Jersey Unreported Judgments

Letters of Request - reasons for setting aside the order of the Judicial Greffier.

[2018]JRC176

Royal Court

(Samedi)

21 September 2018

Before     :

Sir William Bailhache, Bailiff, and Jurats Blampied and Christensen

 

IN THE MATTER OF A LETTER OF REQUEST FOR JUDICIAL ASSISTANCE

AND IN THE MATTER OF THE SERVICE OF PROCESS AND TAKING OF EVIDENCE (JERSEY) LAW 1960 ("THE 1960 LAW")

Advocate N. M. Sanders for the Appellant.

The Respondents did not appear.

judgment

the bailiff:

1.        On 6^th January, 2017, the Judicial Greffier made an order pursuant to the Service of Process and Taking of Evidence (Jersey) Law 1960 ("the 1960 Law") that an authorised officer of the Appellant produce to the Viscount or Deputy Viscount an affidavit with supporting exhibits regarding certain information and documentation referred to in paragraphs 1 to 4 of the Act of Court which he then issued.  The information concerned the full names of the shareholders and beneficial owner or owners of the Appellant, information regarding any connection between the Appellant and a Mr Almedia, copies of contracts apparently entered into in April and September 2011 between Retkin Petro Imya Holding AS Company and the Appellant relating to the sale and purchase of liquid caustic soda, and finally information in relation to the resale of liquid caustic soda by the Appellant under further contracts in April and September 2011.  The Appellant appealed that order.  The appeal was heard on 31^st May, 2018, when none of the Respondents appeared.  The Court allowed the appeal and set aside the order of the Judicial Greffier with reasons reserved.  This judgment contains those reasons.

Chronology

2.        The Third Respondent issued a Letter of Request for assistance on 2^nd December, 2015.  Unfortunately the Letter of Request was not issued through the correct diplomatic channels and accordingly it was not forwarded to the Judicial Greffier until over a year later on 30^th December, 2016.  The Greffier having made the order now appealed, the Act of Court was served in January at the Registered Office of the Appellant, giving the Appellant twenty-one days for the evidence sought by the Letter of Request to be provided.

3.        On 27^th January, 2017, the Judicial Greffier provided Advocate Sanders of Messrs Ogier with electronic copies of the documents on the court file and redacted copies of filings made in the appeal of J v K and Others [2016] JRC 110, a case in which an appeal was brought against a Letter of Request that had been acted upon pursuant to the 1960 Law.  The deadline for compliance with the January Act of Court was extended to 23^rd February, 2017 to enable the Appellant and its advisors to consider the issues and whether there was any scope to suggest a variation to the order and / or a need to appeal.  On 23^rd February Messrs Ogier issued a summons with the grounds of appeal annexed, but were advised by the Master that he considered the appeal was too late and that an application for leave to appeal out of time would need to be made to the Royal Court.  Accordingly the proceedings were commenced by representation seeking to appeal the January order of the Greffier, seeking leave to serve the summons and the representation out of the jurisdiction and convene the Respondents to a date fix appointment and seeking a stay of execution on the orders set out in the January order pending determination of the representation and / or the appeal.

4.        On 15^th March, 2017, the Court granted leave to the Appellant to serve the summons out of the jurisdiction on the Respondents and adjourned the matter until 21^st April at which point the representation would be tabled and adjourned for a date to be fixed.  The amended summons and affidavit in support were also served on the Attorney General as partie publique and the Court ordered a stay on the January Act of Court pending determination of the appeal.

5.        Copies of the amended summons with Ukrainian translations were served on the Respondents in accordance with the Act of the Court by letters dated 27^th March, 2017, and also on the Attorney General as partie publique by a letter of the same day.  Neither the Respondents or the Attorney General responded to the service of these documents.

6.        The representation having been tabled with a return date of 21^st April in accordance with the Court's directions, the Court considered the matter further on that day and adjourned the appeal for a directions hearing on a date to be fixed by the Appellant and notified to the Respondents.  By letters dated 10^th May, 2017, to the Respondents, the Appellant notified them of the appointment to fix a date for a directions hearing.  No one attended that appointment on behalf of the Respondents and on 19^th May the directions hearing was fixed for 19^th September, 2017.  The Appellant notified the Respondents of this hearing date by letters couriered to them with Ukrainian translated copies, on 12^th July, 2017, inviting the Respondents to agree directions in accordance with the Royal Court's Practice Directions.  No response was received from any Respondent.

