IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM THE DRAMMEN BYRETT 05-April-2000
[2000 CILR 81]
IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM THE DRAMMEN BYRETT
GRAND COURT (Smellie, C.J.): April 5th, 2000
Evidence—assistance to foreign court—examination of documents and witnesses—court may modify request for oral evidence if scope of examination amounts to “fishing”—may not so restructure or rephrase request as to alter its substance—questions requiring reference to documents must specify documents to be produced
Evidence—assistance to foreign court—examination of documents and witnesses—requesting court may not extend scope of request for oral evidence by seeking cross-examination on answers to listed questions—new request required to change from “list” to “subject-matter” format under Hague Convention, art. 3(f)
    The applicants applied for an order for compliance with a letter of request from a Norwegian court.
    The applicants were defendants in an action for damages in the Norwegian court brought by the estate of a wealthy Norwegian businessman in respect of his foreign assets transferred to a Bahamian trust under their control. The trust was later converted to a Cayman trust, and the assets were subsequently transferred to another Cayman trust. The charitable nature of the original trust was challenged in the Grand Court and, on appeal to the Court of Appeal, it was held not to be a valid charitable trust (see 1997 CILR 527).
    The Norwegian court requested that the trustee of the original trust and the Cayman counsel representing the Attorney General in the Cayman proceedings give evidence by way of deposition for use in the proceedings there. A list of questions to be put to the witnesses and documents to be produced to the court was attached to the request. The Norwegian court later issued a supplementary statement for the benefit of the Grand Court to the effect that the witnesses should be subject to examination and cross-examination by counsel for the parties to the Norwegian proceedings on the basis of their answers.
    They submitted that (a) whilst they were prepared to answer certain specific questions and produce relevant documents for use in the Norwegian court, parts of the request should be struck out or modified by the Grand Court as being insufficiently particularized or so broad and speculative in nature as to constitute “fishing” for information leading to alternative lines of enquiry; and (b) since the Norwegian court had opted,
2000 CILR 82
under art. 3(f) of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, to list the questions to be posed and had submitted the list as an exhaustive account of the proposed examination, it could not now extend that list by seeking cross-examination of the witnesses upon their answers.
    Held, making the following order:
    (1) The witnesses’ objections to the request as presently formulated were well-founded. The speculative or “fishing” nature of parts of the request related both to the production of documents and the giving of oral evidence. The court had a discretion to adopt a “blue pencil” approach to its order for compliance, allowing the request in part by amending the offending references and clarifying them in as few words as possible. It could not, however, restructure or recast the request so that it became different in substance from the original. In accordance with s.2(4) of the Schedule to the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, those questions calling for specified and unspecified documents (e.g. minutes of board meetings) to be produced would be redacted to require only the former. Other questions of an open-ended nature, seeking to elicit evidence leading to new avenues of enquiry, relating to matters not mentioned in the Norwegian proceedings, or requiring detailed evidence of events many years ago to be given from memory, would be deleted or curtailed to remove the potential for abuse (page 85, line 26 – page 86, line 35).
    (2) Furthermore, no additional questions following on from those specified in the request would be permitted. Article 3(f) of the Hague Convention required the requesting court to elect whether to list the actual questions or the subject-matter upon which examination would take place, and having elected to submit a comprehensive list and stated as much in the request, the Norwegian court would not be permitted effectively to alter the format by seeking wide-ranging examination and cross-examination of the witnesses. Such a fundamental change would require a new request to be issued (page 86, line 38 – page 88, line 3).
Cases cited:
(1)      First American Corp. v. Zayed, 2000 CILR 57, applied.
(2)      ­Voluntary Purchasing Group Inc. v. Insurco Intl. Ltd., 1994–95 CILR 84, applied.
Legislation construed:
Grand Court Rules, O.39, r.8(1):
    “Subject to any directions contained in the order for examination—
(a)    any person ordered to be examined before the examiner may be cross-examined and re-examined; and
(b)    the examination, cross-examination and re-examination of
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persons before the examiner shall be conducted in like manner as at the trial of a cause or matter.”
Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, 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. 3(f): The relevant terms of this paragraph are set out at page 87, lines 33–37.
D.T. McGrath for the applicants;
A. McN. McLaughlin for the estate of Anders Jahre;
A.J.E. Foster for the trustees of the Aall Foundation and Robert Slatter;
J.P. Walton for the Compass Trust (representing the estate of the settlor of the Continental Foundation and the Aall Foundation);
W.J. Helfrecht as a witness and for the Attorney General (but not as amicus curiae) on matters relating to the Confidential Relationships (Preservation) Law.

