Rio Tinto Zinc Corporation v Westinghouse Electric Corporation; Re Westinghouse Electric Corporation Uranium Contract Litigation M.D.L. Docket No. 235 (No. 1) and (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE SHAW,THE MASTER OF THE ROLLS |
| Judgment Date | 11 July 1977 |
| Neutral Citation | [1977] EWCA Civ J0526-3 |
| Judgment citation (vLex) | [1977] EWCA Civ J0711-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1977 |
In the Matter of the Evidence (Proceedings in Other Juris-Dictions) Act, 1975
In the Matter of Order 70 of the Rules of the Supreme Court
In the Matter of Civil Matters Now Pending Before the United Stums District Court th2 Eastern District of Virginia Richmond Division
In Re Westinghquse Electric Corporaticn Uranium Contract Litigation M. D. L. Docet No. 235
[1977] EWCA Civ J0526-3
The Master of the Rolls (Lord Denning)
Lord Justice Roskill and
Lord Justice Shaw
In The Supreme Court of Judicature
Court of Appeal
(On Appeal from Mr. Justice Mackenna)
MR. RAYMOND KIDWELL, Q. C. and MR. R. WOOD (instructed by Messrs. Linklaters & Paines, Barrington House, 50-67 Gresham Street, London EC2V 7JA) appeared on behalf of the Appellants.
MR. T. H. BINGHAM. Q. C. and MR. T. WALKER (instructed by Messrs. Freshfields, Grindall House, 25, Newgate Street, London, EC1A 7LH) appeared on behalf of the Respondent.
THE MASTER OF THE ROLIS: As this is an urgent master we will give judgment straight away. It arises out of a dispute now going on in the United States of America, In the 1960s the Westinghouse Electric Corporation made contracts with power companies under which Westinghouse were to build nuclear power stations and to supply them with uranium as a fuel. The. prices were stated in the contracts. There was an escalation clause to meet increases in the general cost of living, but not to meet changes in the market in the price of uranium.
At the time when Westinghouse agreed to supply this uranium, the price was comparatively low, but in the middle 1970s, especially after the raising of the oil prices, the price of uranium rose very sharply. In February 1973 it was only 86 a pound, but three years later it had risen to 841 a pound. The result was that Wistinghouse found themselves in great difficulty, both in getting uranium and in supplying it to the power stations. So much so that they were unable to fulfil their contracts. They sought to excuse themselves on the ground that the performance of them was "commercially impracticable" a line of defence wilh which we are familiar in England, and known as "frustration owing to supervening circumstances".
Then the power companies brought proceedings against Westinghouse in the States of Virginia and Fenneylvanin, In addition there is an anti-trust suit in the State of Illinois, The amount in dispute is extremely large, 2, 000 million or 1, 000 million sterling.
At first sight this dispute seems to have nothing to do with England at all or any of us. But it appears that in Australia about a year ago someone surreptitiouslygot access to the files of an Australian uranium produces and Westinghouse got hold of those files. They disclosed the existence of an international cartel in uranium. This cartel was an association by which the big producers of uranium complained to regulate the output of uranium and the price of it. We are told that Australia, Canada, South Africa, France and the English Company of Rio Tinto were parties to this cartel. Its object is said to have been to manipulate the market in uranium, to limit competition and to force prices up to excessively high levels. The files showed that in about 1972 there was formed a policy committee, an operating committee, a secretariat, and a Uranium Institute with its headquarters in London here.
To aid their defence Mr. America, Westinghouse want to prove the existence of this cartel and its dealings. They want to see all the documents which have been passing between the members and the notes of all the meetings. They desire to show the existence of this "conspiracy", as they would call it, to keep up prices. They have- tried and failed in Australia, Canada, France and South Africa. We were told that in those countries regulations have been passed 80 as to forbid the documents of the cartel being disclosed. Now Westinghouse seek to get them from Rio Tinto in England.