7.        On 19^th September, 2017, the Royal Court made further orders at the directions hearing which had been fixed.  These required affidavit evidence upon which each party intended to rely at the hearing of the appeal to be served on the other parties, and in the case of the Respondents, that evidence was required to address the particular questions set out in the September Act of Court.  These included details of the nature and current status of the proceedings before the Third Respondent, an overview of the issues raised in those proceedings, confirmation of the process by which the Letter of Request of 2^nd December, 2015, had been issued, an explanation of the basis upon which it was asserted that the documents of information sought in the Letter of Request were relevant to and necessary for the fair determination of the matters in issue in the Ukraine proceedings, and the Court also ordered that any evidence in support of or by way of objection to the grounds relied on by the Appellant under the amended summons and Notice of Grounds of Appeal should be served.  The parties were ordered to attend a further appointment to fix a date for the appeal hearing.  This Act of Court was provided to the Respondents by the Appellant by way of couriered letters, including a Ukrainian translated copy of both the letter and the September Act of Court, on 28^th September, 2017.

8.        The Appellant served its affidavit evidence upon the Respondents in accordance with the September Act of Court by letters dated 30^th November, 2017.  None of them responded.  The Respondents did not serve any affidavit in accordance with the September Act of Court.

9.        The Appellant's letter dated 28^th September, 2017, notified the Respondents that an appointment with the Bailiff's Judicial Secretary to fix a date for the hearing of the appeal had been scheduled to take place at 10.15am on 5^th December, 2017.  The Respondents did not reply to this letter, nor did they attend the appointment with the Bailiff's Judicial Secretary.  The appeal hearing was fixed to take place on 20^th March, 2018, with a time allocation of one day.

10.      During the course of preparations for that appeal, it became apparent that the Respondents had not been notified of the appeal hearing date.  Accordingly by an Act of Court dated 20^th March, 2018 the Court adjourned further consideration until 20^th April, 2018, and directed the Appellant to convene the Respondents to that Court hearing by letter enclosing the March Act together with copies translated into the Ukrainian language.  The Court also directed the Appellant to attend upon the Bailiff's Judicial Secretary to identify and provisionally reserve a potential date for the hearing of the appeal.  The Representor complied with that order by way of a letter dated 6^th April.  However, the Appellant received no response.

11.      On 20^th April, the matter was called again before the Royal Court, but the Respondents did not attend and were not represented.  The Court then made orders that the hearing date of the appeal would take place on 31^st May, 2018 and that the Respondents should be notified of that hearing date by a couriered letter enclosing a copy of the Act of Court of 20^th April, 2018, with translated Ukrainian copies.  The Appellant duly complied with the notification orders made by the Royal Court.

12.      The chronology which we have just described shows therefore that other than the receipt, belatedly, of the Letter of Request through diplomatic channels on 30^th December, 2016, the Respondents have between them taken no steps at all to engage in the process of the Royal Court.  The interlocutory orders of the Court have not been complied with, and indeed this Court does not know whether the requesting court still wants the assistance which it has requested.

Discussion

13.      We now turn to the merits of the appeal.  Advocate Sanders contends that the Respondents have not made an application for the purposes of Article 3 of the 1960 Law, which, as amended in 1985, provides as follows:-

"Article 3

Application to Royal Court for assistance in obtaining evidence for civil proceedings in a court or tribunal outside the island

Where an application is made to the Royal Court for an order for evidence to be obtained in the Island 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 a country or territory outside the Island; 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 Royal Court shall have the powers conferred on it by the provisions of this Part of            this Law."