              SMELLIE, C.J.: Before me is a letter of request from the court of  
      Drammen, Norway. The request seeks the taking of evidence by way of  
      depositions from the witnesses, Mr. William Helfrecht and Mr. Robert  
30      Slatter. 
           
          Background 
              The circumstances of the case in Norway are described in the request  
      in brief. The action in question is an action for damages brought by  
35      Anders Jahre’s estate against the defendants. The action also includes a  
      claim brought by Anders Jahre’s estate against Lazard Brothers & Co.  
      Ltd. concerning the transfer of 16¼% of all the shares issued in Bulls  
      Tankrederi A.S. The plaintiff alleges that Anders Jahre, prior to his death  
      in 1982, had built up a considerable fortune outside Norway. It is also  
40      alleged that, at the time of Anders Jahre’s death, the greater part of his  
      foreign assets were in the Panama-registered Continental Trust Co. Inc.,  
      formerly Pankos Operating Co. S.A. These facts are contested by the  
      defendants. 
              In 1976 a foundation was established in The Bahamas for the purpose  
45      of owning the shares in Continental Trust Co. Inc. 80% of the shares in  
2000 CILR 84

      Continental Trust Co. Inc. were transferred to the Continental  
      Foundation. The remaining 20% of the shares were transferred to another  
      shareholder. 
              One of the main submissions in the case put forward by Anders Jahre’s  
5      estate is that the establishment of the Continental Foundation was based  
      on funds owned by Anders Jahre, but that this did not entail a genuine  
      transfer of the assets in Continental Trust Co. Inc. to the Foundation. It is  
      therefore maintained that the assets belong to Anders Jahre’s estate and,  
      to the extent that they have been used up since 1976, they must be made  
10      good by the defendants. 
              The background to this is that Anders Jahre’s estate asserts that the  
      assets were wholly or partly used up as a consequence of acts and/or  
      omissions on the part of the defendants, rendering them liable in damages  
      because, according to Anders Jahre’s estate, they were exercising  
15      supervisory and control functions in respect of Anders Jahre’s assets held  
      outside Norway. 
              The main subject-matter of the action is, accordingly, whether the  
      transfer of the shares in Continental Trust Co. Inc. to the Continental  
      Foundation represented a genuine transfer or whether the transfer was a  
20      pro forma one and with subsequent negligence on the part of the  
      defendants in relation to the supervisory obligations which Anders Jahre’s  
      estate alleges that the defendants had on Anders Jahre’s behalf. 
              To complete the background, it should be noted that the Continental  
      Foundation was relocated as a Cayman trust pursuant to cl. 29 of its deed  
25      of settlement and subsequently its assets were transferred to and settled  
      upon the trust of the Aall Foundation, another Cayman trust. Although it  
      has been conceded that the Aall Foundation is validly constituted, the  
      estate of Anders Jahre maintains a claim to the assets on the basis that  
      they are held by the Aall Foundation upon constructive or resulting trust  
30      for the estate. 
           
          Objections to the request 
              The request attaches lists of questions approved by the Drammen court  
      by agreement of the parties joined in the action before it. It has been  
35      conceded on behalf of Mr. Slatter that it is appropriate for an order to be  
      made for him to be deposed, subject to certain limitations advanced in  
      submissions on his behalf. Mr. Helfrecht has agreed to answer the  
      questions as listed, to the limited extent of his knowledge acquired as  
      Crown Counsel representing the Attorney General in earlier proceedings  
40      before this court relating to the validity of the Continental and Aall  
      Foundation. 
              The concession on behalf of Mr. Slatter was, however, made subject to  
      certain objections raised by Mr. Foster in relation to some of the specific  
      questions listed. These relate to the breadth and lack of specificity of  
45      some of the questions and to their speculative or “fishing” nature. I will  
2000 CILR 85

