Peer International Corp & Ors v Termidor Music Publishers Ltd & Anor

Factual and Procedural Background

The opinion concerns a trial in the High Court in London involving Claimants seeking declarations of ownership or exclusive license of copyrights in certain musical compositions, primarily "Cuba Son" music from the 1930s and 1940s. The Claimants include two US-incorporated companies and one English company, while the Defendants include companies incorporated in England and Germany, and a Part 20 Defendant described as a not-for-profit Cuban company wholly owned by the Cuban Government. Both sides intended to call witnesses residing or formerly residing in Cuba to give oral or written evidence, some relating to events up to 75 years ago. Due to difficulties with video link evidence from Cuba, the question arose whether the court could order oral evidence to be taken overseas, specifically in Cuba, despite opposition from one party on jurisdictional and venue grounds. The trial was adjourned to allow legal argument on the issues of jurisdiction and discretion regarding taking evidence abroad. The court heard arguments and then reserved its reasons, which are provided in this opinion.

Legal Issues Presented

1. Whether a High Court judge in London has jurisdiction to order that oral evidence intended for the case may be taken by examinations before the judge overseas, even if opposed on jurisdictional and venue grounds.
2. If such jurisdiction exists, whether the court should exercise it as a matter of discretion on the facts of the case.
3. If exercised, how the jurisdiction should be exercised and subject to what terms or conditions.

Arguments of the Parties

Appellant's Arguments

• Mr Saini, representing the Claimants, acknowledged examples of English judges hearing evidence abroad but contended these were by consent and no ruling on jurisdiction had been made.
• He relied heavily on section 71 of the Supreme Court Act 1981, which states that sittings of the High Court may be held only in England or Wales, arguing this limits jurisdiction to order sittings abroad.
• He argued that CPR 2.7, allowing the court to deal with a case at any place considered appropriate, could not override the statutory limitation in section 71.
• He urged that, absent consent of all parties, the court lacks jurisdiction to order evidence to be taken overseas and opposed Cuba as a venue, proposing alternative British Territories instead.
• Insisted that the formal Letter of Request procedure under CPR 34.13 should be followed if evidence is to be taken abroad.
• Raised concerns about the attendance of a key US citizen witness in Cuba due to political and personal risk, suggesting this was a disadvantage of Cuba as a venue.

Appellee's Arguments

• EMC, represented by Mr Prescott QC and Mr Mellor, contended that the court does have jurisdiction to order evidence to be taken overseas without party consent.
• Argued that the Letter of Request procedure is unnecessary if the foreign government consents to the examination by the special examiner (the judge).
• Asserted that Cuba’s government would readily consent to the judge acting as special examiner to hear evidence in Cuba.
• Emphasized the inadequacy of video link evidence and the prohibitive costs and difficulties of bringing witnesses to London.
• Highlighted that the witnesses are elderly and that moving them to British Territories would be more difficult and costly than hearing evidence in Cuba.
• Proposed practical arrangements for the examination, including unrobed private hearings with interpreters and recording of evidence.
• Expressed confidence that Cuban witnesses would attend voluntarily without compulsion.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered whether it had jurisdiction to order oral evidence to be taken overseas by the judge acting as a special examiner. It found that section 71 of the Supreme Court Act 1981, which restricts sittings of the High Court to England and Wales, did not apply to the taking of evidence abroad by a special examiner. This was because such examinations are distinct from sittings of the Court itself, as explained in the cited precedent. CPR 34.13 permits the appointment of a special examiner to take evidence outside the jurisdiction where the foreign government consents.

The court acknowledged that Cuba is not a "Regulation State" under CPR 34.13, but noted that the Cuban government’s consent was likely to be forthcoming for the judge to act as special examiner in Cuba. The court emphasized that this process would not constitute a sitting of the High Court in Cuba, nor would the judge have coercive powers there; attendance by witnesses would be voluntary and the court could not compel attendance or enforce orders abroad.

On the question of discretion, the court weighed the practical difficulties of hearing evidence by video link, the costs and risks of bringing elderly Cuban witnesses to London or to British Territories, and the advantages of hearing evidence in Cuba itself. The court recognized concerns about a US citizen witness’s attendance in Cuba but found these concerns overstated and manageable by alternative means of communication.

Balancing these factors, the court concluded it was expedient in the interests of justice to exercise the jurisdiction and order the judge to act as special examiner in Cuba, subject to obtaining formal consent from the Cuban government.

The court proposed a procedural mechanism whereby EMC would provide a list of proposed witnesses to the Claimants and the Department of Constitutional Affairs, which would seek Cuban government consent. Upon receipt of consent, the judge would appoint himself as special examiner and conduct the examinations in Cuba under agreed practical arrangements.

Holding and Implications

The court held that it has jurisdiction to order that oral evidence be taken overseas by the judge acting as special examiner, even where one party opposes on jurisdictional and venue grounds. This jurisdiction is subject to the prior consent of the foreign government, here the Government of Cuba.

In the exercise of discretion, the court ordered that, upon receipt of adequate indication of Cuban government consent, the judge shall appoint himself as special examiner and conduct witness examinations in Cuba. The transcripts of these examinations are intended to be admitted into evidence upon the judge’s return to London.

If Cuban government consent is withheld or delayed, the court indicated that the more formal Letter of Request procedure would then need to be followed.

The decision directly affects the parties by permitting evidence to be taken in Cuba under the court’s supervision, facilitating a more effective and just evaluation of witness evidence. The opinion does not establish new precedent beyond clarifying the court’s jurisdiction and discretion in this procedural context.