed to elicit evidence for the  
      specific purposes of the trial, the scope and range of questions about the  
      subject of Treasury losses alone could be uncontrollably broad and, as in  
10      the case of any other subject-matter, would require the intended witnesses  
      to undertake countless hours of preparation to be in a position  
      to respond to the range of possible questions. This would entail, I am told, reference  
      to hundreds of files just on the subject-matter of the Treasury losses. 
              By way of further illustration of the scope of that exercise, there is an  
15      issue whether the Treasury losses referred to are the losses as  
      misleadingly reported in the accounts—and hence certified by PW  
      Cayman—or the Treasury losses as they actually occurred. This is not  
      made clear in the schedule of testimony. If only the former, then it is not  
      disputed that the extent of the losses is a matter which can be readily  
20      given in evidence by expert witnesses in the District Court by reference to  
      the certified audits given by Price Waterhouse and which are already a  
      matter of record in the Zayed action. In this regard I feel compelled to  
      agree with Mr. Jones that it is unrealistic to expect that Harris and Fear  
      will now refute the findings already certified in their audits in respect of  
25      the magnitude of the Treasury losses for the years in question. 
              If the latter—and the inquiry seeks to show the true extent of Treasury  
      losses ultimately revealed by the Naqvi files—then the inquiry would  
      suggest an expectation of evidence from Harris and Fear about matters to  
      which they were not privy. It is not disputed that those files and the  
30      section 41 report compiled by reference to them were dealt with by PW  
      UK, not by Harris and Fear. For those reasons, the true extent of the  
      Treasury losses did not come to light until after November 1990, some  
      three years after Harris, and some five years after Fear, was last  
      responsible for the audits. 
35              Against that background, where no real probative value is apparent, it  
      is the reasonable concern of Harris and Fear—raised also in light of the  
      allegations of fraud in the New York action—that the real objective is  
      somehow to impeach them. Such an objective, or even the reasonable  
      apprehension of it, must, by any measure, be regarded as oppressive. It is  
40      also to be noted that the request does not differentiate in any way between  
      the role of Harris and the more limited role of Fear during the respective  
      periods, and the latter must be, for that reason, even more concerned  
      about the scope of the questions which could arise and how to prepare to  
      answer them. 
45              When faced with these realities, Mr. Rubin’s submission that the  

2000 CILR 70

      witnesses would be under no legal obligation to prepare themselves to  
      testify and so need not be concerned to refer to the vast number of records  
      rang emptily indeed. Their failure to do so would render the entire  
      exercise futile, as it is only reasonable to anticipate that they could recall  
    very little detail without so doing. 
              Whatever counsel’s views may be or concessions made, this court must  
      be astute to anticipate the likely impact of its orders. An order requiring  
      the intended witnesses to testify carries the expectation that they will take  
      all reasonable and necessary steps to ensure that they are able to do so,  
10      and in a responsible and helpful manner. The expectation therefore would  
      be that they would be obliged to review the very many files and to select  
      from them documents for purposes of reference when testifying. They  
      would have to do so at their own expense in terms of time and money,  
      clearly an oppressive prospect given the vastness of the records and the  
15      breadth and scope of the schedule of the testimony. 
          Documentary discovery 
              There is yet a further fundamental objection in principle to proceeding  
      in that way: It would inevitably lead to impermissible documentary  
20      discovery, as the witnesses in cross-examination—irrespective of any  
      disavowal of such intentions by Mr. Rubin—would be asked to produce  
      the documents on which they rely to refresh memory or in any other way  
      for giving testimony. 
              Mr. Rubin’s rejoinder (somewhat contradictory in light of his  
25      disavowal of any claim to documents) that such an outcome would be  
      unobjectionable if a natural consequence of the witnesses’ giving  
      evidence, I thought was yet another attempted denial of the Cayman  
      public policy contained in the local equivalent of the UK domestic law.  
      The result would be that First American would achieve the impermissible  
30      (and unrequested) result of pre-trial discovery of documents, by the  
      objectionable expedients of failing to identify the documents it seeks to  
      rely on when examining the intended witnesses and by failing to provide  
      them in advance with a suitably focused schedule of questions or  
      framework of issues. 
35              I have first singled out the Central Treasury losses because I consider  
      that to be the most egregious example of the impermissible breadth of the  
      topics in the schedule of testimony. The potential for abuse here is plainly  
      revealed when one also bears in mind that I was told more than once in  
      the arguments that what First American really seeks to prove in this  
40      request is simply the true size of the Treasury losses to support a further  
      hypothesis of its case, viz. that it became necessary for BCCI to reflect the  
      fictitious loans to defendants and interest as accumulating on them so as  
      to hide in its books the large Treasury losses under discussion. 
              Yet this is all secondary—as Mr. Rubin conceded—to the real thrust of  
45      First American’s claim, which is that the Zayed defendants held their  

