Non Party Discovery in UK Law

The United Kingdom, when becoming parties to the Hague convention concluded in 1970, registered a reservation pursuant to Article 23 which became enshrined in the Evidence (Proceedings in Other Jurisdictions) Act 1975 making it clear that discovery against non-parties was something the English court would not provide because it simply was not part of its procedure. It is only that Act which gives the English Court the jurisdiction to make orders to assist foreign courts.

The first principle is of course that we should afford foreign courts all the assistance we can – in Lord Denning's often quoted phrase "It is the duty and the pleasure of the English courts to do all it can to assist the foreign court, just as it would expect the foreign court to help it in like circumstances". (see Lord Denning MR in RTZ v Westinghouse [1978] A.C. 547 at 560).

Second, the jurisdiction to make the order is statutory. in the English court (section 2(3)). It is that provision which precludes the English court from making orders for the taking of oral depositions from a non-party simply as part of the discovery exercise which takes place under the United States procedure (see Lord Diplock in RTZ v Westinghouse at p.634). The position is clearer still so far as documents are concerned.

Third, the fact that Letters of Request may have been issued for the purpose of obtaining discovery or pre-trial depositions which fall foul of the above does not mean that the English court has no jurisdiction to attempt to give effect to the same (see most recently Golden Eagle Refinery v Associated International Insurance COT 19 th February 1998). Those were the terms on the basis of which the Court of Appeal in the Golden Eagle Case upheld the orders for examination of witnesses.

It has been construed so as to allow documents to be compendiously described but only so long as the exact documents were clearly indicated, and the documents were shown to exist or to have existed, rather than being conjectural documents.

The reason for the application is not directly concerned with obtaining publication in the public interest or in pursuit of the principle of open justice; it is clearly to assist the BBC in their libel action. In any event, I am satisfied on the authorities to which I have been referred that an application for disclosure for the purposes of collateral litigation does not mean in any sense that the order cannot be made.