14.       Advocate Sanders contends that the application to the Court should be supported by evidence and that a Letter of Request alone cannot amount to an application for the purposes of Article 3.  As a separate contention, he also submits that the Respondents have not complied with the directions given by the Court to provide affidavit evidence, in the absence of which compliance, the Court does not have any party advancing a case or a basis upon which the Royal Court could properly conduct an enquiry as to whether the Letter of Request should be complied with.  We are invited to look by analogy to Order 70 of the Rules of the Supreme Court 1999 which provides logical guidance as to what constitutes an application in accordance with the Hague Convention.  Order 70 Rule 2(1) provides that a request for assistance must be made ex parte and be supported by affidavit, and that there shall be exhibited to the affidavit the request in pursuance of which the application is made.  Accordingly it is said that in the High Court, it is clear from Order 70 that a Letter of Request does not stand alone as an application for assistance, but rather it forms part of the application and must be supported by evidence.

15.      The issue of Letters of Request to this Court seeking assistance is not an unusual procedure.  In our experience, almost invariably the Letter of Request is presented to this Court by the party who asked the requesting Court to make the request.  That practice can be seen from the bankruptcy procedures which are followed where orders in aid are requested, and indeed from other cases involving a request pursuant to the Hague Convention or indeed under the 1960 Law.  Indeed the Hague Convention on the Taking of Evidence abroad in Civil or Commercial Matters, a multi-lateral treaty adopted on 18^th March, 1970 (the "Hague Convention") provides at Article 3 that:-

"A Letter of Request shall specify -

(a)       the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;

(b)       the names and addresses of the parties to the proceedings and their representatives, if any;

(c)       the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;

(d)       the evidence to be obtained or other judicial act to be performed;

......"

16.      The Rules of this Court in relation to service of process abroad are regrettably limited.  The relevant Rules appear in Rules 2 and 3 of the Service of Process (Jersey) Rules 1994.  The Rules are outdated as has been commented upon by this Court on a number of occasions and they will shortly be reviewed.  That they are outdated is plain from Rule 2 which refers to transmission to the Royal Court of a Letter of Request by Her Majesty's Secretary of State for the Home Department - and we can note that the Home Office has not had any liaison responsibility for Jersey since approximately 2001.  In Wadman and Another v Dick [1993] JLR 52 the Court of Appeal was considering an appeal against the Royal Courts refusal to set aside the Deputy Judicial Greffier's order agreeing to give assistance to the District Court of Denver which was seeking the examination of witnesses in Jersey.  It is apparent from the identification of the parties to the proceedings that the Denver Court itself was not an applicant or respondent.  The Court of Appeal noted that the Royal Court's power to give effect to an application for assistance was contained in Article 4 of the 1960 Law and at pages 69/70, one sees the following passage:-

"Relevance

The power of the Royal Court under these substituted Arts. 3 and 4 of the Law of 1960, introduced by the Law of 1985, is power to obtain 'evidence for the purposes of civil proceedings'.  This obviously means evidence relevant to the issues in the civil proceedings.  In the present case this requirement has been made explicit by the words added by the Royal Court to the order of the Deputy Judicial Greffier requiring the witnesses to give evidence 'in so far as the evidence is relevant under the Law of Colorado to the subject matter of the case."

The first question to be considered, therefore, is whether the Letters of Request ask for evidence relevant to the issues in the proceedings in Denver.  In order to answer this, it is necessary to identify those issues....."

17.      As was said in AD v The C Trust and PW [2010] JRC 001, it is clear from the authority of Wadman v Dick that the Court should review Jersey Law in order to decide whether to give effect to the Letters of Request that have been sent to us, and our Law requires that we give assistance except where it is not proper or permissible or practicable to give effect to the request in question.  As a matter of principle, the Court approaches these matters by wanting to give assistance if it possibly can, but to do so, the application must fall within our own law.