2000 CILR 71

      shares for BCCI thus enabling its ownership of First American, and that  
      this ultimately caused its ruin. This concession of Mr. Rubin’s is partic 
      ularly startling when it is placed in full context—the true size of the  
      Treasury losses became a matter of record as long ago as June 1991, in  
    the section 41 report of PW UK to the Bank of England. This is a fact  
      pleaded by First American itself: see para. 540 of the claim in the Zayed  
      action. Viewed in that light, there appears to be no justification for that  
      aspect of the request which would involve the intended witnesses in the  
      massive preparatory work and expose them to such wide-ranging  
10      exploratory examination and cross-examination to prove an issue readily  
      provable by other available means. 
          Items 8, 9 and 6 of the schedule 
              Equally forceful objections apply to all the other topics of the amended  
15      schedule when viewed in the context of the known circumstances of this  
      case. Considering the real thrust of First American’s case, I think I need  
      examine only some other topics to further illustrate the vagueness and  
      scope of the schedule. One such topic is covered in items 8 and 9. It  
      relates to the nature of the relationship between BCCI and the defendants  
20      who are alleged to have been its nominee shareholders in CCAH. Clearly,  
      if there is evidence to be given by the intended witnesses which can shed  
      light on this relationship—in particular to reveal that the defendants were  
      knowingly “fronting” for BCCI—First American’s case would be greatly  
      helped. Evidence such as, for example, that the “loans” to those  
25      defendants were never repaid or no attempts made to recover them, would  
      be highly probative. 
              However, instead of presenting questions focused on those issues, and  
      which would enable the intended witnesses, in turn, to focus their own  
      review and preparations, we see in items 8 and 9 issues which could  
30      hardly be less focused. Item 8 reads: “The adequacy of documentation  
      covering the loans made by BCCI to record shareholders of CCAH.”  
      Framed in that way, this is a subject which is not confined even to the  
      “loans” made to those persons for the purposes of acquiring shares in  
      CCAH, but could relate to any loan to any such person—of which I am  
35      informed there were many. Examples cited by Mr. Jones were loans  
      apparently made to or guaranteed by the defendants Altman and Pharaon  
      in respect of what has been referred to as the “Jeddah Hotel Project.” Item  
      9 seeks to explore “the relationship between BCCI and the record  
      shareholders of CCAH” in the widest terms and condescends to  
40      particulars by reference only to sub-items (a) to (f) which in themselves  
      are very widely cast. 
              The key issue which First American needs to prove in this context—as  
      indeed in respect of item 6—is whether Clifford or Altman disclosed to  
      PW Cayman that their loans were subject to the purported form of “hold  
45      harmless” or non-recourse agreements which they allege. They say that  

