U.Dori Construction Ltd v Greaney
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 07 July 2017 |
| Neutral Citation | [2017] IEHC 444 |
| Date | 07 July 2017 |
| Court | High Court |
| Docket Number | [2017 No. 49 I.A.] (Civil Action 20431-09-13) (Civil Case 4890-05-14) |
[2017] IEHC 444
THE HIGH COURT
Eagar J.
[2017 No. 49 I.A.]
(Civil Action 20431-09-13)
(Civil Case 4890-05-14)
AND IN THE MATTER OF TWO SETS OF CIVIL PROCEEDINGS NOW PENDING BEFORE THE TEL AVIV JAFFA DISTRICT COURT, ISRAEL, ENTITLED AS FOLLOWS:
Practice & Procedures – Foreign Tribunals Evidence Act 1856 – Evidence in relation to commencement of proceedings in foreign court – 1998 International Legal Assistance Law – Relevance and admissibility of proposed evidence – O.38, r. 39 of the Rules of the Superior Courts
Facts: The respondent sought an order for setting aside the High Court order made on an ex-parte application filed by the applicant to the effect that the respondent would be examined under oath pursuant to Foreign Tribunals Evidence Act 1856. The respondent contended that if he would give evidence in Ireland in relation to foreign court (‘Israel’) proceedings prior to the resolution of arbitration proceedings that were ongoing in another jurisdiction (‘London’), the respondent would be greatly prejudiced. The respondent further alleged that the applicant had not filed any letter rogatory from Israeli Courts asking for Irish Courts' assistance under the 1998 International Legal Assistance Law.
Mr. Justice Eagar set aside the High Court order. The Court held that there was no document showing that the Israeli Courts had sought legal assistance from the Irish Courts for the purpose of seeking cross-examination of the respondent in that jurisdiction. The Court found that the respondent was a key witness in the London arbitration proceedings and compelling him to give evidence prior to the conclusion of those proceedings would be oppressive for the respondent. The Court noted that the institution of an ex-parte application by the applicant for seeking the Court's intervention to direct cross-examination of the respondent was contrary to the Act of 1856 as it was the foreign court that could make such an application. The Court held that it would endeavour to give assistance whenever asked at the request from the foreign courts.
In this case the respondent applies to set aside and/or vary an order made by Humphreys J. on the 15th of May, 2017 (the Order). The Order was made upon the ex parte application of the intended applicant U. Dori Construction Ltd. (the applicant) and directs that Mr. Greaney be examined under oath pursuant to the Foreign Tribunals Evidence Act 1856 (the FTE Act) and/or O. 38, r. 39 of the Rules of the Superior Courts and/or the inherent jurisdiction of the High Court. The ex parte application was grounded on the affidavit of Rahn Cohen Nissan sworn on the 11th of May, 2017 (the Nissan affidavit) and a booklet of exhibits attached thereto (referred to as the Nissan Book).
The order was made in respect of two sets of civil proceedings in Israel, between the applicant and two subcontractors, namely:-
(a) Netivim South Ltd. v. U. Dori Construction Ltd. (the Netivim proceedings); and
(b) T.M. Tal-Edem Ltd. v. U. Dori Construction Ltd. (the Tal-Edem proceedings).
Mr. Greaney is a director of G.T.S. Power Solutions Ltd. (G.T.S.) a subsidiary of Wood Group Gas Turbines Service Holdings Ltd. (Wood Group). The applicant and G.T.S./Wood are engaged in ongoing International Chamber of Commerce (ICC) Arbitration Proceedings (the ‘London Arbitration’) between inter alia G.T.S./Wood and the applicant. Both the London Arbitration and the Israeli proceedings arrived out of the development of a major power plant in Israel known as the Dorad Project.
The evidentiary hearing in the London Arbitration will take place in London from the 17th to the 28th of July, 2017. At that hearing, the respondent who has already provided three witness statements totalling 216 pages and references approximately 248 documents, will provide testimony and will be G.T.S.'s primary witness.
Counsel for the applicant indicated that they require the respondent to give evidence in Ireland in connection with the Israeli proceedings, prior to the London Arbitration hearing. Counsel on behalf of the respondent (Declan McGrath S.C.) states that ‘requiring the respondent to give evidence in Ireland in connection with the Israeli proceedings immediately prior to the London Arbitration would be oppressive and impractical and would in fact entitle the applicant to a ‘dry run’ cross-examination of the respondent in advance of the hearing’.