      refer to these as the immediate objections. A further objection has been  
      taken by Mr. Foster on behalf of the trustees of the Aall Foundation  
      which raises issues of public policy. Briefly stated, this latter objection is  
      that as the evidence to be given by Mr. Slatter is intended for use in the  
5      proceedings in Norway in which, it is alleged, evidence obtained illegally  
      contrary to the Confidential Relationships (Preservation) Law (“the  
      Law”) has been used, this court should not allow the request. 
              I need not go into the circumstances of that objection or the allegation  
      upon which it is based, as it is not to be resolved in the context of the  
10      present proceedings which are properly brought within the Evidence  
      (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (“the  
      Evidence Order”). I confine my present concerns to the requirements of  
      the Evidence Order, which extended to the Cayman Islands the provisions  
      of the Evidence (Proceedings in Other Jurisdictions) Act 1975 with  
15      modifications. That Act, in turn, gave effect to the Convention on the  
      Taking of Evidence Abroad in Civil or Commercial Matters, the Hague  
      Convention under which the request is made. 
              The public policy objection, if advanced, must be advanced instead in  
      the context of proceedings to be brought under s.4 of the Law in which  
20      the Attorney General will be allowed, as amicus curiae, to present his  
      views in the public interest. This will all be subject also to whether this  
      court can ever establish that the abuse complained of did take place. The  
      estate of Anders Jahre, on behalf of which, it is alleged, the illegally  
      obtained evidence was adduced in the Norwegian proceedings, has  
25      denied the allegations. 
              The immediate objections are, by contrast, easily understood and their  
      merits virtually self-evident from the face of the questions themselves.  
      Fortunately, they are also amenable to resolution by means of the “blue  
      pencil” approach, so that I can uphold those objections which I consider  
30      to be valid while granting the request in substance. This can be done by  
      redacting the offending references and by clarification in as few words as  
      necessary, so as to ensure that there is no rewriting of the request in  
      substance. This case comfortably falls within the ambit of the dicta in the  
      decided cases to the effect that the court has the power to allow or  
35      disallow a request in whole or in part provided that it does not embark  
      upon a process of so restructuring, recasting or rephrasing the request that  
      it becomes different in substance from the original request: see, e.g.  
      Voluntary Purchasing Group Inc. v. Insurco Intl. Ltd. (2) (1994–95 CILR  
      at 98). 
40              Some questions will give rise to the production of documents in the  
      course of Mr. Slatter’s responses and so must with sufficient particularity  
      signify the documents so as to enable him to identify them in advance.  
      “Topic 10” in the request is an example of this. It requires the production  
      of minutes of board meetings, some specified, others only alluded to, in  
45      “topic 9.” To meet the standards of particularization required by s.2(4) of 
2000 CILR 86

      the Schedule to the Evidence Order, topic 10 will be narrowed to require  
      only the production of the minutes of the meetings on the dates specified. 
              The question in the first part of topic 9 is plainly impermissible  
      because it would require the improbable recollection of discussions some  
5      12 years ago only from the witness’s memory. Topics 19 and 20 are  
      admittedly irrelevant as they are not referred to in the Norwegian  
      proceedings. 
              As for the “fishing” objections, I find that these too are largely borne  
      out by Mr. Foster’s submissions. A most obvious example of the  
10      speculative or fishing nature of the questions objected to is in topic 11.  
      There, in the context of probing the disputed charitable nature of the  
      trusts of the Continental Foundation, not only do the questions concern  
      what, if any, charitable donations were made by the Continental  
      Foundation, but also what, if any, other charitable activities or activities  
15      of any kind were carried out. In the absence of the pleadings filed in the  
      Drammen proceedings, I would not be able conclusively to decide upon  
      the relevance of this question in that context. 
              None the less, it remains a matter for this court to be satisfied whether  
      the legal requirements of the Evidence Order and of the Convention are  
20      met. The objection here is that the questions are framed so as not, in and  
      of themselves, to elicit evidence for use in the Drammen proceedings, but  
      for the purpose only of putting in train a possible line of enquiry which  
      might lead to such evidence. I am persuaded, on the preponderance of  
      authority, that even in the context of a request for testimony, this is  
25      impermissible “fishing”: see First American Corp. v. Zayed (1) for a  
      discussion of the principles which I apply here as requiring the  
      curtailment of questions which carry this potential for abuse. 
              The point can be stated in summary: There appears to be no reason in  
      principle for confining an objection to “fishing” only to requests seeking  
30      the production of documentary evidence and not to requests, such as the  
      present, which seek viva voce testimonial evidence. As we have seen  
      here, questions can just as readily be framed to elicit exploratory or  
      “fishing” responses as can requests for documents which are not  
      sufficiently particularized, intended not directly to adduce evidence but  
35      hoping to open up avenues of exploration leading to evidence. 
           