2000 CILR 72

      the only security or recourse given to BCCI for the loans was the shares  
      themselves. Yet the only aspect of item 9 which directly addresses that  
      issue is sub-item (d). In the rest of item 9 and item 6 lies the potential for  
      a roving inquiry of the widest kind. 
            In this context, it is also to be borne in mind that First American has  
      obtained the issue of a further letter of request from the District Court to  
      this court. By that request (which has, since the arguments in this matter,  
      been granted by this court) the custodian of records of PW Cayman is  
      required to provide any available documentary evidence about the audit  
10      confirmation process in respect of the loans and to testify about the  
      provenance of such documents where they exist, and where they do not,  
      in confirmation of the fact that they do not exist. 
              When it is borne in mind that a pivotal issue in the trial will be whether  
      Clifford and Altman qualified audit confirmations in respect of their  
15      “loans” by reference to the alleged non-recourse agreements or by  
      reference to the alleged agreed interest rates, the evidence to be produced  
      pursuant to this second letter of request will, in large part, address that  
      issue. Viewed in that light, the very wide terms of items 6 and 9 become  
      even more troubling. I think they fairly attract the criticism of Mr. Jones  
20      that they would facilitate—even if not so designed or intended—a general  
      “trawl through” the voluminous records in the nature of a fishing  
              With those illustrations and the many others showing the potential in  
      the schedule for its oppressive and wide use, I can now turn to the  
25      applicable legal principles. 
          General principles 
              The power to order the taking of evidence pursuant to a letter of  
      request is statutory. In the Cayman Islands it is contained within the  
30      Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order  
      1978 (“the Evidence Order”). 
              The Evidence Order adopts with modifications the UK legislation  
      which gives effect to the Convention. The Convention was acceded to by  
      the United Kingdom and Colonies (including the Cayman Islands) with  
35      certain reservations which reflect, among other things, settled common  
      law principles. These principles require that requests in aid  
      of the process of pre-trial discovery (very familiar to the US courts) may not be  
              The Cayman public policy against granting such foreign requests is  
40      embodied in s.2(3) of the Schedule to the Evidence Order. That provision  
      precludes the courts from making an order in aid of foreign proceedings  
      which it could not make in aid of its own proceedings. The policy is also  
      reflected in the further limitations imposed by s.2(4) of the Schedule  
      which stipulate the need for specificity in requests for documentary  
45      evidence. These general principles and limitations are already recognized  

2000 CILR 73

      within the local case law: see Voluntary Purchasing Group Inc. v. Insurco  
      Intl. Ltd. (6) (1994–95 CILR at 88–90). As our enabling legislation is  
      based on the English Evidence Act of 1975, these provisions are in  
      common with those applied in England and Wales: see Rio Tinto Zinc  
    Corp. v. Westinghouse Elec. Corp. (5). 
              The moot point of principle which arises here is whether this  
      prohibition against pre-trial discovery or “fishing” is applicable to  
      requests for evidence by way of the oral examination of witnesses. As  
      “fishing” is not a term of art, I here describe it, adopting the description  
10      most often cited in the cases; the seeking of evidence not itself for direct  
      and immediate use at a trial, but instead in the hope that it might lead to a  
      line of enquiry which might lead to such evidence. 
              To the extent that, as I have found, the present request for oral  
      testimony lends itself potentially to such a fishing exercise, the Evidence  
15      Order would preclude it and the request could not be allowed on jurisdic 
      tional grounds. This view of the law follows one line of authority. As will  
      be seen, other pronouncements in the cases are to the contrary. Before  
      looking at the case law, it should be recognized that there are general  
      practical consequences of importance involved in the first, or restrictive,  
20      construction of the Evidence Order—a request for oral evidence would  
      need to specify with some degree of particularity the very questions to be  
      asked before it would be free of the vice of potential abuse. And so the  
      “subject-matter approach” or format of the sort adopted in the schedule to  
      the present request would not ordinarily do. 
25              This is a consequence which Mr. Rubin said would derogate from the  
      right of a requesting court to elect between that format and the format of  
      the listing of specific questions. It is a right of election which the  
      Convention itself in art. 3(f) recognizes in these terms: 
                      “A Letter of Request shall specify— 
30                      . . .  
                          (f)    the questions to be put to the persons to be examined or a  
              statement of the subject-matter about which they are to be  
              examined …” [Emphasis supplied.] 
          I was invited by Mr. Rubin to treat this right of election in art. 3(f) as  
35      reflecting the difference of procedure employed as between civil law and  
      common law countries. In the former, a list of questions is required as it is  
      the judge, and not counsel for the parties, who examines witnesses,  
      whereas in the latter the converse applies, and there the requested court  
      usually therefore only needs the subject-matter format to guide its  
40      conduct of the inquiry. 
              As a purely practical matter, I have no difficulty in accepting that even  
      if the right to elect were to be deemed unaffected by domestic public  
      policy and law, the right of election must none the less be subject to the  
      reasonable expectation that the format elected by the requesting court will  
45      be one which would not result in unfairness to the witnesses who will be  

