Letters of request from foreign courts: High Court orders disclosure to assist Canadian civil fraud action

The High Court has acceded to a letter of request (LOR) from a Canadian court to order a number of banks to disclose documents for use in Canadian proceedings, but has declined to make other orders requested in the LOR. The judgment is a useful illustration of how the English courts approach such foreign judicial requests for assistance, and reinforces the importance of parties obtaining English law advice when seeking a LOR from a foreign court: Sakab Saudi Holding Co v Al Jabri & Ors, Re: HSBC & Ors [2021] EWHC 3390 (QB).

The LOR was issued by the Canadian court in the context of civil proceedings alleging an international scheme to defraud certain companies of USD 3.47 billion.

The High Court's judgment reflects the established position 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. Notably, it emphasises that this will be particularly so where the litigation concerns fraud on an international scale, given the evidential difficulties in pursuing such actions.

However, it also illustrates that an English court may refuse to make disclosure orders requested in a LOR to the extent that it considers the disclosure would be oppressive, speculative, fishing, or not relevant to the issues in the foreign proceedings.

The relevance requirement

The question of relevance is often a key issue when LORs are being considered by English courts.  As a general rule, the court will defer to the foreign court's judgment on this.  However, an English court may refuse to make the orders sought if (a) the foreign court had "plainly" not considered the question of relevance; and (b) it is clear to the English court that the evidence sought was not relevant to the foreign proceedings.

The present case highlights that, for these purposes, the "relevance" that the foreign court must have considered is the material's direct relevance to the issues in the proceedings, not just its potential relevance in purely a "chain of enquiry" sense, such as might be sufficient at an investigatory stage.

Interestingly, in the case of the evidence sought from the banks here, the High Court noted that the Canadian judge had initially been asked to issue the LOR for the purpose of enforcing an earlier Norwich Pharmacal order, which she had ordered primarily for an investigatory purpose (and therefore had only technically required her to consider relevance in a wider sense).  However, once the High Court analysed the process in which the LOR was obtained (including the English law evidence provided to the judge, the fact that the scope of documents had been cut down from those in the Norwich order, and the terms of the LOR itself), it was not satisfied that this was a case where it could be said the Canadian judge had plainly not considered the material's relevance to the issues for trial.

However, the position was different regarding documents sought under the LOR from a UK-based firm of solicitors. The High Court found that the Canadian judge had not specifically considered the relevance of those documents (as distinct from a different and narrower disclosure sought under the Norwich order). Given that, the High Court was prepared to undertake the relevance assessment itself and, on the basis of its knowledge of the Canadian fraud proceedings, concluded that the requested material was not sufficiently relevant and declined to make the disclosure order sought.

Practical takeaways

The judgment reinforces that, when a party is requesting a foreign court to issue an LOR addressed to the English courts, it is crucial that it provide the foreign court with detailed advice (from suitably qualified English law experts) as to English law and practice regarding such requests.  That advice should include making the foreign court aware that an English court will be concerned to satisfy itself that the foreign court specifically considered the relevance of the evidence to the issues in the foreign proceedings (not just its potential relevance for investigatory purposes).

Even if a foreign court is prepared to issue a LOR where such English law advice is missing or deficient, there is a high risk that it may result in an English court refusing to accede to the request and make the orders sought.

For more on the decision see this post on our Banking Litigation Notes blog.