The High Court recently upheld a Letter or Request, even though the court recognised that there had been non-disclosure of material that was relevant to the application.
The judge considered that the non-disclosure did not mislead him to a material extent when he made his initial decision to grant the Letter of Request.
Brief background
Rolls Royce and Matthew Scott (the Respondents) applied to set aside, or vary, an order which granted a Letter of Request from a US Court.
The Respondents attacked the way in which the Letter of Request was obtained and said (among other things) that it should be set aside for failure to give full and frank disclosure.
Failure to give full and frank disclosure
The Respondents said that there has been non-disclosure by the Applicant of material which is relevant to this application, namely;
- the non-payment of the adverse costs orders made in the English proceedings,
- the alleged breach of the funding disclosure orders; and
- the fact a complaint had been made to the German Prosecuting authorities relating to events in Germany.
To give this some context, the Applicant had not paid the judgment debt or an interim costs order from a decision in the UK Technology and Construction Court on 12 July 2023. There was also a dispute between the parties as to whether the Applicant had complied with two funding disclosure orders made in those proceedings.
The Applicant accepted that with the benefit of hindsight, it might have been better to bring to the attention of the court the judicial comments made about these issues. However, it did not seek to conceal the remarks completely. The court’s decision was referred to and included in the exhibited evidence.
Were they material non-disclosures?
The question for the judge in deciding whether or not to uphold the Letter of Request was:
Did this non-disclosure result in the court being materially misled? If so, does this justify refusing the Application?
The starting point was a reminder of judicial comity. A judge concerned with a request from a foreign Court for assistance is required to do all they can to assist that court. That is so in the context that the United Kingdom and the United States are both signatories to the Hague Convention on the Taking of Evidence Aboard in Civil and Commercial Matters 1968.
A material non-disclosure of material facts may affect the court’s decision to grant assistance to the foreign court. If an Applicant’s conduct in this jurisdiction (the UK) would make it unconscionable for judge to grant the request, the request may be refused.
The judge highlighted that the non-payment of damages and costs orders is always a serious matter. However, its existence was exhibited in evidence. While it would have been “much better” if the relevant passages had been specifically referred to, rather than simply exhibited, the charge against the Applicant was really one of “burying relevant material amongst a mass of detail.”
For that reason, and “by a very small margin” the judge decided that these admitted non-disclosures did not mislead him to a material extent in his decision to grant the Letter of Request.
It was important though that there was no current finding of contempt against the Applicant. If there had been a finding of contempt, the conclusion would probably be different.
The non-disclosure of the German complaint was potentially more important as this was a complete omission. But the judge decided it was not a basis for refusing the Letter of Request. Instead, it provided a reason to impose conditions.
Analysis: a balancing act
Granting a Letter of Request is a balancing act between supporting the swift advancement of litigation overseas, and upholding the standards of fairness which make sure that both parties have an equal footing in the dispute.
The overriding consideration will always be in the interests of justice.
In this case the two jurisdictional requirements were met by the Letter of Request:
- the request was issued by and on behalf of the US Court; and
- the evidence to which the application relates is to be obtained for the purpose of the US proceedings, which were civil proceedings before the US Court.
While the application was not perfect, the non-disclosures were not fatal to it in this instance. In the interests of justice, it was fair to uphold the Letter of Request, and make certain concessions in the form of conditions, in order to recognise the non-disclosures that were serious.
Read the full decision here: Topalsson GmbH v Rolls-Royce Motorcars Limited & Anor [2025] EWHC 1584 (KB)
