The defendants to US proceedings have also brought proceedings in England alleging fraud against a Mr Hussain (and others). Mr Hussain is not a party to the US proceedings. The defendants sought and obtained from the US courts a letter of request to examine Mr Hussain in England, in order to obtain evidence for the purposes of the US proceedings. However, the Senior Master refused the defendants' application to give effect to the letter of request, on the basis that such an examination would be oppressive (since he was also a defendant in English proceedings). She also found that he would not be able to achieve a fair trial in England (thus breaching his ECHR right to a fair trial), but dismissed an argument that an examination would be pointless because Mr Hussain could rely on his privilege against self-incrimination under the US Fifth Amendment. The defendants appealed and Morris J has now held as follows:
(1) It has been established that, where fraud is alleged, a letter of request is oppressive where allegations of fraud have been made against the witness but the witness has not been sued in respect of those allegations. However, the same is not true where a civil action for fraud has been commenced: "Where the applicant has already commenced proceedings against the witness making allegations of fraud, then the mere fact that such fraud allegations have been made does not render the letter of request as oppressive. Whether it is oppressive or not will depend upon the particular evidence sought in the context of the particular allegations pleaded against the witness".
(2) On the facts of the case, (including the view that the allegations of fraud had not been sufficiently particularised), it was concluded that the Senior Master had been entitled to conclude that an examination of Mr Hussain would be oppressive. However, the Senior Master had erred in concluding that the availability of the Fifth Amendment would not neutralise any possible oppression in relation to the use of incriminating evidence in civil proceedings: "if and in so far as the examination of Mr Hussain pursuant to the Letter of Request would be otherwise oppressive, his ability to rely upon the Fifth Amendment privilege will prevent any such oppression arising".
(3) The Senior Master was correct, though, that the mere assertion by Mr Hussain that he will invoke the Fifth Amendment was not sufficient to render the examination pointless, since it could not be ruled out that Mr Hussain will answer at least some of the questions put to him, notwithstanding his assertion that he would not.
(4) The examination of Mr Hussain did not breach his rights to a fair trial. He could rely on the Fifth Amendment to protect himself against any unfairness and "the overall fairness of the Chancery proceedings as a whole is a matter for the trial judge in those proceedings to monitor and control. It is not for this court to rule specifically on the unfairness of those proceedings and at this stage".
Accordingly, the appeal was allowed and the court's discretion was exercised to make an order for examination of the witness.