Smith v Phillip Morris Companies Inc.
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ANDREW SMITH,The Hon. Mr. Justice Andrew Smith |
| Judgment Date | 27 April 2006 |
| Neutral Citation | [2006] EWHC 916 (QB) |
| Court | Queen's Bench Division |
| Date | 27 April 2006 |
| Docket Number | Case No: S/06/0018 |
[2006] EWHC 916 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Andrew Smith
Case No: S/06/0018
Andrew Hunter (instructed by Norton Rose) for the applicant
Sara Cockerill (instructed by Irwin Mitchell) for the respondents
Hearing dates: 17 March 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 16 January 2006 Master Turner ordered Mr Nick Brookes, Mr Keith Dunt and Mr Ulrich Herter, three former employees of British American Tobacco (Investments) Limited (which was previously known as British American Tobacco Co Ltd and to which I shall refer as "BATCo"), to attend for examination on oath under the Evidence (Proceedings in Other Jurisdictions) Act, 1975. The order against Mr Brookes has been set aside by consent. I am told that Mr Herter has not challenged the order against him. Mr Dunt is applying that the order against him be set aside.
The relevant provisions of the 1975 Act are as follow:
"1. Where an application is made to the High Court, the Court of Session or the High Court of Justice in Northern Ireland for an order for evidence to be obtained in the part of the United Kingdom in which it exercises jurisdiction, and the court is satisfied—
(a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal ("the requesting court") exercising jurisdiction in any other part of the United Kingdom or in a country or territory outside the United Kingdom; and
(b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated,
the High Court, Court of Session or High Court in Northern Ireland, as the case may be, shall have the powers conferred on it by the following provisions of this Act.
"2(1). Subject to the provisions of this section, the High Court, the Court of Session or the High Court of Justice in Northern Ireland shall each have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence in the part of the United Kingdom in which it exercises jurisdiction as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made, and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose.
"(2) Without prejudice to the generality of subsection (1) above but subject to the provisions of this section, an order under this section may, in particular, make provision—
(a) for the examination of witnesses, either orally or in writing;
(b) for the production of documents;
(c) for the inspection, photographing, preservation, custody or detention of any property;
(d) for the taking of samples of any property and the carrying out of any experiments on or with any property;
(e) for the medical examination of any person;
(f) without prejudice to paragraph (e) above, for the taking and testing of samples of blood from any person.
"(3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court".
Master Turner's order was made pursuant to a Letter of Request from the District Court of Seward County, Kansas, United States of America ("the Kansas court"), that request being made on 30 December 2005. It arises from a class action brought by a Mr Daric Smith ("the Kansas plaintiff") on behalf of himself and others similarly situated. The class on whose behalf the action is brought is defined as the named plaintiff "and all natural persons who indirectly purchased cigarettes in the State of Kansas for consumption and not for resale from Defendants (including their subsidiaries, affiliates and agents) and co-conspirators". The defendants are nine companies that do or did manufacture cigarettes, including BATCo and a company called Brown & Williamson Tobacco Corporation, which, according to the pleading of the Kansas plaintiff, is another company in the British American Group. I am told by Ms Sara Cockerill, who represents the Kansas plaintiff that another British American company which is referred to in the First Amended Petition as "the Defendant BAT", is also a defendant although curiously they are not listed as a defendant in the heading to the Request.
The Request is for "judicial assistance to obtain evidence to be used in a civil proceeding" before the Kansas court. Under the heading "Nature and Purpose of the proceedings and summary of facts" the Letter states this: "The Plaintiff class alleges that since November 1, 1993 [the defendants] have unlawfully agreed to fix the wholesale price of cigarettes and that, as a result, consumers of cigarettes in Kansas have paid higher prices than they otherwise would have paid. The Defendants deny liability and have denied these claims and charges. The Court has not ruled on the merits of claims of Plaintiff Class or of Defendants' defenses". Under the heading "Evidence to be obtained or other judicial act to be performed" the Letter continues:
"The District Court of Seward County, Kansas requests assistance in compelling the testimony… from Keith Dunt, former Managing Director for Defendant British American Tobacco Co., Ltd. Mr. Dunt's testimony is critical to the resolution of this case as detailed in the Affidavit of Isaac L. Diel, Esq.,… It is expected that the testimony in question will reveal that Mr. Dunt facilitated the exchange of cigarette pricing information among named Defendants in furtherance of Defendants' price fixing conspiracy, which existed in violation of the antitrust laws of the State of Kansas…"
There are three attachments to the Letter: attachment A is a list of "topics for examination"; attachment B is the affidavit of Mr Isaac Diel, who is an attorney for the plaintiff; and attachment C is the First Amended Petition, to which I have already made reference.
There are 17 "topics for examination" listed in attachment A. The first nine topics are couched in similar terms, namely "All communications you have had with the following former or current employees of" a named company, one being BATCo: 30 individuals are identified as former or current employees. These nine topics are unlimited in terms of the period of time that they cover. Further, seven of the nine topics are not limited by reference to the subject matter of the communication, while the other two are limited to communications relating to "cigarette pricing". I have seen no explanation for this difference. The tenth topic refers to the first nine, and it reads "Any and all conversations Mr Dunt may have had with those individuals listed in paragraphs 1–9 regarding worldwide cigarette pricing". It is not immediately clear quite how far the word "worldwide" restricts what conversations regarding cigarette pricing are covered, but certainly, like the first nine, this topic is unlimited in terms of when the conversations took place. One of the remaining six topics apparently assumes a "conspiracy"; and seeks "Information relating to a worldwide cigarette price fixing, market allocation, and product allocation conspiracy": the conspiracy is not further identified. The next five topics are the following:
"Information relating to any and all agreements among worldwide cigarette competitors: including cigarette pricing, advertising, marketing, and health effects of smoking research.
The nature of market competition among cigarette producers in North American and Latin America, including the sources of your information regarding this competition.
Any factors that affect or influence pricing decisions regarding cigarettes, including the sources for your information in this regard.
The effects of Marlboro Friday [which, I understand, as a day when the Philip Morris Group – and three companies from the group are defendants in the Kansas action – reduced the price of Marlboro cigarettes] on markets outside the US.
The relationship between cigarette prices in the US and Latin America."
The last topic is this: "The attendees and substance of discussions at tobacco director managers' meetings held in London for all BatCo subsidiary companies including Brown & Williamson". It is not restricted by reference to the date or the subject matter of the discussions. I shall refer to this topic as the "London meetings topic": none of the other sixteen topics has any particular focus upon meetings in London, or upon meetings between executives of the British America group.
Mr Diel's affidavit, the attachment B to the Request, sets out extracts from six documents. These extracts are introduced by the following: "I have personally reviewed thousands of documents produced in this matter. Keith Dunt is the former Finance Director for Defendant British American Tobacco Co., Ltd. ("BATCo"). His name appears on many of the documents that I have reviewed and that have been produced as relevant to this litigation or as reasonably calculated to lead to admissible evidence". The...
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