Scottish Court of Session Decisions

The Foreign Tribunals Evidence Act 1856 (19 and 20 Vict. c. 113), sec. 1, enacts—“Where, upon an application for this purpose, it is made to appear to any court or judge having authority under this Act that any court or tribunal of competent jurisdiction in a foreign country, before which any civil or commercial matter is pending, is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction of such first-mentioned court, or of the court to which such judge belongs, or of such judge, it shall be lawful for such court or judge to order the examination upon oath, upon interrogatories or otherwise, before any person or persons named in such order, of such witness or witnesses accordingly.…”

Section 2—“A certificate under the hand of the ambassador, minister, or other diplomatic agent of any foreign power, received as such by Her Majesty … that any matter in relation to which an application is made under this Act is a civil or commercial matter pending before a court or tribunal in the country of which he is the diplomatic agent … and that such court or tribunal is desirous of obtaining the testimony of the witness or witnesses to whom the application relates, shall be evidence of the matters so certified.…”

By the 6th section the Court of Session is declared to be a Court having authority under the Act.

On 27th November 1907 the Right Honourable Thomas Shaw, His Majesty's Advocate, presented a petition to the First Division for an order for the examination of certain witnesses under the Foreign Tribunals Evidence Act, 1856, in which he set forth, inter alia—“That upon 14th October 1908 a note was addressed by the Belgian Minister to the Right Honourable Sir Edward Grey, Bart., M.P., His Majesty's Secretary of State for Foreign Affairs, enclosing a letter of request issued by the

Page: 160↓

Commercial Tribunal of Ostend, desiring that certain evidence be taken at Aberdeen in connection with the civil case of Jules Forbes, fish merchant at Aberdeen, against J. Baels-Mauriex, fish merchant, Ostend: That the names and addresses of the witnesses desired to be examined are as follows:—Mr. W.H. Dodds, fish merchant, Aberdeen; Mr Robert Murchie, fish merchant, Aberdeen; Mr James Forbes, fish merchant, Aberdeen; Mr D. Crombie, of the Aberdeen Fish Manure and Oil Company, Limited, at Aberdeen: That in these circumstances it appears to the petitioner to be proper that he should make this application to your Lordships to obtain the examination of the said witnesses as desired by the Commercial Tribunal of Ostend and Belgian Minister on their behalf, and the petitioner respectfully suggests that, in view of the nature of the case, as disclosed in the said letter of request, your Lordships should appoint the Sherilf of Aberdeen, or his Substitute, as the person before whom the said witnesses shall be examined.”

The prayer of the petition was in these terms:—“May it therefore please your Lordships to order the examination of the said W. H. Dodds, Robert Murchie, James Forbes, and D. Crombie, under the said letter of request and translation thereof, upon oath, before the Sheriff of Aberdeen or his Substitute, and to command the attendance of the said … at such laces and times as the said Sheriff or his Substitute may fix, upon giving the said witnesses forty-eight hours’ previous notice of the day and hour fixed, to give evidence in relation to said civil cause of ‘Jules Forbes against J. Baels-Mauriex,’ and also to bring with them, exhibit, and produce before the said Sheriff or his Substitute, upon oath, all such writings and documents as they may have in their hands, custody, or keeping, which they may be required so to exhibit and produce in evidence of any of the matters at issue, and to declare where and in whose hands, custody, or keeping all or any of such writings and documents are or may be: And to grant warrant to messengers-at-arms and other legal executors of your Lordships’ warrants, and to sheriff-officers, to cite the said … to attend at the said places and times for the purposes of the said examination: And to appoint that the depositions of the said … so taken shall be transmitted to the Crown agent that the same may be conveyed through the proper channels to the Belgian Minister: And to do further or otherwise in the premises as to your Lordships shall seem proper.”

As evidence of the fact ( a) that the question in regard to which the application was made was a civil matter pending before a foreign tribunal, and ( b) that the evidence was required, there were produced (1) the said letter of request, and (2) a letter from the Under Secretary of State for Foreign Affairs to the Under Secretary for Scotland.

Argued for petitioners—The Court had jurisdiction under the Act to make the appointment craved, for the Act was general in its terms, and evidence was produced in terms of section 2. The appointment of the Sheriff or Sheriff-Substitute as commissioner lay entirely in the Court's discretion—the suggestion that he should be appointed being made in order to save a foreign Government trouble and expense, and as a matter of international comity. Prior to the case of De Bildt, July 4, 1905, 7 F. 899, 42 S.L.R. 690, it had been usual to appoint the Sheriff-Substitute— Blair, July 14, 1883, 10 R. 1223, 20 S.L.R. 810; Reid, May 23, 1890, 17 R. 790. The case of De Bildt was not in point, for the application in that case was by a private individual, whereas this was at the instance of the Lord Advocate as representing His Majesty's Government. In England it was usual to appoint the registrar.