2000 CILR 74

      required to respond. What that means, in practical terms, is that the  
      greater the complexity and breadth of the subject-matter, the greater will  
      be the need to enable witnesses to identify the specific issues to which  
      they must respond and to prepare themselves for so doing. 
            In the end, Mr. Rubin acknowledged that this general standard of  
      fairness was left intact notwithstanding the right of the requesting court to  
      elect between the subject-matter and listing formats. The several  
      concessions made during the arguments—culminating in that to “provide  
      a full list of questions without admitting that the civil mode applies”— 
10      were therefore, to my mind, implicit admissions that the standard of  
      fairness mentioned above would be violated by the excessive breadth of  
      the request in this case. Whatever the provenance of art. 3(f) of the  
      Convention, I am satisfied that the format elected by the requesting court  
      must reasonably ensure that its request can sensibly be enforced and  
15      without oppression or unfairness to the witnesses who must respond. 
              This leads me naturally to the wider consideration of the issue of  
      oppression, with which the issue of fairness is inextricably linked. In this  
20      case, for reasons appearing from the factual context described above,  
      oppression is a discrete objection from that of “fishing.” It arises in this  
      case by reference to the sheer magnitude and expense of the task to which  
      the intended witnesses would be subjected by way of preparing to give  
      their testimony in response to the request as framed. 
25              It also arises by reference to the allegations in the New York  
      proceedings of Price Waterhouse’s knowing complicity in the fraudulent  
      scheme involving the use of the nominee shareholders. These are  
      allegations which First American refused to disavow throughout these  
      proceedings before me and in spite of being invited so to do. Price  
30      Waterhouse staunchly denies these allegations and First American gives  
      no undertaking that it will not yet seek to sue Price Waterhouse in respect  
      of them either in the existing Zayed action or otherwise. 
              Allegations of complicity in fraud can only properly be made upon  
      substantial grounds, otherwise the allegations would be reckless and  
35      abusive. To require the intended witnesses to submit to a roving inquiry  
      upon the very issues surrounding those allegations with the threat of suit  
      hanging over them would, by any measure, be unfair and oppressive. 
              On this very same issue, the English Court of Appeal has taken the  
      same view in upholding Popplewell, J.’s decision to refuse the request to  
40      the English courts (1). There, Scott, V.-C. said ([1998] 4 All E.R. at  
                  “It is, it seems to me, inherently oppressive to hold over the head of  
          two witnesses serious allegations of complicity in fraud and the real  
          possibility of being joined as defendants in a civil action based on  
45          that alleged complicity, while at the same time requesting an  

2000 CILR 75

          opportunity for a wide examination of the two witnesses on the very  
          topics that would be relevant in an action against them.” 
          Oppression as a specific ground for refusal has been recognized before in  
      the cases. In addressing the general rule of fairness and the duty of the  
    requested court to maintain the balance between assisting the foreign  
      court and preventing abuse of intended witnesses, Lord Woolf, M.R. in  
      State of Minnesota v. Philip Morris Inc. (2) said this ([1998] I.L. Pr. at  
                  “. . . [B]ecause of the need to hold the balance between the  
10          requesting court and the witnesses who are to be examined, if the  
          request is given effect, the court will not allow uncertain, vague or  
          other objectionable requests to be implemented. A witness is  
          entitled to know within reasonable limits the matters about which he  
          or she is to be examined. Although there is the possibility, to which I  
15          have already referred, of matters coming back to the court for  
          further rulings, in general the court has to take into account that once  
          it makes an order it ceases to have control of the examination.” 
          And (ibid., at 183, per Peter Gibson, L.J): 
                      “Comity dictates that effect should be given to a Letter of  
20          Request if that is possible. But the English court’s natural inclination  
          to give effect to the request must be tempered both by the  
          requirements of the Act, which limit the jurisdiction of the English  
          court to applications for an order for evidence (i.e. factual material  
          required to prove or disprove allegations at trial), and by the proper  
25          concern of the English court that those within its jurisdiction who  
          are called upon to give evidence will be fairly dealt with in the  
          evidence-gathering process, which the court may allow to be  
          conducted here for the purposes of the foreign proceedings.” 
          For the reasons already demonstrated, these are observations which I  
30      think are a fortiori applicable in this case and I conclude that it would be  
      oppressive to allow the request as presently framed. 
              That being my decision, I need not proceed to a determination of the  
35      other primary legal issue, viz. whether a request for oral evidence can be  
      refused on the basis that it constitutes a fishing expedition. None the less,  
      as the issue is one of general importance over which considerable time  
      and effort was taken, it is right that I should at least offer my views. 
              Until the Court of Appeal decision in England upon the appeal involving  
40      First American’s request to that court, I was inclined to accept Mr. Jones’s  
      submissions that the answer has already been reached in England in  
      decided cases in a manner suitably to be adopted in similar circumstances  
      in the Cayman Islands. In In re State of Norway’s Application (No. 1) (3)  
      Kerr, L.J. said this, addressing the impermissible potential for fishing as he  
45      saw it in Norway’s request for evidence ([1987] Q.B. at 482): 

