Letters Rogatory: Non-Disclosure Does Not Automatically Require Discharge of an Evidence Order

1. Introduction

This judgment concerns the Irish courts’ assistance in obtaining evidence for foreign civil proceedings. Its central contribution is a contextual application of the duty of full and frank disclosure: although important information was omitted when an evidence order was obtained without notice, discharge did not follow automatically. The court assessed the seriousness of the omissions, their practical consequences, and the justice of maintaining the order after a fully contested hearing.

The decision also reinforces the distinction between a legitimate request for oral evidence supported by documents and an impermissible attempt to obtain documentary discovery through letters rogatory. Overlapping litigation elsewhere, and the possibility that evidence might be useful in both proceedings, did not establish oppression on the evidence presented.

The ruling develops existing principles rather than creating a new statutory jurisdiction. Its significance lies in explaining how international judicial cooperation, disclosure obligations, and witness protection operate together.

2. Background and Issues

The underlying commercial disputes

Runbuk operates the World Marathon Challenge, an event involving seven marathons on seven continents over seven days. It acquired the event’s intellectual property from its original organiser in December 2022.

Following that transaction, disputes arose between Runbuk and the former organiser. The former organiser commenced proceedings in California alleging, among other matters, breach of contract, unfair competition, and trademark infringement. Runbuk counterclaimed.

Separate proceedings in Florida concerned a competing event, The Great World Race, promoted by Ice Cap Adventures and its founder, who had previously acted as race doctor for the World Marathon Challenge. Runbuk alleged trademark infringement, customer confusion, and the exploitation of the defendants’ earlier association with its event. It also alleged that the former organiser had assisted the competing enterprise despite a non-compete agreement. Those allegations were background to the evidence application, not findings made by the Irish court.

The Irish evidence request

On 4 June 2026, the United States District Court for the Southern District of Florida issued letters rogatory seeking testimony and documents from the former organiser, who lived in County Galway. The proposed examination would involve sworn evidence before an Irish examiner, with questioning by US lawyers.

The requested topics included the defendants’ involvement in the original event, trademark use, assistance given to the competing race, relevant professional and commercial relationships, communications with customers and third parties, supporting material for declarations already provided in the Florida proceedings, and compensation connected with the competing event.

The documentary request extended to material within the witness’s possession, power, or control touching on the action, including the identified lines of inquiry. It expressly excluded documents privileged under Irish law or the law of the requesting jurisdiction.

The non-disclosure problem

The relevant sequence was:

• 4 June 2026: the Florida court issued the request.
• 10 June: the affidavit supporting the Irish application was sworn.
• 11 June: the Florida court imposed a stay of deadlines.
• 15 June: the Irish High Court granted an order without notice to the witness.

Neither the California litigation nor the intervening Florida stay was disclosed when the Irish order was sought. All parties accepted that Runbuk’s Irish lawyers did not know about the stay.

The witness applied to set aside the order, arguing that the omissions were material, that the request was effectively one for discovery, and that compliance would be oppressive because of its potential consequences for the California proceedings.

3. Summary of the Decision

The High Court refused to set aside the order.

• Both omitted matters should have been disclosed. The California proceedings were relevant to potential oppression. The omission of the Florida stay was more serious, particularly because the application had been presented urgently.
• Discharge was not automatic. The court assessed the omissions in context, including the absence of an examination before challenge, the full subsequent hearing, and developments in Florida.
• The request genuinely sought testimony. The witness had substantial personal knowledge and had already supplied declarations supporting the Florida defendants.
• Oppression was not established. Overlapping litigation and possible collateral use of information were insufficiently substantiated, particularly given unrebutted evidence about available US protective measures.

The court directed that the matter return on 6 October 2026 to address costs and rescheduling. The judgment did not determine the underlying trademark or contractual disputes.

4. Statutory Framework and Governing Conditions

Section 1 of the Foreign Tribunals Evidence Act 1856 authorises the Irish court to assist a foreign court or tribunal of competent jurisdiction where civil or commercial proceedings are pending and testimony is sought from a witness within the Irish jurisdiction.

The available powers include ordering examination on oath, compelling attendance, requiring production of identified documents, and giving reasonable and just directions about the examination. Order 39, rule 39 of the Rules of the Superior Courts provides the procedural mechanism.

The jurisdiction is discretionary. International comity favours assistance, but does not remove the court’s responsibility to protect witnesses and fair procedures. Drawing on the established authorities, the judgment identified four conditions:

1. The proposed evidence must be relevant to the foreign proceedings.
2. The application must not be oppressive.
3. The order must not override an established privilege or protection available to the witness.
4. The evidence obtained must be admissible under the law of the requesting state.

The applicant for assistance must satisfy all four. Although the immediate application sought to discharge an existing order, that procedural posture did not eliminate the underlying requirements. In this case, the principal disputes concerned non-disclosure, oppression, and whether the request was truly for testimony rather than discovery.

