High Court orders banks to disclose documents under the Evidence (Proceedings in other Jurisdictions) Act 1975

The High Court has ordered a number of banks to provide disclosure to various foreign companies, following an application seeking disclosure in accordance with a letter of request (LOR) issued by a Canadian court. The application was issued in the context of certain Canadian civil proceedings alleging that a former foreign government minister and others orchestrated an international scheme to defraud the companies of USD 3.47 billion: Sakab Saudi Holding Co v Al Jabri & Ors, Re: HSBC & Ors [2021] EWHC 3390 (QB).

This decision will be of interest to financial institutions faced with applications under the Evidence (Proceedings in other Jurisdictions) Act 1975 (the 1975 Act) and CPR 34.17 for the disclosure of bank documents for use in foreign legal proceedings. The decision highlights that the English courts will, if they can properly do so, accede to LORs issued by foreign courts seeking evidence for use in foreign litigation. However, in deciding what response to make to a LOR, the English courts can have regard to the balance to be struck, under section 2(4) of the 1975 Act, between the legitimate requirements of foreign courts and the burden those requirements may place on the intended witness. If the LOR is irrelevant, or fishing, or speculative, or oppressive, the English court can refuse it.

In the present case, the High Court was satisfied that there were no grounds on which to refuse the disclosure requested from the banks. It could not conclude in respect of the evidence sought from the banks either that: (a) the requesting court had plainly not considered the question of relevance; or (b) it is clear to the English court, even on a broad examination, that the evidence is not relevant. It was also clear that the documents sought from the banks were not part of a fishing expedition; they had not merely been requested solely for investigative purposes, and they were clearly relevant to the Canadian civil proceedings. The High Court also did not consider that there was any basis to refuse disclosure on the grounds that the documents were too broadly drafted or were oppressive. The documents identified to be produced by the banks did meet the requirements of section 2(4) of the 1975 Act. No oppression was caused to the non-respondent party and none of the banks had suggested that it would be onerous to produce the documents.

We consider the decision in more detail below.

Background

In 2008, a former Saudi Arabian government minister (Dr Al Jabri) and others allegedly carried out an international scheme to defraud several Saudi Arabian companies (the Applicants) of the equivalent of $3.47 billion. Dr Al Jabri subsequently fled to Canada.

In 2021, the Applicants issued proceedings in Canada against Dr Al Jabri in relation to the fraudulent scheme. The Canadian court then made a Norwich Pharmacal order (the Norwich Order) against various third parties including three banks in England and Wales (the Banks), requiring the disclosure of certain categories of documents. The Norwich Order also requested the judicial assistance of the appropriate courts of the United Kingdom to give effect to the Norwich Order in their jurisdiction. Since the Norwich Order was not directly enforceable outside of Canada, and the Banks refused to provide voluntary disclosure, the Applicants issued a Notice of Motion asking that the Canadian court issue a LOR to the English court for the production of documents from the Banks. The Canadian court subsequently issued the LOR attaching the Norwich Order.

The Applicants then made an application to the English High Court for an order for the disclosure of the documents specified in the LOR from the Banks. The application was not opposed by the Banks; they indicated that they either remained neutral or had no comments.

Although not a party to the application, Dr Al Jabri contested it on a number of grounds.

Decision

The High Court found in favour of the Applicants and ordered that the documents requested from the Banks be disclosed.

The key issues which may be of broader interest to financial institutions are set out below.

General principles relating to LORs

The High Court, in its analysis, highlighted the following key principles relating to LORs:

