Court of Appeal upholds procedural orders despite risk of compliance breaching French blocking statute

A judgment handed down on Tuesday has confirmed that the English court is unlikely to refrain from making procedural orders against French parties to litigation on the basis that compliance with such orders may involve a breach of the so-called French blocking statute (French law no 68-678 of 26 July 1968, as amended): Secretary of State for Health v Servier Laboratories Ltd and National Grid Electricity Transmission Plc v ABB Limited [2013] EWCA Civ 1234.

The judgment relates to two separate appeals which raised similar questions, namely whether French parties should be required to provide disclosure (in National Grid - see post) or a response to a request for further information (in Servier) where compliance might result in a breach of the French blocking statute. That statute prohibits persons located in France (on pain of criminal sanctions) from requesting, searching for or communicating “documents or information of an economic, commercial, industrial, financial or technical nature” for use in foreign litigation. 

The Court of Appeal agreed with the reasoning of the High Court in both cases. The English court has jurisdiction to make procedural orders in cases before it regardless of whether compliance might expose a party to the risk of prosecution under a foreign law. The court may exercise its discretion as to whether or not to make an order in particular circumstances. Here the approach of both judges in deciding to make the orders was "unimpeachable", based as it was on the judges' conclusions regarding the improbability of any prosecutions being brought.

The court rejected the submissions of the appellants in both cases that the required disclosure / information could only be obtained via a request under Council Regulation (EC) 1206/2001 (the EU Evidence Regulation). That Regulation was not intended to, and did not in fact, limit the options available to Member States to obtain evidence or disclosure from parties to litigation before it.

The Court of Appeal's decision does nothing to alleviate the difficulties (as identified in our earlier post) for French parties who may be at risk of criminal prosecution in France as a result of compliance with an English court order.