2000 CILR 76

          “In the present context fishing may occur in two ways. First, the  
          ‘evidence’ may be sought for a preliminary purpose, such as the  
          process of pre-trial discovery in the United States. The fact that this  
          is clearly impermissible for the purposes of the [English] Act of  
        1975 is established in the Westinghouse case … and was equally so  
          held by this court in relation to the Foreign Tribunals Evidence Act  
          1856 in Radio Corporation of America v. Rauland Corporation …  
          This is irrelevant in the present context, since the ‘evidence’ is  
          required for the trial itself. But fishing is in my view also relevant in  
10          another sense in the present context, as McNeil J. rightly indicated.  
          It is perhaps best described as a roving inquiry, by means of the  
          examination and cross-examination of witnesses, which is not  
          designed to establish by means of their evidence allegations of fact  
          which have been raised bona fide with adequate particulars, but to  
15          obtain information which may lead to obtaining evidence in general  
          support of a party’s case. 
                      In the Radio Corporation case … the court was concerned with  
          the word ‘testimony’ in the Act of 1856 whose equivalent is now  
          ‘evidence’ in the Act of 1975. In a passage from the leading  
20          judgment given by Devlin J., which is quoted by Lord Fraser of  
          Tullybelton in the Westinghouse case … he said … : 
                          ‘Testimony if it can be called “testimony,” which consists of  
              mere answers to questions … designed to lead to a train of  
              inquiry, is not permissible.’” 
25          As will be seen, the dictum of Scott, V.-C. in the appeal upon First  
      American’s request in England (1) now squarely refutes these passages  
      and leaves to be finally decided by the House of Lords the issue at hand. 
              If one were to apply the earlier pronouncements of Kerr, L.J. in the  
      context of the present case, they would clearly advise against approving  
30      the present request as based upon the wide subject-matter in the schedule,  
      as that would admit of “a very wide roving inquiry by means of the  
      examination and cross-examination” of the intended witnesses. And  
      would by the same measure go far beyond that which may be strictly  
      described as designed to elicit evidence for the proof of particular  
35      allegations of fact in the trial of the Zayed action. 
              Moreover, whether or not that is the intended effect of the letter of  
      request would seem to be irrelevant. This is because, if Kerr, L.J. is  
      correct, no jurisdiction is vested in the court by the Evidence Order to  
      allow a request which could or would likely be abused in that manner.  
40      The test is not whether a fishing expedition is intended, it is whether one  
      would be allowed or whether the request is so designed that it would be  
              And I should make it plain that I make no finding that it is the objective  
      or intent of this request to enable fishing. On the contrary, comity dictates  
45      that I accept that, as the request states on its face, it seeks “evidence for  

