Wadman and La Hougue Boete Société Fiduciare Avec Responsabilité Limitée v Dick

JurisdictionJersey
CourtCourt of Appeal
JudgeLe Quesne, Blom-Cooper and Frossard, JJ.A.:
Judgment Date22 April 1993
Date22 April 1993
COURT OF APPEAL
Le Quesne, Blom-Cooper and Frossard, JJ.A.:

D.F. Le Quesne for the appellants;

C.R. de J. Renouf for the respondent;

W.J. Bailhache for the intervenors.

Cases cited:

(1) Asbestos Ins. Coverage Cases, In re, [1985] 1 W.L.R. 331; [1985] 1 All E.R. 716; [1985] E.C.C. 531; (1985), 129 Sol. Jo. 189, dictum of Lord Fraser of Tullybelton considered.

(2) British Steel Corp. v. Granada TV, [1982] A.C. 1096; [1981] 1 All E.R. 417; (1980), 124 Sol. Jo. 812, dictum of Lord Wilberforce applied.

(3) D.P.P. v. Kilbourne, [1973] A.C. 729; [1973] 1 All E.R. 440; (1973), 57 Cr. App. R. 381; 117 Sol. Jo. 144, dictum of Lord Simon of Glaisdale applied.

(4) Eccles & Co. v. Louisville & Nashville R.R. Co., [1912] 1 K.B. 135; (1912), 28 T.L.R. 67; 105 L.T. 928; 81 L.J.K.B. 445; 56 Sol. Jo. 107, dictum of Vaughan Williams, L.J. applied.

(5) Norway (State of) Application (No. 1), In re, [1987] Q.B. 433; [1989] 1 All E.R. 661; sub nom. Re Jahre v. State of Norway, [1986] 1 Lloyd's Rep. 496; on appeal, [1990] 1 A.C. 723; [1989] 1 All E.R. 745, followed.

(6) Norway (State of) Application (No. 2), In re, [1989] 1 All E.R. 701; [1988] FTLR 293; on appeal, [1990] 1 A.C. 723; [1989] 1 All E.R. 745, followed.

(7) Radio Corp. of America v. Rauland Corp., [1956] 1 Q.B. 618; [1956] 1 All E.R. 549; (1956), 100 Sol. Jo. 172, dictum of Devlin, J. applied.

(8) Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434; (1978), 122 Sol. Jo. 32, applied.

(9) Seyfang v. G.D. Searle & Co., [1973] 1 Q.B. 148; [1973] 1 All E.R. 290; on appeal (1972), 117 Sol. Jo. 16.

Additional cases cited by counsel:

Abdel Rahman v. Chase Bank (C.I.) Trust Co. Ltd., 1984 J.J. 127.

Barber (J.) & Sons v. Lloyds Underwriters, [1987] Q.B. 103.

Mackinnon v. Donaldson Lufkin & Jenrette Securities Corp., [1986] Ch. 482.

R. v. Grossman (1981), 73 Cr. App. R. 302.

Talika Invs. Ltd. v. Olec Properties Ltd., 1990 JLR 200.

Trasco Intl. Ltd. A.G. v. R.M. Mktg. Ltd., 1985-86 JLR N-15.

Tucker, In re, 1987-88 JLR 473.

X A.G. v. A Bank, [1983] 2 All E.R. 464.

Legislation construed:

Service of Process and Taking of Evidence (Jersey) Law 1960, art. 3, as substituted by the Service of Process and Taking of Evidence (Amendment) (Jersey) Law 1985, art. 3: The relevant terms of this article are set out at page 62, lines 9-21.

art. 4, as substituted by the Service of Process and Taking of Evidence (Amendment) (Jersey) Law 1985, art. 3: The relevant terms of this article are set out at page 62, line 28 - page 63, line 19.

art. 4A, as substituted by the Service of Process and Taking of Evidence (Amendment) (Jersey) Law 1985, art. 3: The relevant terms of this article are set out at page 63, line 35 - page 64, line 19.

Texts cited:

Cross on Evidence, 7th ed., at 51 (1990).

Stephen, Digest of the Law of Evidence, art. 1, at 4 (1948).

Supreme Court Practice 1993, vol. 1, para. 70/1-6/2, at 1206.

Evidence—assistance to foreign court—examination of witnesses—effect to be given to Letters of Request from foreign court in so far as proper, permissible or practicable under Jersey Law—request too widely framed may be amended by excision, addition or substitution of words under Service of Process and Taking of Evidence (Jersey) Law 1960, art. 4, as amended, provided substance not altered

Evidence—assistance to foreign court—examination of witnesses—evidence taken for purposes of "civil proceedings" under Service of Process and Taking of Evidence (Jersey) Law 1960, arts. 3 and 4, as amended, to be relevant to live issues in proceedings in requesting court—contested application for financial provision in divorce proceedings still live issues—test of relevance that of requesting jurisdiction

Evidence—assistance to foreign court—examination of witnesses—confidential information not absolutely privileged from disclosure—need to preserve trust between investment company and clients may be outweighed by financial importance to party of case in requesting court and need for full investigation of matters raised

Evidence—assistance to foreign court—examination of witnesses—under Service of Process and Taking of Evidence (Jersey) Law 1960, art. 4A, as amended, witness compelled to attend for examination may object to specific questions on grounds of oppression, irrelevance or overriding confidentiality—court retains right to consider and reject objections

The District Court of Denver submitted Letters of Request to the Royal Court, seeking the examination of witnesses in Jersey in connection with proceedings in that court.