18.      In J v K [2016] JRC 110, the Court was faced with an appeal against the Greffier's order giving assistance to the requesting court in circumstances where the appellant contended that the Greffier had no jurisdiction to make such an order.  In that case the plaintiff and her husband were in the course of divorce proceedings in the circuit court of the county of St Louis, Missouri.  Her Missouri attorneys sent a Letter of Request directly to the Law Officers' Department who transmitted it to the Judicial Greffe in January 2016 and as a consequence, the Greffier made an order under the 1960 Law.  The objection was taken that the Letter of Request had not been transmitted through the Secretary of State for the Home Department.  In fact the issuing court had addressed the Letter of Request to 'The United Kingdom - Jersey', and it was to be sent to the Central Authority of the United Kingdom, the Senior Master, for the attention of the Foreign Process Section, Room E16, Royal Courts of Justice, Strand, London.  That process seemed to the Court in J v K to be consistent with Article 3 of the Hague Convention.  The Royal Court noted that the Rules in question made in 1994 were procedural rather than substantive insofar as there was a reference to the Home Office, and concluded that the fact that the procedure envisaged under the Law and the Rules had not been precisely followed should not prevent the matter being taken forward.  The procedure adopted by transmitting the request of the St Louis court directly to the Royal Court was unsatisfactory but it did not deprive the Court of jurisdiction to deal with it, and reliance was placed on the proposition that procedural Rules are the Court's servant and not its master.

19.      We think it is relevant at this stage to refer to the Letter of Request itself.  It does not appear to be dated, although the translation has a certification of accuracy dated 2^nd December, 2015.  There is no identification of the parties to the proceedings in the requesting court.  The opening language, as translated, is in these terms:-

"Mykolayiv District Administrative Court herewith requests the competent authorities of Jersey to carry out some procedural actions, specifically: to request from 'Rusal Trading International Limited' ("RTI Limited") (Ogier House, the Esplanade, St Helier, Jersey, JE4 9WG and forward to the Court [the information summarised earlier].

The information and evidences mentioned herein are required in connection with consideration by the Mykolayiv District Administrative Court of case number 814/1439/15 at the suit of 'Mykolayiv Alumina Plant' Limited Liability Company to the Mykolayiv Customs Office of the State Fiscal Service of the Ukraine for invalidation and vacating of tax demand notice no. 27 of May 21^st 2013..."

20.      It would appear that the parties before the Third Respondent are the First and Second Respondents.  However neither of them have shown any interest in appearing in this Court to ask for the evidence in question.  This Court has no way of telling whether the information which is requested has or has not any relevance for the purposes of the case in the Mykolayiv District Administrative Court, which appears to be about invalidation and vacating of a tax demand notice issued in May 2013.

21.      In J v K, there was a procedural point taken which had no merit when one considered the substance of the request.  By contrast in the present case, there is a lack of clarity as to the process by which the Letter of Request originated in the Ukraine; there is a lack of any supporting evidence filed with the Letter of Request or in answer to the objections filed in the amended Summons on Appeal; there has been a total non-engagement of the Respondents in this appeal.

22.      This Court has no clarity as to what the tax demand notice is about.  We have not seen it. 

23.      We accept the submissions of Advocate Sanders that whereas in J v K the Royal Court was able to consider a detailed Letter of Request from which it could derive a clear understanding of the underlying proceedings and the relevance of the information sought, and it had the benefit at the appeal hearing of submissions from all interested parties through Jersey Advocates, the instant case is quite different and it is simply not possible to say whether the Letter of Request can be complied with legitimately on the application of our law.

24.      To the extent that it might have been suggested that in the interests of comity, the Royal Court should have simply given assistance, we think it is right to refer to Montrow v Tacon [2007] JCA 144 where the Court of Appeal was considering the role of comity in a request for assistance in the context of the application for recognition of a BVI provisional liquidator.  The Court of Appeal said at paragraph 32:-

"To the extent that practitioners in this jurisdiction are concerned with the kind of factors which may ordinarily be taken into account in the exercise of such discretion they will find assistance analogically in the decision of the English Court of Appeal in Hughes and Hanover [1997] 1BCLC 497 relating to section 426 of the English Insolvency Act and in particular in the judgment of Lord Justice Morritt at pages 518 and 521,

"in some cases the assistance sought is, in accordance with the system of law under which it is available, discretionary.  Obviously the fact of the request for assistance is a weighty factor to be taken into account.  Further the Court of England may be expected to accept without further investigation the views of the requesting court as to what was required for the proper conduct of the bankruptcy or winding up.  But I do not think that the request can ever be conclusive as to the manner in which the discretion of the court should be exercised.  It would be incompatible with the principle of the law which was being applied that the decision was one for the discretion of the court if the fact of the request was anything more than a factor however weighty [518].