2000 CILR 77

      use at the trial.” I am, however, obliged to observe that the differences  
      between the American and Cayman systems as to what may be permissible  
      by way of pre-trial discovery for such purposes are not always readily  
      apparent and, in response to a question posed in these proceedings, I was  
    informed that no effort had been made to explain to the District Court the  
      narrower premises upon which assistance is afforded by our courts. The  
      District Court would therefore not have addressed the need to frame the  
      schedule of requested testimony in such manner as to reflect the fact that  
      this court does not allow pre-trial discovery. 
10              That such issues of the conflict of laws should be considered in the  
      interest of comity by a requesting court, to ensure that the ambit of its  
      request can be accepted and acted upon, I do not think involves any  
      infringement of the principles of the Convention. The need so to do  
      clearly arises and more so in a case of this complexity and size. It is also  
15      significant that the necessary advice on these issues was available to the  
      District Court in the form of the large international law firm representing  
      First American on whose behalf the request is made. 
              It is also to my mind in this context not without significance that the  
      earlier request—in very similar terms to the English High Court (which  
20      exercises the identical powers in these matters)—had been refused before  
      this request was argued before this court, and for very similar reasons. 
              Considerable debate occurred about what persuasive value should be  
      given in this jurisdiction to the statements of Kerr, L.J. quoted above from  
      the case of In re State of Norway’s Application (No. 1) (3). Mr. Rubin  
25      submitted that even if they do comprise the ratio decidendi of that case  
      they should not be adopted here. This he submitted for the practical  
      reason, in particular—and earlier touched upon—that nothing in the  
      Convention excludes or precludes a procedure by which a witness could  
      be examined or cross-examined upon matters which follow naturally on  
30      answers given and by which the witness may be required to disclose  
      documents relied upon (by way of preparation or refreshing memory or  
      otherwise) for the purpose of giving his testimony. If such an outcome  
      were to be described as “fishing” or as a “roving inquiry” for the purposes  
      of English law, it is none the less, he submitted, to be regarded as  
35      permitted by the Convention which, in art. 3, imposes conditions of  
      specificity only upon requests for documentary evidence. 
              These arguments, to my mind, overlook the concerns about general  
      unfairness and the practical obligations and powers of the court to prevent  
      it—matters already addressed. They also overlook the issues of  
40      oppression in the specific contexts which I have already addressed and  
      which must be considered, irrespective of the workings of the  
      Convention. Apart from all that, these particular arguments of Mr. Rubin  
      overlook, to my mind, the very reason for the reservations recorded by  
      the British Government upon accession to the Convention and expressed  
45      in the Evidence Order by way of the limitation of the court’s jurisdiction  

2000 CILR 78

      not to make orders which it could not make for the purposes of obtaining  
      evidence for domestic litigation, i.e. s.2(3) of the Schedule to the  
      Evidence Order. This is because in domestic litigation a witness is never  
      compelled until the court is satisfied that he has relevant evidence to give  
    and that he has or has been afforded an understanding of the testimony  
      required of him. 
              Exercises by which roving inquiries are allowed by way of pre-trial  
      discovery based upon broad subject-matters do not fit within those  
10              Mr. Rubin’s arguments, it must be acknowledged, have found some  
      robust support in the English Court of Appeal which has held that the  
      prohibition against “fishing” cannot apply to a request for viva voce  
      testimony which is otherwise permissible and in response to which the  
      witness has relevant testimony to give: see the recent pronouncements in  
15      the decision of the Court of Appeal in the First American case. 
              In giving the judgment of the court, the Vice-Chancellor disagreed  
      with the words of Kerr, L.J. in In re State of Norway’s Application (No. 1)  
      (3), which he described as obiter dictum (and overruling Popplewell, J. in  
      the court below to the extent that he had relied upon them). The Vice- 
20      Chancellor quoted and expressed his agreement in this regard instead  
      with pronouncements (also disagreeing with those of Kerr, L.J. in In re  
      State of Norway) made by Woolf, L.J. in In re State of Norway’s  
      Application (No. 2) (4) ([1990] 1 A.C. at 781–782) and continued ([1998]  
      4 All E.R. at 447): 
25                      “I am in respectful and complete agreement with the opinion  
          expressed by Woolf L.J. in the passage I have cited. If oral evidence  
          is being sought for the purpose of use at trial and if there is good  
          reason to believe that the intended witness has knowledge of matters  
          in issue at the trial so as to be likely to be able to give evidence  
30          relevant to those issues, I do not understand how an application to  
          have the intended witness orally examined can be described as  
          ‘fishing’. It cannot be necessary that it be known in advance what  
          answers to the questions the witness can give.” 
          However, later the Vice-Chancellor stated, somewhat in qualification, it  
35      seems to me, of his earlier pronouncement (ibid., at 449): 
                  “In relation to oral testimony I do not think an objection of ‘fishing’  
          has substance except in a case in which the conclusion can be  
          reached, whether from the terms of the request or from other  
          sources, that the intention underlying the request is not one of  
40          obtaining evidence for use at trial. The width of a request may  
          indicate the absence of that intention. But, equally, the width of a  
          request may be an inevitable consequence of the complexities of the  
          issues and of the witness’s involvement in them.” [Emphasis  
45          So here we see a variance of approach as between “relevance” being the  