          Cross-examination 
              During the arguments, the issue emerged whether counsel would be  
      allowed to put further questions to Mr. Slatter by way of follow-up to  
40      answers he might give to the questions listed. I ruled that no such cross- 
      examination would be allowed. None the less, I now see before me, in  
      Mr. McLaughlin’s written submissions on behalf of the estate of Anders  
      Jahre, reference to a statement issued by the Drammen court addressed to  
      this court purportedly in clarification of the request and to the effect that  
45      both examination and cross-examination of Mr. Slatter should take place  
2000 CILR 87

      and that the counsel for the parties should be allowed to conduct the  
      examination. 
              This “clarification” was issued by the Drammen court after my earlier  
      ruling in which I also expressed the view that there was no need to revert  
5      to the Drammen court on that issue, as it was clear to this court what the  
      ambit of the questioning must be. The ambit was clear primarily from the  
      face of the request itself which states on page 1 (signed by the Norwegian  
      judge): “Attached to the individual letters of request are separate  
      interrogatories which contain the sum of the questions the parties wish to  
10      have put to the witnesses concerned. The interrogatories are formulated in  
      English.” There was no reference in the request to the need for cross- 
      examination. 
              When those factors were taken against the background of the listed  
      questions having been prepared and agreed by the parties as representing  
15      their respective needs for examination of the witnesses, cross-examination  
      seemed neither necessary nor appropriate. In these circumstances, I am  
      unable to accede to the subsequent “clarification” from the Norwegian  
      court over the objection of Mr. Slatter and of the other parties represented  
      by Mr. Foster. Cross-examination at the discretion of the counsel for the  
20      parties could become as open-ended and as protracted as each deems  
      necessary and would quite fundamentally recast the ambit of the request.  
      That would be unfair to the witnesses, who are entitled to some prior  
      understanding of the ambit of the questions to be put. 
              The court is also obliged to circumscribe the ambit of the request  
25      which it allows, for the purpose, amongst others, of guiding the witnesses  
      as to the extent to which they might disclose confidential information.  
      This is although, in appropriate cases, it can allow cross-examination  
      pursuant to the Grand Court Rules, O.39, r.8(1). 
              There is a further important reason. The request from the Drammen  
30      court takes the form of listed questions to be put to the witnesses. This list  
      defines the nature of the request for the purposes of art. 3(f) of the  
      Convention which provides: 
                      “A Letter of Request shall specify— 
                          . . . 
35                          (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.] 
          There is an election to be made under the Convention (see the First  
      American Corp. case (1) (2000 CILR at 73–74) and it seems to me that the  
40      Drammen court has elected the listing format. The “clarification” inviting  
      this court to allow cross-examination suggests that the questioning is no  
      longer to be confined within the bounds of that election but should be  
      allowed as if the request were based on the subject-matter format  
      mentioned in art. 3(f) of the Convention. Such a fundamental change  
45      should require that the requesting court submits a different request. 
2000 CILR 88

              I grant the request as it now stands subject to certain of the immediate  
      objections which I allow, and direct the witnesses to answer the questions  
      redacted as shown in the schedule to the request. The final order to be issued  
      will provide for the appointment of the examiner and ancillary matters. 
Order accordingly.
Attorneys: Quin & Hampson for the applicants; Charles Adams, Ritchie & Duckworth for the estate of Anders Jahre; Walkers for the trustees of the Aall Foundation and Robert Slatter; Hunter & Hunter for the Compass Trust; Government Legal Dept.