Law Report: Foreign court can help with papers: Georgios Panayiotou and others v Sony Music Entertainment (UK) Ltd. Chancery Division (Sir Donald Nicholls, Vice-Chancellor), 15 July 1993

The English court has an inherent jurisdiction to issue a letter of request to the judicial authorities of a foreign country seeking their aid in the production of documents in a company's possession.

Sir Donald Nicholls V-C directed the issue of a letter of request to the New York court for the production of documents by a Sony company carrying on business in New York.

In 1988 the first plaintiff, known professionally as George Michael, and two of his companies entered into agreements in respect of his performances as a recording artist with the defendant, CBS (UK) Ltd. He has now brought proceedings claiming that he is not bound by the agreements as they are in unlawful restraint of trade.

The Sony Corporation of Japan has taken over the CBS group. To know the full extent of the benefits passed by the plaintiffs under the recording agreements it is necessary to discover the benefits obtained by the Sony group worldwide. The plaintiffs applied to the court for the issue of a letter of request, addressed to the New York court, seeking that court's assistance.

The plaintiffs wish the New York court to require Sony Music Entertainments Inc, a Sony company in NY, to produce certain documents.

The defendant contends that under Order 39, rule 2 of the Rules of the Supreme Court, an English court can issue a letter of request for the attendance of a person to be examined and to produce documents but the English court has no jurisdiction to issue a letter of request concerned only with the production of documents.

Since under English law a company cannot be required to attend by its proper officer to give oral evidence, an order to produce a company's documents cannot be directed to an individual and therefore an order to produce documents does not lie against a company.

Mark Cran QC, Ian Mill and Pushpinder Saini (Sheridans) for the plaintiffs; Gordon Pollock QC and David Unwin (Clintons) for the defendants.

SIR DONALD NICHOLLS V-C said that Order 39, rule 2 provided that the court, where it appeared necessary for the purpose of justice, might make an order for the examination of any person on oath before a judge or examiner. The United Kingdom and the United States of America were both signatories to the Hague Convention on the taking of evidence abroad in civil or commercial matters. The Evidence (Proceedings in Other Jurisdictions) Act 1975 gave effect to the UK's treaty obligations.

The defendant contended that before the English court could issue a letter of request seeking only the production of documents, the rules needed amending. That contention could not be accepted.

The jurisdiction of the High Court to make a request to the court of another country for assistance in obtaining evidence did not derive from statute, or even from the Rules of the Supreme Court.

Those rules regulated and prescribed the practice and procedure to followed in the Supreme Court. They regulated the exercise of the court of its jurisdiction.

The court's power to issue a letter of request stemmed from the jurisdiction inherent in the court. Inherent in the court was power to do those acts which the court must have to maintain its character as a court of justice. When a letter of request was issued, the English court was doing no more than making a request to a foreign court for assistance. It was not making an order. The subject matter on which assistance was sought, the obtaining of evidence, was one over which the court had long exercised close control.

Cape Copper Co v Comptoir d'Escompte de Paris (1890) 38 WR 763 should not be taken to exlude the exercise by the court of its inherent jurisdiction to issue a letter of request to the judicial authorities of a foreign country seeking their aid in the production of documents.

The plaintiffs were not entitled to seek what was in substance discovery. The letter of request must be confined to particular documents, although they might be described compendiously.