In considering whether and if so how this court should exercise the jurisdiction to restrain proceedings abroad it is also necessary to consider matters occurring since the Letter of Request was signed.  Normally it would not be appropriate for the Court in England to enquire into the basis for the views expressed by the court of the country making the request.  But there is no reason of comity or justice to prevent it from considering subsequent events [521]."

25.      We accept the submission that Montrow is authority for the proposition that a Letter of Request should not be considered in a vacuum.  It is not contrary to the principles of comity for the Royal Court to uphold an appeal in circumstances where there is an absence of any supporting evidence or information justifying giving assistance to the Letter of Request.

26.      This is an approach which is particularly legitimated by such evidence as we have.  In his second affidavit, Mr Roman Khaev, a Director of RTI Limited, the Representor, says:-

"RTI also has serious concerns as to the approach adopted by the Mykolayiv District Administrative Court in the appeal and in particular the lack of any obvious process initiated by any party to the Mykolayiv proceedings to justify the need for acquiring such onerous and vague disclosure from RTI."

27.      At paragraph 16 of his second affidavit he says this:-

"I have had no formal correspondence with MAP [the Second Respondent] in relation to either the Jersey or Ukraine proceedings.  Nevertheless, given the common interest of RTI and MAP as companies in the Rusal Group, my colleagues have spoken on the telephone to in-house lawyers at MAP in January 2017, May 2017 and November 2017 to better understand the circumstances of the Letter of Request and the Ukraine proceedings.  What I have essentially learned is that it appears that the Letter of Request was sent by the Mykolayiv District Administrative Court of its own motion and without any application having been made and therefore no party has been involved in the process or taken any action in relation to it.

We also note that we have no evidence before us as to the extent to which information which is provided to the Third Respondent is subject to any implied undertakings as to confidentiality, but it would appear to be the case that if the Letters of Request were issued not on the request of any party but at the instigation of the requesting court itself, there are no confidentiality undertakings attached to provision of the information in question."

28.      Advocate Sanders raised in his submissions a number of other points including the question as to whether this was an inappropriate means of seeking tax information given the fact that both Jersey and the Ukraine are signatories (in Jersey's case through the United Kingdom) to the Convention on Mutual Administrative Assistance in Tax Matters 1988 (amended by protocol in 2010).  In the light of our conclusion in relation to the lack of assessment as to whether the information sought is relevant to the civil proceedings taking place in the Ukraine, it is not necessary for us to consider these points any further.

29.      We are conscious of the possibility of exercising a blue pencil approach as contemplated in Westinghouse (Rio Tinto Zinc Corp v Westinghouse Elec Corp [1978] 1All ER 434).  In our judgment it is not possible to contemplate a blue pencil exercise here because the Letter of Request does not set out sufficient information regarding the documents and information which is sought.  The Respondents have declined to provide affidavit evidence which would clarify the relevance of the requests to the proceedings which are taking place in the Ukraine.  In those circumstances a blue pencil exercise is not practicable.

30.      The Appellant's amended summons seeks in the alternative orders that the Act of Court be set aside or varied on grounds that the requests are overly general, vague and / or lack specificity and constitute a fishing exercise.  It is not necessary to go into any detail in relation to those objections because the appeal is allowed on different grounds as set out above.

31.      For these reasons the appeal has been allowed and the order of the Judicial Greffier giving effect to the Letters of Request set aside.

Authorities

Service of Process and Taking of Evidence (Jersey) Law 1960. 

J v K and Others [2016] JRC 110. 

Rules of the Supreme Court 1999. 

Service of Process (Jersey) Rules 1994. 

Wadman and Another v Dick [1993] JLR 52. 

AD v The C Trust and PW [2010] JRC 001. 

Montrow v Tacon [2007] JCA 144. 

Convention on Mutual Administrative Assistance in Tax Matters 1988. 

Rio Tinto Zinc Corp v Westinghouse Elec Corp [1978] 1All ER 434.