5. Precedents Cited and Their Influence

American Express Warehousing Ltd v. Doe [1967] 1 Lloyds Rep. 222

Lord Denning MR’s statement supplied the judgment’s starting point: courts should ordinarily assist foreign courts in obtaining evidence, just as they would expect reciprocal assistance.

This supported a cooperative approach to the Florida request. It was not treated as an instruction to enforce every request regardless of domestic safeguards.

Novell Inc. v. MCB Enterprises [2001] 1 I.R. 608

This authority involved related Irish and US proceedings arising from the alleged diversion and sale of software intended for destruction. The proposed examination risked placing the defendants in an invidious position when preparing their defence to fraud allegations in Ireland.

Denham J. affirmed that Irish courts should be favourably disposed towards foreign requests and slow to refuse them. Nevertheless, the High Court order was set aside because of the potential impact on constitutionally protected fair procedures.

The authority mattered in two ways. It established both the presumption favouring assistance and the importance of examining related litigation for possible oppression. It therefore supported the conclusion that the California proceedings should have been disclosed. However, it did not make the mere existence of parallel proceedings sufficient to defeat assistance.

Sabretech Inc. v. Shannon Aerospace Limited [1999] 2 I.R. 468

This case concerned evidence sought following a fatal aircraft crash. The proposed witness was a records custodian who had no relevant recollection and whose lack of oral evidence was not disputed. McCracken J. concluded that the request was, in substance, one for discovery of documents.

The present judgment distinguished that situation. Here, the witness’s historical involvement in the business, knowledge of the disputed events, and previous declarations demonstrated a genuine evidential purpose. The request was not transformed into discovery merely because documents were also required.

Cornec v. Morrice & ors [2012] 1 I.R. 804

Hogan J.’s decision provided the four-part framework governing relevance, oppression, privilege or protection, and foreign admissibility.

Its particular facts illustrated the limits of judicial cooperation. The proposed examinations risked disclosure of journalistic sources, and the relevant protection justified refusing assistance. The authority therefore demonstrates that comity cannot override an established protection simply because the requesting court considers the evidence useful.

Cutler v. Azur Pharma [2015] I.R. 167

This authority concerned the examination of KPMG auditors in litigation about allegedly understated pharmaceutical revenues and associated milestone payments. Noonan J. synthesised the earlier authorities and recognised the court’s power to limit or “prune” documentary requirements rather than refuse assistance altogether.

It was also directly relevant to non-disclosure. Although an affidavit had omitted an existing US discovery process, that omission did not justify refusal where it was not calculated to mislead and no practical advantage or corresponding prejudice had resulted from the ex parte order.

The present court adopted that contextual approach, while treating the undisclosed stay as a more serious lapse. The authority also confirmed that the court possesses tools to control documentary scope, although no substantive pruning was ordered in this judgment.

Bambrick v. Cobley [2005] IEHC 42

Clarke J.’s three considerations structured the non-disclosure analysis:

1. the significance of the undisclosed fact;
2. the extent of deliberateness or culpability; and
3. the justice of the case as a whole.

These considerations explain why identifying an omission does not end the inquiry. Its seriousness must be evaluated alongside its consequences and the appropriate overall disposition.

Petersen Energia v. Argentine Republic [2025] IEHC 463

Runbuk relied on Roberts J.’s judgment for the proposition that non-disclosure requires an assessment of materiality rather than automatic discharge. The present court’s reasoning was consistent with that proposition. The judgment did not provide a wider analysis of this authority.

6. Analysis of the Court’s Reasoning

A. Full and frank disclosure remains mandatory

The court described full and frank disclosure as “non-negotiable” in an application made without notice. Importantly, the obligation rests on the moving party, not merely on its Irish lawyers.

The accepted innocence of Runbuk’s Irish legal team therefore did not resolve the issue. Lawyers act as agents, and a party cannot answer an omission simply by showing that material information was never communicated to the lawyers appearing before the court.

At the same time, the response to a breach must be case-specific rather than automatic. The judgment distinguishes the strictness of the duty from the discretion governing the consequences of non-compliance.

B. The California proceedings were relevant, but their omission did not require refusal

The existence of related litigation between the applicant and the proposed witness was relevant because the Irish court had to assess oppression. Proceedings arising from substantially the same events could affect whether compelled evidence would place the witness at an unfair disadvantage.

Nevertheless, Runbuk had provided a reasonable account of the Florida dispute and the witness’s role. The court accepted that the omission was not motivated by bad faith or an intention to mislead. Crucially, the order had not resulted in an examination before the witness obtained a full opportunity to challenge it.

The subsequent hearing did not make the original omission acceptable. It did, however, allow the court to assess the alleged unfairness before evidence was taken and to determine whether refusal remained necessary.

C. Failure to disclose the stay was more serious

The stay directly affected the urgency and procedural setting of the Irish application. Had it been disclosed, the High Court could have investigated its precise effect, approached the application without the asserted urgency, or directed that the witness receive notice.

