English High Court Clarifies The Position On English Courts Assisting In Obtaining Evidence For Use In Foreign Court Proceedings

Summary

In Buzzfeed Inc and another (Appellants) v Aleksej Gubarev and others (First Respondents), Christopher Steele (Second Respondent)1 the English High Court recently clarified a number of legal principles relating to the powers of the English courts to assist in obtaining evidence for use in foreign proceedings, a matter of particular relevance with regard to third parties.

Obtaining evidence under the Hague Convention

Outside the EU framework for obtaining evidence, a number of states are contracting parties to the Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters (the "Hague Convention"), including the United Kingdom and the United States.

The Hague Convention sets out a process by which letters of request for obtaining evidence can be issued by a requesting state to be executed by a receiving state, allowing for the cross-border transfer of evidence. The Evidence (Proceedings in other Jurisdictions) Act 1975 (the "1975 Act") is the means by which the United Kingdom gives effect to its obligations under the Hague Convention.

Background to the case

The First Respondents in this appeal, Mr Gubarev and two companies, had brought defamation proceedings in the United States against the Appellants in this appeal, Buzzfeed Inc and Ben Smith.

Mr Gubarev and the two companies, as the plaintiffs in the US proceedings, subsequently sought and successfully obtained the issue of a letter of request in August 2017 by the US court for assistance from the English courts. The letter of request required Mr Steele to give evidence by oral examination on 14 specified topics for the purposes of the US defamation proceedings. In November 2017 the English court made a without notice order on the basis sought, directed to the same 14 topics, for evidence to be so taken under the 1975 Act.

Mr Steele then applied in December 2017 to set aside, alternatively to vary, the without notice order, contending that the letter of request sought irrelevant evidence, was oppressive, amounted to a fishing expedition, and would compromise his source(s).

In her subsequent March 2018 judgment, the English Senior Master held that the requesting US court had not independently addressed the question of the relevance of the individual topics for examination of Mr Steele in connection with the pleaded issues. The Senior Master further held that the topics for questioning as originally drafted went beyond what was required in the US...