Novell Inc. v MCB Enterprises

• Jurisdiction: Ireland
• Judge: Mrs. Justice Susan Denham
• Judgment Date: 30 January 2001
• Neutral Citation: [2001] IESC 204
• Date: 30 January 2001
• Docket Number: [S.C. No. 277 of 1999]
• Court: Supreme Court

[2001] IESC 204

THE SUPREME COURT

Denham J.

Murray J.

Geoghegan J.

Record No. 277/1999

NOVELL INC v. MCB ENTERPRISES & ORS

IN THE MATTER OF A HIGH COURT APPLICATION

IN THE MATTER OF THE FOREIGN TRIBUNAL'S EVIDENCE ACT, 1856

IN THE MATTER OF AN APPLICATION BY THE UNITED STATES DISTRICT

COURT/ FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

IN THE MATTER OF PROCEEDINGS IN THE COURTS OF THE CENTRAL

DISTRICT OF UTAH

IN CONSOLIDATED CASES NO. 2: 29CV00200B

BETWEEN

NOVELL INC.

PLAINTIFF/RESPONDENT

and

MCB ENTERPRISES, ET AL.

DEFENDANTS

NOVELL INC.

PLAINTIFF/RESPONDENT

and

COMPUTER RECYCLERS, ET AL.

DEFENDANTS

AND IN THE MATTER OF ORDER 39 RULE 39 OF THE RULES OF THE

SUPERIOR COURTS

BETWEEN

SEAN RAINEY AND JACQUELINE RAINEY

APPELLANTS

and

NOVELL INC.

RESPONDENT

Citations:

FOREIGN TRIBUNALS EVIDENCE ACT 1856 S5

RSC O.39 r39

RAINEY V NOVELL INC UNREP SUPREME EX-TEMP 11.4.2000

RADIO CORPORATION OF AMERICA V ROWLAND CORPORATION 1956 1 AER 545

AIR CRASH IN THR FLORIDA EVERGLADES V VALUJET AIRLINES 1999 2 IR 468

CHOMUTOV SAVINGS BANK, IN RE 1957 IR 355

FOREIGN TRIBUNALS EVIDENCE ACT 1856 S1

FIRST AMERICAN V SHEIKH AL-NAHYAN 1998 4 AER 439

RIO TINTO ZINC CORPORATION V WESTINGHOUSE ELECTRIC CORPORATION 1978 AC 547

Synopsis

PRACTICE AND PROCEDURE

Tribunal

International law - Evidence - Examination on oath - Fair procedures - Comity of nations - Copyright - Allegations of fraud - Computer software - Discovery - Privilege against self-incrimination -Whether proposed examination oppressive - Rules of the Superior Courts, 1986 Order 39, rule 39 - Foreign Tribunals Evidence Act, 1856 (277/1999 - Supreme Court - 30/1/01) [2001] 1 IR 608 - [2002] 1 ILRM 350

Novell Inc v MCB Enterprises & Rainey

O'Sullivan J had ordered the appellants to appear for examination on oath before barrister pursuant to the Foreign Tribunals Evidence Act, 1856. The appellants sought to have the order of the High Court overturned. The appellants claimed that the request for examination was essentially a request for discovery and not "testimony" as set out under the Foreign Tribunals Evidence Act, 1856. Denham J, delivering judgment, held that in having regard to the constitutional guarantee of fair procedures the court must ensure that parties to litigation were allowed to bring their cases on an equal and fair footing. If the plaintiff/respondent was permitted to examine the appellants it would give them an advantage and potentially place the appellants in an invidious position with regard to preparing and advancing their own defence. In such circumstances it would be oppressive for the examination to proceed, the appeal would be allowed and the order of the High Court set aside.

1 Mrs. Justice Susan Denham on the 30th day of January, 2001.

1. Issue

2 This is an appeal by Sean Rainey and Jacqueline Rainey, hereinafter referred to as the appellants, against an order made by the High Court (O'Sullivan J.) on the 18th October, 1999, and the subsequent refusal to discharge the same order on the 30th November, 1999, for the examination on oath of the appellants before an examiner, Paul McGarry, Barrister-at-Law, pursuant to the Foreign Tribunal's Evidence Act, 1856, and Order 39 Rule 39 of the Rules of the Superior Courts. The appellants ask this court to exercise its discretion under the Foreign Tribunal's Evidence Act, 1856, and refuse the application that there be an examination of the appellants on oath or affirmation and production of documents for the benefit of court proceedings in Utah.

