High Court rejects Letters Rogatory challenge
Lawyers at William Fry have highlighted a recent High Court decision to refuse to set aside an ex parte order giving effect to a request for assistance from a court in the US.
The formal request, known as Letters Rogatory, came from the US District Court for the Southern District of Florida and was linked to proceedings that arose from the sale of the World Marathon Challenge (WMC) to a company called Runbuk.
The applicant, Ice Cap Adventures, applied to the High Court to set aside the order because of alleged material non-disclosure by the plaintiff (Runbuk) in obtaining the order, and on the ground that the request was oppressive, overly broad, and tantamount to an impermissible request for discovery.
Alleged non-disclosure
In a note on the firm’s website, William Fry partners Laura Scott and Colette Brady, and associate Daniel Gannon say that the alleged non-disclosure concerned two matters:
- The existence of separate proceedings in California involving the same parties, and
- A stay imposed in the Florida proceedings.
While the court began by reiterating that full and frank disclosure in ex parte applications was “non-negotiable”, it also noted that there was no automatic rule requiring ex parte relief to be discharged where a material fact had not been disclosed.
Rather, the court must consider a range of factors – including the significance of the omitted information, whether the omission was deliberate or otherwise culpable, and the justice of the case as a whole.
Mr Justice Barry O’Donnell found that the California proceedings should have been disclosed, but added that it was satisfied that the omission was not motivated by bad faith or an intention to mislead.
Overall merit of application
The court described the non-disclosure of the stay on the Florida proceedings as “more serious” issue.
Nevertheless, it concluded that the justice of the case did not require the order to be set aside on that basis for a number of reasons – including that the court was in a position to form a view on the overall merit of the application and, in the interim, that the Florida court lifted the stay.
The applicant argued that the lines of enquiry detailed in the Letters Rogatory were, in substance, a request for discovery rather than for evidence, and that the request was oppressive, given its overlap with, and potential impact on, the California proceedings.
The court rejected those arguments, describing the applicant as “a critical witness given his history with the WMC”, adding that there was a legitimate basis to seek his evidence in the Florida proceedings.
Procedural and practical issues
“The judgment is a reminder that full and frank disclosure remains a fundamental requirement in ex parte applications, such as those to give effect to Letters Rogatory,” the William Fry lawyers write.
They add, however, that the decision also illustrates that a failure to disclose material facts will not invariably result in relief being discharged.
“Although the decision turns on its own facts, it demonstrates the range of procedural and practical issues that can arise when seeking evidence from a witness in Ireland for use in foreign proceedings.
“In this case, the evidence sought formed part of a wider dispute concerning the sale of a business and associated intellectual-property rights, highlighting the significance that witness testimony may assume in cross-border commercial and intellectual-property litigation,” the lawyers conclude.