Court Of Appeal Allows Party To Gather Documentary Evidence From Abroad

• Jurisdiction: European Union
• Law Firm: Norton Rose Fulbright
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Author: Ms Eleanor Flanigan
• Published date: 26 May 2023

In Soriano v Forensic News LLC & Ors[2023] EWCA Civ 223, the Court of Appeal upheld a decision refusing to grant an anti-suit injunction to restrain a US discovery application. The Defendants had applied to a US court to obtain documents held by a bank in the US, which they intended to use in their defence of the English proceedings.

The decision gives helpful guidance on the courts' approach to defendants who seek to use foreign court procedures to gather evidence to support their defence to English litigation.

Background

The Claimant sued two US based Defendants for libel. Prior to the first hearing to deal with preliminary matters, the Defendants applied to a US court seeking disclosure of documents held by a US bank connected with the Claimant. The application was made in reliance on 28 US Code s.1782. This provision permits a US court to assist in gathering evidence in support of legal proceedings in a foreign court (the "s.1782 application").

The Claimant applied for an anti-suit injunction on the grounds that the s.1782 application was "vexatious, oppressive and unconscionable" and interfered with the due process of the English proceedings. The High Court refused to grant the injunction application, finding that the application did not amount to conduct which was oppressive or vexatious, nor did it interfere with due process. The Claimant appealed on a number of grounds, including that the application was an abusive fishing expedition that was seeking to circumvent English disclosure rules.

The Court will not prevent a party from evidence gathering in a lawful manner

The Court of Appeal upheld the judge's decision and found there would be no unwarranted interference with the efficient management of the libel action. The Court noted that whether such an application is abusive is a factual evaluation and the Court of Appeal will be slow to interfere with such a factual assessment unless the judge had made a legal error.

The Court of Appeal addressed two of the grounds of appeal as follows:

1. The abuse ground The Claimant's criticisms of the breadth of the s.1782 application was a matter for the US court. Although the s.1782 application was far broader than any third-party disclosure order the English court would make, the US court could control its scope.The Court of Appeal referred to US authority which noted that the s. 1782 procedure was to assist foreign courts, and a US court could take into account the nature of the foreign tribunal, including...