2. The High Court

3 On the 18th October, 1999, the High Court (O'Sullivan J.) ordered that P.J. Kennedy, Sean Rainey and Jacqueline Rainey attend before Paul McGarry, Barrister at Law, who was appointed examiner, and to submit to being examined on oath or affirmation touching the testimony so required and do then and there produce:

4 1) All documents that refer or relate to any IntranetWare for small Business or other Novell Inc software that AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey received from Modus Media International or any other person or company in 1997 such as invoices order forms purchase order packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth.

5 2) All documents that refer or relate to any IntranetWare for Small Business or other Novell Inc software that AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey sent to MBC Enterprises LLC and/or James Craghead in 1997 1998 or 1999 such as invoices order forms purchase order packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

6 3) All documents that refer or relate to any IntranetWare for Small Business or other Novell Inc Software that MBC Enterprises LLC and/or James Craghead returned to AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey in 1997 1998 or 1999 such as invoices order forms purchase orders packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

7 4) All documents that refer to any IntranetWare for Small Business or other Novell Inc. Software that AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey sent to Computer Commodity Inc. And/or Michael Jacobson in 1997 1998 or 1999 such as invoices order forms purchase orders packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

8 5) All documents that refer or relate to any IntranetWare for Small Business or other Novell Inc. Software that Computer Commodity Inc. And/or Michael Jacobson returned to AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey in 1997 1998 or 1999 such invoices order forms purchase orders packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

9 6) All documents including but not limited to letters facsimiles e-mail and other correspondence whether electronic or written both draft and final versions between AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey and MBC Enterprises LLC James Craghead Computer Commodity Inc. And/or Michael Jacobson in 1997 1998 or 1999 that refer or relate to any IntranetWare for Small Business or other Novell Inc software

10 7) All copies of IntranetWare for Small Business or other Novell Inc. Software that MBC Enterprises LLC James Craghead Computer Commodity Inc and/or Michael Jacobson returned to AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey."

11 The High Court ordered that the examiner take down in writing the evidence of the said witnesses and when completed transmit same to the Master of the High Court for transmission to the President of the Tribunal desiring the evidence of such witnesses.

3. Appeal

12 Against that order the appellants have appealed to this court on the grounds that:

13 1. The learned High Court Judge erred in law and failed to give any or any sufficient weight to the submission on behalf of the appellants that the affidavit upon which the order was granted was not a full and frank affidavit and did not disclose to the court matters which were material to the applicant, in particular that there were proceedings in Ireland between the plaintiff and the appellants arising from the same matters which were the subject of the said proceedings in Utah; that there was a criminal investigation taking place in Ireland arising from matters common to the Irish and Utah proceedings;

14 2. That having regard to the foregoing the plaintiff was manœvring itself into a position whereby it could cross-examine the appellants before the Irish proceedings came on for plenary hearing and thereby circumvent the normal procedure in a common law jurisdiction and the appellants' right to fair procedures under the Constitution that the defendants can elect to testify or not to testify in the course of proceedings and if that they do elect to testify that the normal procedure would be that they give their evidence direct before cross-examination.

4. Stay

15 On the 7th December, 1999, this court ordered that the order of the High Court dated the 18th October, 1999, insofar as it relates to the appellants be stayed until after the determination of the appeal. The court noted the undertaking of counsel on behalf of the appellants to expedite the lodgement in the Office of the Registrar of all relevant books of appeal and that the appeal be listed for mention before this court on the 14th January, 2000.

5. Amendment of Notice of Appeal

16 The appellants then brought a motion to the Supreme Court seeking to amend the appellants' notice of appeal by the addition of a number of grounds. In an ex tempore judgment on the 11th day of April, 2000, the Supreme Court, Murphy J., with whom the other members concurred, held:

17 "This is an application in the first instance by the Appellants for liberty to amend the notice of appeal served by them herein. Effectively, it might be said that the original notice of appeal sought to make the case that the learned trial Judge, Mr. Justice O'Sullivan, in making the order which he did under the Foreign Tribunals Evidence Act, 1856, had erred in the exercise of his discretion. Now it is sought to make the case that he had no jurisdiction to make the order. Whilst this may seem a radical amendment that is not quite the case and indeed the need for the amendment is explained by the circumstances which have evolved since the hearing before Mr. Justice O'Sullivan.

18 Effectively at issue is the nature of the process which it was intended to conduct in this jurisdiction pursuant to the letter of request...