Re Pan American World Airways Inc.'s and Others Application
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 15 May 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0515-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0466 |
| Date | 15 May 1992 |
[1992] EWCA Civ J0515-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. SIMON GOLDBLATT Q.C., sitting as a Deputy High Court Judge)
Royal Courts of Justice.
The Master of The Rolls
(Lord Donaldson)
Lord Justice Balcombe
Sir John Megaw
92/0466
In The Matter of The Evidence (Proceedings In Other Jurisdictions) Act 1975
In Re Air Disaster At Lockerbie, Scotland, on December 21, 1988
MR. DAVID PANNICK (instructed by Messrs. Frere Cholmeley) appeared on behalf of the (Applicants, Pan American World Airways Inc.) Respondents.
MR. A.W. CHARLES and MISS F. PIRIE (instructed by the Treasury Solicitor) appeared on behalf of the Treasury Solicitor.
THE MASTER OF THE ROLLS ( giving the judgment of the court):
Introductory
Proceedings are pending in the United States District Court for the Eastern District of New York in which representatives of the estates and families of passengers and crew members who died when Pan American World Airways Flight 103 crashed at Lockerbie on 21st December 1988 claim damages from Pan American World Airways Inc., Pan Am World Services Inc. and Alert Management Services Inc. On 24th January 1992 the Honourable Thomas C. Platt, Chief Judge of that court, issued a formal letter of request for international judicial assistance pursuant to the Hague Convention of 18th March 1970 on the taking of evidence abroad in civil or commercial matters. The request was addressed to the Foreign and Commonwealth Office which is the central authority of the United Kingdom for the purposes of the Convention. It sought the examination of Dr. Thomas Hayes, formerly senior forensic scientist in the Forensic Explosives Laboratory of the Royal Armament Research and Development Establishment, Dr. Hayes having played a leading role in that capacity in the investigation of the crash.
The procedure for dealing with such requests is set out in Order 70 of the Rules of the Supreme Court and often involves the Treasury Solicitor making application to the court under the 1975 Act (see Order 70 rule 3). The power to make orders under that Act pursuant to letters of request from a foreign court is assigned to the Queen's Bench Division of the High Court (see Order 70 rule 1(2)). Nothing turns on the procedure adopted in this case and it suffices to say that when, on 8th April 1992, the matter came before Mr. Simon Goldblatt, Q.C., sitting as a deputy High Court judge, the application for an order under the 1975 Act was made by those who are the defendants in the United States action and it was opposed by the Treasury Solicitor, although purists might perhaps have expected that any opposition would have been made by or on behalf of the Attorney General, the objection being one taken on behalf of the Crown. That objection was quite simply that the courts of this country have no power to make the order applied for.
The judge ruled that he had power to make the order and did so, but action under that order was stayed pending the hearing of this appeal by an order of this court made on 14th April 1992. Skeleton written arguments were submitted by both parties in accordance with the usual procedures of this court and this was followed by oral argument in open court on 5th May 1992. At the conclusion of that argument we announced that the judge's order would be set aside and the application refused for want of jurisdiction. However, in the light of the importance of this decision to the United States' court, to the parties to the proceedings in that court and in clarifying the law of England, we announced our intention of expressing our full reasons in writing to be delivered at a later date. This we now do.
The issue
The issue is a narrow one, namely whether on the true construction of section 9(4) of the 1975 Act and in the light of the facts that (a) Dr. Hayes was a servant of the Crown at the time when he made his investigation into the Lockerbie disaster, (b) he has since retired from the service of the Crown, and (c) that the evidence sought relates to what he discovered when acting as such a servant, the court has any power to make the order sought.
Legislative history
The 1975 Act was passed in May 1975, but only took effect from 4th May 1976. The Hague Convention had been signed on behalf of the United Kingdom in March 1970 and was undoubtedly in the contemplation of the legislature when passing the 1975 Act, notwithstanding that the Convention was only ratified by the United Kingdom on 16th July 1976 (see In Re Westinghouse Uranium Contract [1978] A.C. 547, 608). It is common ground that any power to make the order sought must be found in the Act, since the English courts have no inherent jurisdiction to act in aid of a foreign court and, as a matter of English domestic law, treaties only take effect as part of that law to the extent that they are incorporated by statute, with or without modification. It was also, we think, common ground and is certainly correct that, against this background, any ambiguity in the Act should be resolved in favour of consistency between the Act and the Convention, the presumption being that the legislature was seeking to give effect to the principles of the Convention and would not lightly legislate inconsistently with the United Kingdom's treaty obligations thereunder ( Garland v. British Rail Engineering Limited [1983] 2 A.C. 751, 771).
Public interest immunity
Although it has no bearing on our decision, it should be pointed out that had the courts had power to make the order sought, Dr. Hayes' evidence would in any event have been circumscribed by two public interest immunity certificates issued on 13th April 1992 respectively by the Secretary of State for Transport relating to "security measures" and by the Lord Advocate in relation to potential criminal proceedings in Scotland. A third public interest immunity certificate of the same date issued by the Secretary of State for Transport relating to particular details of the explosive device thought to have been involved in the disaster has now been withdrawn. It should also be pointed out that the Crown, in the shape of the Ministry of Defence, has said that no objection would be raised to Dr. Hayes giving evidence in strictly...
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