Fishing in Bermuda - Letters of Request from the Family Division

In Jennings v. Jennings [2009] SC (Bda) 62 Civ, the Supreme Court of Bermuda reconsidered its approach to letters of request directed to Bermuda trustees from the English Family Court. In so doing the Bermuda Court reversed its December 2005 decision in Charman v. Charman where the Court, acting upon a Bermuda trustee's application, set aside an order for document production made pursuant to a letter of request from the English Family Court.

The issue in Charman and Jennings was whether the rules governing the scope of document production requests contained in letters of request in ordinary litigation applied to financial relief claims in the English Family Court. The House of Lords in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [1978] AC 547, limited document production requests in ordinary litigation to documents which can be proved to exist. In ordinary litigation a document production request in respect of conjectural documents is therefore not allowed. In both Charman and Jennings the documents sought in the letters of request from the English Family Court included conjectural documents.

Husband's Appeal

The English Court of Appeal in Charman v. Charman [2006] 1 WLR 1053, considered the husband's appeal against the grant of letters of request for documents and oral evidence from a Bermuda trustee.

The husband's primary ground of appeal was that the document request should be set aside because it sought conjectural documents. The English Court of Appeal in Charman ruled that the limitation on requests for conjectural documents did not apply in matrimonial litigation. This was because the English Matrimonial Causes Act imposed upon the court a "quasi-inquisitorial role" to investigate and have regard to the parties' financial resources. The court could not be fettered in discharging these duties by limiting the scope of letters of request to existing documents. Wilson LJ gave the leading judgment and said at page 1069:

"In my experience - plentiful in relation to inspection appointments, although exiguous in relation to letters of request - the wife will very seldom have the knowledge with which to prove the existence of a document which, if it does exist, may have a crucial bearing on the outcome of the financial application".

In an unpublished decision of the Bermuda Court, Bell J set aside the document production order made pursuant to the letter of request that had been upheld by the English Court of Appeal in...