Allergan, Inc v Amazon Medica [2018] EWHC 307 (QB)

Judge sets aside order made pursuant to a letter of request from a US Court.

This was an application to set aside an order made by a master pursuant to a letter of request issued by a US court requiring the UK applicant to provide oral evidence and documents.

Cockerill J confirmed that the first step when considering a contentious letter of request is to keep an eye on the underpinning jurisdiction: "In other words, when talking of compelling oral evidence the comparator is with when a witness summons would be available in proceedings in the English Court". A two-stage test has been laid down in the case of First American Corp v Sheikh Zayed Al-Nahyan [1999], namely: (i) whether the intended witness can reasonably be expected to have relevant evidence and (ii) whether there is an intention to obtain evidence for use at trial. Unless the US court has considered the English approach and confirmed that the evidence sought is relevant to issues for trial, the English court is free to scrutinise the request: "It is not the same thing at all ... when a court issues a letter of request without the defendant being heard, or when the Court itself says nothing about relevance but simply records the submission of the applicant".

Here, the letter of request was issued following an unopposed paper application...