The respondent applied to the District Court of Denver for financial provision on divorce. She sought to identify and trace marital property and alleged that many of the transactions recorded between her husband and various individuals and entities, including the appellants, were illusory. Since the witnesses she had called to testify in the Denver court lived in Jersey, the Denver court issued Letters of Request asking the Royal Court to take evidence from them for the purposes of the proceedings. The Deputy Judicial Greffier agreed to the request and made an order accordingly. On appeal by the appellants, the Royal Court refused to set aside the Deputy Judicial Greffier's order but amended the Letters of Request to provide only for evidence relevant to the subject-matter of the Denver proceedings and to the husband's financial position to be taken. The proceedings in the Royal Court are reported at 1989 JLR 318.

On further appeal, and on the intervention of the intervenors, who were investors in the second appellant trust company, it was submitted that (a) the Letters of Request were still too widely framed because not all of the evidence sought was relevant to issues still open in the Denver proceedings; and (b) in any event, since it was impossible for any representative of the second appellant trust company to give evidence about the matters covered by the Letters of Request without violating the duty of confidentiality owed by the company to its clients, the court ought not to give effect to them, even where they appeared to be directed to relevant and admissible matters.

In reply the respondent submitted that (a) the evidence sought was required by the Denver court to determine the nature and extent of the marital assets, which her husband had concealed, so that it might make an order for financial provision; and (b) since information of transactions between an investment company and its clients was not absolutely privileged from disclosure, the court should exercise its discretion to compel its disclosure to assist the Denver court.

Held, dismissing the appeal but amending the Letters of Request:

(1) As a matter of principle, the requested court should always strive to give effect to Letters of Request. It should decline to comply with a foreign request only in so far as it was not proper or permissible or practicable under its own law to give effect to it. It was, however, vital that a high degree of precision be exercised by both courts. The requested court should deliver only the evidence asked for and should not rewrite the request so that it became different in substance from the original. Nevertheless, Letters of Request which were too widely framed could be amended by excision or by adding or substituting words under the Service of Process and Taking of Evidence (Jersey) Law 1960, art. 4, as amended, in order to clarify what was being sought (page 64, lines 31-34; page 65, lines 10-13; page 66, lines 18-34).

(2) The power of the Royal Court under the Service of Process and Taking of Evidence (Jersey) Law 1960, arts. 3 and 4, as amended, to obtain evidence "for the purposes of civil proceedings" required that the evidence taken was relevant, under the law of Colorado, to the issues in the matrimonial proceedings in Denver, namely, the identification and tracing of the marital property in the light of the respondent's allegations as to her husband's financial position. The information sought was "evidence at trial" in so far as it would either support or negate those allegations and would enable an order for financial provision to be made. The process bore no relation to pre-trial discovery of documents designed to lay a foundation for a cause of action or to serve some collateral purpose and allegations of "fishing" were therefore wholly inappropriate. The Letters of Request were, however, still too widely framed and would be further amended to ensure that witnesses were only examined on issues still open in the Denver proceedings (page 69, line 45 - page 70, line 10; page 70, line 24 - page 71, line 43; page 74, lines 3-40).

(3) Although confidential relationships would be respected by the court, information between an investment company and its clients was not absolutely privileged from disclosure. In the light of the respondent's allegations in the Denver court, which should be fully investigated, and of the great financial importance to her of settlement of those proceedings, the court would exercise its discretion to compel the witnesses to attend for examination before the Viscount (page 75, lines 8-27; page 76, line 28 - page 78, line 15; page 79, lines 26-28).

(4) It was nonetheless open to individual witnesses under art. 4A of the Jersey Law, as amended, to plead oppressiveness, irrelevance or overriding confidentiality in respect of specific questions put to them before the Viscount, although the Royal Court retained the right, on completion of the examination, to compel witnesses to answer. The appeal against the order of the Royal Court would accordingly be dismissed, subject to the further deletions from and amendments to the Letters of Request (page 74, lines 27-40; page 78, lines 16-42).

FROSSARD, J.A.: The District Court, City and County of Denver, Colorado issued, on December 9th and 14th, 1992, Letters of Request to the...

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7 cases
  • Lcjwy v Lcks
    • Hong Kong
    • Family Court (Hong Kong)
    • 30 June 2015
    ...considerations of confidentiality arise in the context of its position as a finance centre. A similar argument was made in Wadman v Dick [1998] 3 FCR 9. In delivering the judgment of the court, Frossard JA quoted the following passage from the opinion of Lord Goff of Chievely in Re State of......
  • Zakay v Zakay
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    • 30 April 1996
    ...3 WLR 452, CA; rvsg Re State of Norway’s Application (No 2) [1990] 1 AC 723, [1989] 1 All ER 701, [1988] 3 WLR 603, CA. Wadman v Dick[1998] 3 FCR 9, Jersey Letter of requestThe senior district judge of the Family Division requested the help of the Supreme Court of Gibraltar in obtaining inf......
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