In this case the court considered the issue of taking evidence from a witness in another jurisdiction pursuant to CPR 34.13.
The claimant was an insurer in the Philippines acting on behalf of a local company. The risks written by the insurer were reinsured in the London market through the defendant broker. The claimant’s case was that in breach of duty the defendant had disclosed confidential information relating to the cost of the reinsurance to its client, which revealed to the client that there was a substantial difference in the cost of the reinsurance to the claimant and what it was charging its client. The client then terminated its relationship with the claimant and engaged the defendant as its broker. The claimant claimed that it had lost its relationship with the client worth US$2.25 million per year as a result of the defendant’s breach of confidentiality.
The court was asked by the defendant to issue letters of request to three witnesses in the Philippines, who were senior employees of the client and could comment on the decision to replace the claimant and whether this was as a result of the disclosure of confidential material by the defendant.
The claimant opposed this, arguing that taking evidence in the Philippines would be disproportionately costly and would disrupt the trial timetable. It had been estimated that the cost of the case would be £800,000 for each side and the cost of taking evidence in the Philippines would be approximately £100,00 for each side.
The court considered that it was clear that the evidence could be relevant to issues of causation and quantum, in particular in relation to whether the defendant had acted in breach of duty in disclosing confidential information and whether this was the reason that the claimant had lost its lucrative client relationship. The court was therefore predisposed to allow the parties to obtain evidence which would assist it in reaching its judgment. On costs, the court did not consider that taking evidence in the Philippines would be disproportionately expensive given the existing costs budget. On timing, the defendant had given an undertaking that it would not disrupt the trial timetable and the court saw no reason why the evidence could not be taken in good time. Accordingly, the application was granted.
This case demonstrates how CPR 34.13 can be used to gather evidence from individuals overseas who are unwilling or unable to attend the trial. It also shows that in circumstances where the cost and time issues are not disproportionate, the court is minded to assist the parties in the collection of evidence to ensure it has the benefit of the best possible evidence prior to reaching judgment.