The respondent's application to set aside the order is grounded on the affidavit of Michael Byrne sworn on the 22nd of May, 2017 (the Byrne affidavit), the verifying affidavit was sworn by Ankita Ritwik and Helen Raziela on the 24th of May, 2017, the supplemental affidavit of Michael Byrne was sworn on the 15th of June, 2017, the affidavit of Ankita Ritwik was sworn on the 16th of June, 2017 as well as the affidavit of James Greaney and the affidavit of Helen Raziela. I will summarise now the difficulties surrounding both the ex parte application and the subsequent order.
(1) The order was made without any letter rogatory or letter of request from the competent Israeli authority.
(2) The order is clearly oppressive in the light of the central role of the respondent in the imminent hearings in the London Arbitration, involving the applicant and the respondent/G.T.S.
(3) The order is silent as to the scope and subject matter of the examinations of the respondent, and the procedural and evidentiary roles to be followed in the course of the examination of the respondent.
(4) The within proceedings were commenced against the respondent personally and inexplicitly a costs order was made against the respondent personally.
(5) Material matters were not disclosed to the court in the ex parte application.
Section 1 of the FTE Act provides as follows:-
‘(1) Where, upon an Application for this Purpose, it is made to appear to any Court or Judge having Authority under this Act that any Court or Tribunal of competent Jurisdiction in a Foreign Country, before which any Civil or Commercial Matter is pending, is desirous of obtaining the Testimony in relation to such Matter of any Witness or Witnesses within the Jurisdiction of such first-mentioned Court, or of the Court to which such Judge belongs, or of such Judge, it shall be lawful for such Court or Judge to order the Examination upon Oath, upon Interrogatories or otherwise, before any Person or Persons named in such Order, of such Witness or Witnesses accordingly; and it shall be lawful for the said Court or Judge, by the same Order, or for such Court or Judge or any other Judge having Authority under this Act, by any subsequent Order, to command the Attendance of any Person to be named in such Order, for the Purpose of being examined, or the Production of any Writings or other Documents to be mentioned in such Order, and to give all such Directions as to the Time, Place, and Manner of such Examination, and all other Matters connected therewith, as may appear reasonable and just; and any such Order may be enforced in like Manner as an Order made by such Court or Judge in a Cause depending in such Court or before such Judge.’
Part V of O. 39 of the Rules of the Superior Court in 1986 deals with the obtaining of evidence for Foreign Tribunals and r. 39 invoked by the applicant herein provides as follows:-
‘ V. Obtaining evidence for foreign tribunals
39. Where under the Foreign Tribunals Evidence Act, 1856, or the Extradition Act, 1870, section 24, any civil or commercial matter, or any criminal matter, is pending before a court or tribunal of a foreign country, and it is made to appear to the court, by commission rogatoire, or letter of request or other evidence as hereinafter provided, that such court or tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court may, on the ex parte application of any person shown to be duly authorised to make the application on behalf of such foreign court or tribunal, and on production of the commission rogatoire, or letter of request, or other evidence pursuant to the Foreign Tribunals Evidence Act, 1856, section 2, or such other evidence as the court may require, make such order or orders as may be necessary to give effect to the intention of the Acts above mentioned in conformity with the Foreign Tribunals Evidence Act, 1856, section 1.’
The jurisdiction to set aside an ex parte order is contained in O. 52, r. 3 which provides that:-
‘In any case the court, if satisfied that the delay caused by proceeding by motion on notice under this Order would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise and subject to such undertaking, if any, as the court may think just; and any party affected by such order may move to set it aside.’
Counsel on behalf of the respondent cited a number of authorities, the most recent of which was Cutler v. Azur Pharma International [2015] 1 I.R. 167. In that case Noonan J. summarised the applicable principles as follows:-
‘(a) The starting point in such an application is that the court will use its best endeavours to give effect to a request for assistance from the courts of another jurisdiction (this Court's emphasis).
(b) While the enforcement of letters rogatory remains a matter of discretion, the default position is that they will be enforced absent some factor or factors which could convince the court to exercise its discretion otherwise.
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