• The court's power to make an order pursuant to a LOR from a foreign court derives from sections 1 and 2 of the 1975 Act and CPR 34.17. It may make such an order only if satisfied that: (i) the application is made in pursuance of a request issued by and on behalf of the requesting court; and (ii) the evidence to which the application relates is to be obtained for the purposes of civil proceedings instituted before the requesting court.
• While it is ordinarily a respondent witness who will be concerned to object to a LOR, a non-respondent party to the underlying civil proceedings before the requesting court has locus standi to apply to set aside an order obtained ex parte under the 1975 Act (as per Boeing Company v PPG Industries Inc [1988] 3 All E.R. 839).
• English courts should, if they can properly do so, accede to LORs issued by foreign courts seeking evidence for use in foreign litigation. This is particularly important in the context of litigation arising out of fraud practised on an international scale (as per First American Corp v Zayed [1999] 1 WLR 1154).
• The authorities show that the burden is on the applicant to establish that a document sought by way of evidence does in fact exist, and the jurisdiction of the English courts under the 1975 Act is to obtain documents by way of evidence for trial rather than for investigatory purposes; section 2(3) of the 1975 Act is aimed at preventing general pre-trial discovery or 'train of enquiry' disclosure. However, the authorities made it clear that a dual-purpose request does not necessarily mean that the request will be refused (as per In Re State of Norway’s Application [1987] 1 QB 433).
• The question of relevance of evidence is generally one for the requesting court, as the court seised of the proceedings (as per Rio Tinto Zinc Corporation v Westinghouse Electric Corp. [1978] AC 547, Re Asbestos Insurance Coverage Cases [1985] 1 W.L.R. 331 and First American). If the requesting court has itself considered questions of relevance, then the English court should not embark upon a close examination of questions of relevance. However, English courts may conclude that the intended witness should not be required to give evidence on a particular topic if two conditions are satisfied: (a) the requesting court has plainly not considered the issue of relevance; (b) it is clear to the English court on a broad examination that the evidence is not relevant (as per Galas v Alere Inc [2018] EWHC 2366 (QB)).
• In deciding what response to make to a LOR, the court should bear in mind the need to protect intended witnesses from an oppressive request. There is a balance to be struck, under section 2(4) of the 1975 Act, between the legitimate requirements of foreign courts and the burden those requirements may place on the intended witness (as per First American). If the court considers that the request is irrelevant, or fishing, or speculative, or oppressive, the court should refuse it (as per Senior v Holdsworth, ex-parte Independent Television News Ltd [1976] QB 23).

Application of the LOR principles to the present case

(1) Relevance of evidence

The High Court said it would not refuse the order sought against the Banks on the grounds of relevance. It could not conclude in respect of the evidence sought from the Banks either that: (a) the requesting court had plainly not considered the question of relevance; or (b) it is clear to the English court, even on a broad examination, that the evidence is not relevant.

The High Court commented that the Canadian court did consider the issue of relevance in the Norwich Order, albeit in the context of an investigatory order rather than considering evidence for trial. The Canadian court also concluded in the Norwich Order that the documents ordered to be produced by the Banks were relevant for establishing the existence, nature, and extent of the alleged fraudulent scheme, and to trace assets. In the High Court's view, both of those topics would also be relevant to the trial in Canada.

(2) Investigatory purposes/Fishing expedition

The High Court noted that the documents ordered to be produced under the Norwich Order were primarily ordered for an investigative purpose, but that the range of documents was cut down substantially in the LOR to comply with the requirements of the 1975 Act.

The High Court then said that it did not conclude that the documents sought from the Banks were requested solely for an investigative purpose. The LOR stated that the documents ordered 'will be admissible and relevant at trial'. Given this, and the conclusion made in respect of the relevance of the documents for trial above, in the High Court's view the documents requested could not be regarded as part of a 'fishing expedition' in the way the term is commonly understood.

(3) Request for documents drafted too broadly

The High Court said that it did not consider that there was any basis to refuse disclosure on the grounds that the documents were too broadly drafted or were oppressive.

The High Court commented that the documents identified to be produced by the Banks did meet the requirements of section 2(4) of the 1975 Act. No oppression to Dr Al Jabri was caused as he was not being asked to produce the documents and none of the Banks had suggested that it would be onerous to produce the documents.

The High Court also noted that the documents ordered from financial institutions in the Norwich Order would not have met the requirements of the 1975 Act. However, the documents requested in the LOR were far more narrowly drafted, and the LOR listed specific documents or categories of documents.

(4) Section 2(3) of the 1975 Act

The High Court said that it was apparent from its consideration of the other heads of challenge to the order sought that it considered that section 2(3) of the 1975 Act was satisfied in respect of the documents sought from the Banks.

Accordingly, for all the reasons above, the High Court found in favour of the Applicants and ordered that the documents requested from the Banks be disclosed.