There were taxation proceedings in Norway. One question was whether the Norwegian taxpayer controlled a trust which owned some shares. Letters rogatory issued by the Norwegian Court requested the oral examination of two witnesses in the United Kingdom. Each was a person with a relationship to the trust or to the company that justified the expectation that he could give relevant evidence on the issue in question.
Held: The request amounted to an impermissible fishing expedition and should not be accepted.
On the fishing point, Kerr LJ said:- ‘although ‘fishing’ has become a term of art for the purposes of many of our procedural rules dealing with applications for particulars of pleadings, interrogatories and discovery, illustrations of the concept are more easily recognised than defined. It arises in cases where what is sought is not evidence as such, but information which may lead to a line of inquiry which would disclose evidence. It is the search for material in the hope of being able to raise allegations of fact, as opposed to the elicitation of evidence to support allegations of fact, which have been raised bona fide with adequate particularisation. In the present context fishing may occur in two ways. First, the ‘evidence may be sought for a preliminary purpose, such as the process of pre-trial discovery in the United States.’ This is impermissible for the 1975 Act. A ‘fishing expedition ‘ ‘is perhaps best described as a roving inquiry, by means of the examination and cross-examination of witnesses, which is not designed to establish by means of their evidence allegations of fact which have been raised bona fide with adequate particulars, but to obtain information which may lead to obtaining evidence in general support of a party’s case’ The application was dismissed (Ralph Gibson dissenting)
Kerr LJ, Glidewell LJ, Ralph Gibson LJ
[1987] 1 QB 433
Evidence (Proceedings in Other Jurisdictions) Act 1975
England and Wales
Citing:
Cited – In re Westinghouse Uranium Contract HL 1978
‘The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested’ Lord Fraser said: ‘in judging the nature of the letters rogatory . .
Cited – Radio Corporation of America v Ranland Corporation 1956
The 1856 Act cannot be used to allow a fishing expedition for evidence. The court distinguished between ‘a process by way of discovery and testimony for that purpose’ and ‘testimony for the trial itself’. . .
Cited – Senior v Holdsworth 1976
A subpoena requiring the production of documents had been served.
Held: A witness ought not to be required to comply with a letter of request if it appeared to the court ‘that the request is irrelevant, or fishing, or speculative, or . .
Cited by:
Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Appeal from – In re Norway’s Applications HL 1990
The house considered appeals from the two earlier applications, upholding the first and reversing the second. . .
Appeal from – In re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
See Also – Re State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .
These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.188695 br>