There are me regulations in England forbidding access to these documents. The disclosure of them depends on our ordinary rules of law. We have before us a courteous request from the United States Court for the District of Virginia. It has asked us to order the Ric Tinto Zinc Company and its principal directors, Sir Mark Turner, LordShackleton and others, to produce the documents relating to this cartel, and also to give evidence here in England. The Federal Judge, Judge Merhige, has issued Letters Rogatory (which we call Letters of Request) addressed to us on the 21st October, 1976. The actual words are worth noting:-"The People of the United States of America to the High Court of Justice in England. Greetings:
Whereas, certain actions are pending in our District Court for the Eastern District of Virginia, Richmond Division, in which the corporations listed in Schedule attached hereto are plaintiffs and Westinghouse Electric Corporation is defendant, and it has been suggested to us that justice cannot be done among the said parties without the testimony, which is intended to be given in evidence at the trial of the actions, of the following persons residing in your jurisdiction" - the directors of Rio Tinto Zinc - "nor without the production of certain documents in the possession of the Rio Tinto Zinc……relating to the existence and terms of various agreements, arrangements or concerted practices ….
And Whereas the existence and terms of the agreements, arrangements or concerted practices are relevant to the matters in issue in the actions at present in this Court ……We, therefore, request that in the interest of justice, you cause by your proper and usual process Sir Marie Turner", and the others "to appear before any consul of the United States in London to be examined orally as witnesses", and "cause the Rio Tinto Zinc Corporation to produce the documents enumerated in Schedule B hereto, being documents which appear to be or to be likely to be in the possession, custody or power of the Rio Tinto Zinc Corporation… …"
The Letter Rogatory finished with the assurance: "and we shall he ready and willing to do the same for you in a similar case whenrequired."
A for days ago on 20th May, Federal Judge Merhige made a supplement to these Letters in which he makes it clear that the Letters Rogatory are concerned with material that is required not merely for pre-trial procedure (as it is called in the United States of America) but for evidence and documents for actual use at the trial. He tells us that he has ordered that the trial of the proceedings in Virginia shall commence on August 22nd, 1977. He desires that all proceedings here be completed at the earliest possible date, so that the plaintiff shall have an adequate opportunity to consider such testimony and documents in connection with the presentation of their case.
Such is the request made by the' United States Federal Court. It is our duty and our pleasure to do all we can to assist that court, just as we would expect the United States court to help us in like circumstances. "Do unto others as you would be done by."
In answering this request, we have to go by our English statutes. Until 1975 the law on this subject was governed by the Foreign Tribunals Evidence Act of 1856. There have been many decisions on that Act. Notably, in our present context, is the Radio Corporation case (1956) 1 Queen's Bench, 618. The Divisional Court there made it quite plain that we should not accede to anything in the nature of a roving enquiry in which a party sought to "fish out" something. (It was thought that pre-trial discovery was of this nature.) But that case should not be read as putting any difficulty inthe way of relevant evidence and ancillary documents, That was made clear by the latest case before the new Act It was the American Express case (1967) I Lloyd's List, page 222.
The 1856 Act han now been replaced by the Evidence(Prcceedings in Other Jurisdictions) Act, 1975. It was passed so as to give effect to a convention held at The Hague in 1968. It makes new provision for enabling the High Court to assist foreign courts in obtaining evidence here. Section is expressed in much wider language than the 1856 Act. The High Court is empowered to make provision for the examination of witnesses, for the production of documents, for the inspection of property and many other things which were not within the 1856 Act at all, So long as the evidence is required for use in civil proceedings, the request of the foreign court should usually be granted; provided -that the evidence is relevant to the issues in dispute in the foreign court. (The only limitations are those contained in Section 2(4) and Section 3. They require separate consideration.)
Mr. Kidwell made, however, a general submission. He asked us t- threw cut these Letters Regatcry altogether. He submitted that this case is just like the Radio Corporation case in 1956. The United States Court, he said, want the documents for "pre-trial discovery" - in the sense in which that phrase was there used - that is to discover documents "which are not necessarily relevant in the trial, but they might lead to a train of enquiry which night itself lead to relevant material"
The first answer to this is given by Federal Judge Merhige himself. In his latest supplement to the Letters Rogatory he made it clear that that Court requires thedocuments, not for pre-trial discovery, but for use at the actual trial itself which has been listed for the 22nd august, 1977.
The second answer is to be found in the Convention. It deals with pre-trial discovery in Article 23 which said: A...
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