The court criticised the US attorney’s unilateral conclusion that the stay was immaterial as a serious error of judgment. A conclusion that an order remains legally effective does not make a related procedural development irrelevant to the court considering discretionary relief.

On the documents and affidavit evidence, however, the judge understood the stay as relating to deadlines rather than rescinding or formally suspending the letters rogatory. Refusal was ultimately unwarranted because:

• the witness had not been compelled to undergo examination before challenging the order;
• the court now had extensive evidence and submissions;
• Runbuk had offered to defer examination until the stay was lifted; and
• before judgment, the Florida court had refused Runbuk’s preliminary injunction application and lifted the stay.

The ruling is therefore not authority that a foreign stay may be ignored. Its effect and significance must be disclosed and assessed.

D. The request was genuinely for oral evidence

The court focused on substance rather than labels. A purported examination cannot be used as a vehicle for obtaining documents from someone who has no relevant testimony to give.

Here, the witness was the event’s former organiser and owner, had knowledge of the relevant relationships, and had already provided declarations supporting the Florida defendants. He had also voluntarily accepted a subpoena requiring evidence and documents for those defendants.

Those circumstances demonstrated a legitimate need for examination. The court concluded that obtaining documents was not the request’s dominant purpose. This does not create an unrestricted power of documentary discovery under the 1856 Act: the production requirements remain connected to a genuine evidential request and subject to judicial control.

E. Overlap between proceedings did not establish oppression

The court gave considerable weight to the Florida court’s assessment that the witness was critical. That court had greater familiarity with the underlying dispute. Nevertheless, the Irish judge also considered the documentary categories and the proceedings independently.

Evidence may legitimately be relevant to two actions. The Irish court was not required simply to choose which US proceedings should be the exclusive forum for disclosure.

The witness’s concerns about collateral use were also insufficiently developed. He supplied no supporting evidence from his California lawyers, while Runbuk’s US attorney identified confidentiality and “For Attorney’s Eyes Only” mechanisms said to protect against inappropriate use. That evidence was not substantively rebutted.

The court also noted the absence of an attempt to seek variation or discharge of the request in Florida. This was relevant to the overall assessment, but the judgment did not establish a formal requirement to exhaust foreign remedies before raising objections in Ireland.

Finally, the witness’s willingness to assist the defendants, while resisting examination sought by Runbuk, weakened his claim of oppression. That conduct supported the court’s assessment of the application; it did not amount to a general waiver of privilege or protection.

7. Significance and Practical Impact

• Cross-border disclosure systems matter. Applicants must ensure that overseas lawyers communicate material procedural developments to Irish representatives, particularly between the grounding affidavit and the hearing.
• Related litigation should be identified. Its existence may be relevant to oppression even where the foreign request itself does not mention it.
• Non-disclosure requires a calibrated response. Serious criticism and continuation of relief can coexist where the overall justice of the case does not require discharge.
• Witness objections need concrete support. Claims of unfair collateral use should explain the threatened prejudice and address the adequacy of available safeguards.
• Documentary breadth is not decisive by itself. Courts will examine whether genuine testimony is sought and whether the accompanying production requirements are justified.
• Comity remains bounded by protection. The decision preserves the relevance, non-oppression, privilege, and admissibility requirements rather than replacing them with deference to the requesting court.

The result should not be read as approval of all broadly worded document requests or as a rule that parallel foreign litigation can never be oppressive. The outcome depended on the witness’s knowledge, the evidential purpose of the request, the absence of demonstrated prejudice, and the procedural safeguards available.

8. Complex Concepts Simplified

Letters rogatory

A formal request from one country’s court asking another country’s court to help obtain evidence.

Ex parte application

An application initially heard without the affected person participating. This makes the applicant’s obligation to disclose relevant information especially important.

International judicial comity

Respectful cooperation between courts in different countries, subject to each court’s own legal safeguards.

Discovery and witness examination

Discovery generally involves searching for and disclosing relevant documents. Examination obtains a witness’s testimony. The 1856 Act cannot be used to disguise a discovery-only request as an examination.

Oppression

Unfairness or an unjustified burden arising from the requested assistance. Ordinary inconvenience or relevance to another lawsuit does not, without more, establish it.

Subpoena duces tecum

A compulsory direction requiring a person to attend and bring specified documents.

“Pruning” an order

Narrowing excessive documentary requirements while preserving the legitimate evidence-gathering purpose.

9. Conclusion

The judgment affirms that full and frank disclosure is mandatory, but the remedy for breach is contextual rather than automatic. The undisclosed related litigation and foreign stay warranted criticism, yet did not justify discharge after the court assessed their consequences and the merits of the request.

Its broader lesson is that international evidence gathering should be facilitated where testimony is genuinely required and unfairness has not been demonstrated, while maintaining independent scrutiny of disclosure, documentary scope, privilege, and witness protection.