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Published online by Cambridge University Press: 27 February 2017
A Norwegian court issued two letters of request under the Hague Evidence Convention asking for the assistance of the English High Court in compelling testimony from two witnesses residing in England in connection with proceedings in Norway to collect taxes assessed against the estate of a wealthy Norwegian shipowner. After extensive litigation, Norway and the estate appealed to the House of Lords from a decision by the Court of Appeal that English courts lacked jurisdiction to accede to the requests because the Norwegian proceedings involved fiscal matters not within the meaning of “civil or commercial matters” as used in section 9(1) of the Evidence (Proceedings in Other Jurisdictions) Act of 1975 (ch. 34), which was enacted to implement the Hague Evidence Convention. The witnesses sought to uphold the Court of Appeal’s decision on lack of jurisdiction; they argued in the alternative that, even if there were jurisdiction, the letters of request should be denied execution because they constituted either an impermissible fishing expedition or “tax gathering” inconsistent with the decision in Government of India v. Taylor, or because execution would compel the witnesses to breach their duty of confidentiality as bankers. The House of Lords decided each of these issues in favor of Norway and the estate, and affirmed (i.e., “did not disturb”) the order obtained by Norway to compel testimony.
1 Hague Convention relating to the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 UST 2555, TIAS No. 7444, 847 UNTS 231.
2 In the first set of proceedings (Norway 1), Norway’s letter of request was granted subject to qualifications. The Court of Appeal reversed on the grounds that the request was so broad it constituted an impermissible fishing expedition and that the order compelling testimony would require the witnesses to breach their duty of confidentiality as bankers. However, the Court of Appeal rejected the contention of the witnesses that English courts lacked jurisdiction to entertain the request because it concerned public, i.e. fiscal, matters not within the meaning of “civil or commercial matters” as used in the English Act and the Hague Evidence Convention. 1987 Q.B. 433. Norway, joined by the estate, then obtained a second letter of request for testimony from the same witnesses, but limited to 12 specific issues and setting out the questions to be put to the witnesses. In the second set of proceedings in the English courts (Norway 2), a second order compelling testimony was issued and upheld by the High Court subject to qualifications. However, the Court of Appeal allowed the witnesses’ appeal on grounds of lack of jurisdiction, [1988] 3 W.L.R. 603, as explained in the body of this note.
3 1955 App. Cas. 491.
4 2 W.L.R. 458, 464 (Norway 3).
5 Id. at 478.
6 Id. at 469–70.
7 Id. at 471–73.
8 Id. at 473–75.
9 Id. at 477. The House of Lords noted that in this case both the state and a private party had submitted letters of request for evidence. It stated that, if necessary, a court could accede to the application by the private party and yet reject that of the state. Id.
10 Id. at 477–78.
11 Id. at 479.
12 Id. at 480.
13 See Restatement (Third) of Foreign Relations Law of the United States §471 comment f and §473 comment c (1987); 1978 Digest of United States Practice in International Law 871.
14 See Report of the U.S. Delegation to the Special Commission on the Operation of the Convention of 18 March 1970 (June 1978), reprinted in 17 ILM 1417, 1418 (1979).
15 See Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., 1978 App. Cas. 547.