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High Court Judge to Hear Evidence in Cuba

 

Peer International Corporation (A company incorporated in the State of New Jersey, USA) and Ors v. Termidor Music Publishers Ltd and Ors [2005] EWHC 1048 (Ch) 

This recent case raised the question of whether examinations of foreign witnesses can be conducted abroad by an English special examiner for use in English proceedings where one party has objected on the ground of jurisdiction. 

The Facts 

The Claimant, Peer International Corporation, brought proceedings in the High Court of Justice against Thermidor Music Publishers Ltd claiming ownership of copyrights in various musical compositions. 

Termidors Music then brought proceedings against a separate party (the Part 20 Defendant), Editora Musical De Cuba (“EMC”). EMC is a not-for-profit company formed under Cuban law and owned by the Cuban government. 

Both EMC and Peer International intended to call 10 to 12 witnesses living in Cuba to give written evidence, but neither side were willing to accept the truth of each other’s witness statements and wanted the witnesses to give evidence orally so that they would be available for cross-examination. 

The Court used video-link to receive evidence from the first few witnesses, but, due to technical difficulties and poor picture quality, the Court abandoned the use of the video link. 

The Issues 

As a result EMC’s Counsel requested that Mr Justice Lindsay take evidence from the Cuban witnesses in Cuba.  

Peer International opposed this request on grounds of jurisdiction. Further it said that if the Court found it had jurisdiction, the Court should not locate the hearing to Cuba because of the political relationship between the USA and Cuba. It suggested the Bahamas, the British Virgin Islands or the Cayman Islands as more suitable alternatives. 

The Decision 

Mr Justice Lindsay rejected Peer International’s jurisdictional arguments under s.71 of the Supreme Court Act 1981, stating that the taking of evidence would not necessarily constitute a sitting of the High Court even if the special examiner happens to be a High Court judge. The Judge went on to say that CPR 34.13(4) does not restrict the identity of the special examiner who may be appointed to take evidence under this section and so he could find no reason why he could not appoint himself as special examiner. 

Mr Justice Lindsay recognised EMC’s insufficient access to ‘hard’ currency and stated that the cost of bringing all the witnesses across to the UK or to one of the locations suggested by Peer International, accommodating them and flying them back to Cuba would not only be much greater than taking a smaller party to Cuba but would also threaten to hinder or stifle EMC’s case, or at least severely impair it, as it would find itself unable to afford further conduct of its case in the intended manner.  

As Cuba is not a “Regulation State” within the meaning of CPR 34.13(1)(b), EMC had two options available to obtain evidence from witnesses in Cuba for use in the English proceedings - EMC needed a Letter of Request to be issued by the English Court or it needed to obtain the permission of the Cuban government. 

In the circumstances of this case, a Letter of Request was deemed unnecessary by the Court as the examination would be conducted by a special examiner from England in Cuba and would not involve any Cuban judicial authority to make any arrangements or take any evidence. 

Mr Justice Lindsay ordered that the 10 to 12 witnesses be examined in Cuba and appointed himself as the special examiner on condition that EMC obtain written permission from the Cuban government. 

The decision of Lindsay J to sit as special examiner was not without precedent. In the case of United States of America v. Philip Morris, Loble Solicitors obtained an order for a High Court Judge to sit as examiner to take evidence for proceedings in the United States District Court for the District of Columbia.  

Mr Justice Lindsay’s decision shows that the formal procedure of issuing a Letter of Request may not be necessary where the government of a Non-Regulation State provides its consent to the English judge sitting as special examiner in the foreign country.