2000 CILR 79

      determinative factor and one that invites an examination of the issue of  
      whether there exists some “intention” to use the request for fishing. 
              Difficulties with either approach immediately appear. If the witness’s  
      ability to give the relevant information sought is to be the determinative  
    factor then however exploratory the request in its terms, it ought never to  
      be disallowed on the ground of fishing unless there is that intention  
      shown. Yet that is the nature of the complaint of fishing in this case, as in  
      the English case—which the Court of Appeal refused but on the other  
      ground of oppression only. 
10              When viewed in that sense, no question of proportionality can arise as  
      a measure of whether or not the request is to be disallowed as being  
      substantially one which is exploratory in nature. 
              In this case that presents an obvious problem. Given the entire nature,  
      and particularly the breadth, of the schedule of requested testimony, it is  
15      hard to avoid the conclusion—especially when the request is viewed in  
      the context of the real issues which need to be proved through the  
      intended witnesses—that the request is one which is substantially  
      exploratory in nature. 
              And so, unable as I have been to find lack of relevance, the latest  
20      pronouncements of the Court of Appeal would, notwithstanding the  
      substantial exploratory nature, advise that I allow the request. Put in  
      rhetorical form the point is more forceful: If relevance is to be the  
      determinant factor, is the requested court obliged to overlook the obvious  
      exploratory nature? The other test postulated is “intention.” One is  
25      obliged, for the reasons I have already touched upon, to recognize and  
      heed the stated intention of the foreign court, i.e. in this case that the  
      evidence is intended for use at the trial. 
              But this is to be matched against the other realities—such as that the  
      District Court may well not have considered the differences between its  
30      pre-trial discovery procedure and the stricter approach of our courts.  
      These are realities which can render the intention ambiguous. Why, in  
      those circumstances, should the patent potential for abuse of the request  
      be ignored in deference simply to the stated intention? 
              And what of a case, as I believe the present to be, in which is absent  
35      any proven intention on the part of any party—including the party at  
      whose instance the request is made—but none the less the request itself  
      patently contains the potential for abuse as a fishing exercise? Is the  
      requested court then to be obliged to conclude that—as the request is one  
      for oral testimony and as the witnesses do have some relevant testimony  
40      to give—the obvious potential for abuse is no ground for refusing? 
              These are questions which I respectfully believe fairly arise from a  
      reading of the Vice-Chancellor’s opinion in the First American case. 
              I therefore feel compelled to conclude that they are no more persuasive  
      than the reasoning of Kerr, L.J. in In re State of Norway’s Application  
45      (No. 1) (3) ([1987] Q.B. at 482–483). And as we have seen, Kerr, L.J. had  

2000 CILR 80

      found previous support in the sage words of Lord Fraser and of Lord  
      Wilberforce from the Westinghouse case (5) ([1978] A.C. at 610). 
              For the sake of argument, further analogous reference was also made to  
      the court’s exercise of its subpoena powers to compel witnesses to testify  
    in domestic cases—as a reference point for the construction of s.2(2) of  
      the English Act of 1975 (s.2(3) of the Schedule to the Evidence Order). 
              These are the provisions which limit the court’s power to compel  
      testimony in aid of letters of request only as it could for similar purposes  
      in domestic cases. 
10              By reference to that analogy for present purposes, I simply conclude— 
      by repeating the views earlier expressed—that it is difficult to imagine  
      that our courts in domestic proceedings could seek to compel a witness,  
      even one having some relevant testimony to give, to submit to the  
      patently exploratory exercise which the schedule of testimony in this case  
15      would permit. 
              For all those reasons I would refuse this request also on the basis— 
      whether as a matter of discretion or jurisdiction I make no finding—that it  
      would allow, intentionally or otherwise, an impermissible fishing  
          A redrafted letter of request 
              The arguments in this matter forced the elicitation of issues which  
      clearly point, in my view, to the sorts of questions which could readily be  
      listed in a carefully redrafted schedule of requested testimony and so as to  
25      overcome the objections in this case. The intended witnesses have  
      recorded their willingness to assist if provided with such a schedule by  
      which they would be guided in preparing themselves to testify. 
              I have no doubt that with the assistance of counsel for First American,  
      such a schedule can now readily be prepared. 
30              I close by reaffirming the willingness of this court to assist, whenever  
      possible, in the interest of comity. 
Order accordingly.
Attorneys: Maples & Calder for Price Waterhouse Cayman; C.S. Gill & Co. for First American Corp.