Sabretech Inc. v. Shannon Aerospace Ltd.

Factual and Procedural Background

An ex parte Order was made on 1 February 1999 on the application of Company A, pursuant to Section 1 of the Foreign Tribunals Evidence Act 1856, requiring the records custodian of Company B to appear before an Examiner to be examined on oath and to produce certain documents related to a letter of request from a United States District Judge. The records custodian is the head of the Engineering and Planning Department at Company B. Company B subsequently applied to set aside the Order, contending that the request from the United States Court did not fall within the scope of Section 1 of the Foreign Tribunals Evidence Act 1856.

The underlying United States litigation concerns an air disaster in The State on 11 May 1996 with multiple fatalities. Relatives of the deceased initiated proceedings against various defendants, including an airline operator and Company A, an aircraft maintenance company involved with oxygen generators removed from aircraft linked to the crash. The evidence sought relates to maintenance, removal, replacement, and disposal practices for such oxygen generators. The records custodian of Company B stated that he had no personal knowledge or involvement with the relevant aircraft or oxygen generators and thus no oral evidence to provide, only documents held by Company B.

Legal Issues Presented

1. Whether the request from the foreign (United States) Court falls within the scope of Section 1 of the Foreign Tribunals Evidence Act 1856, which permits ordering the examination of witnesses to obtain testimony.
2. Whether the Court has power under that section to order production of documents alone or to order examination that is effectively a discovery of documents rather than testimony for trial.
3. Whether the records custodian of Company B can be compelled to give oral testimony or only produce documents ancillary to such testimony.

Arguments of the Parties

Company B's Arguments

• The request from the United States Court does not come within Section 1 of the Foreign Tribunals Evidence Act 1856.
• The records custodian has no knowledge or recollection of involvement with the aircraft or oxygen generators relevant to the case and thus cannot provide oral evidence.
• The request is effectively for discovery of documents, which is not authorized by the Act.

Company A's Arguments

• Company A seeks the evidence of the records custodian and all relevant documentation concerning the maintenance and handling of oxygen generators.
• The documents are sought in connection with the custodian’s testimony as ancillary supporting evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Eccles & Co v Louisville & Nashville Rail Road Company (1912) 1 KB 135	Foreign Tribunals Evidence Act 1856 authorizes orders for taking evidence (testimony) but not for discovery of documents.	Confirmed that the Act empowers the Court to order evidence to be given before a Commissioner but does not authorize discovery of documents.
Radio Corporation of America v Rauland Corporation (1956) 1 QB 618	Distinction between discovery of documents and testimony for trial under the Act; discovery is not permitted.	Supported the interpretation that the Act does not allow examination to ascertain document contents or discovery disguised as testimony.
American Express Warehousing Limited v Doe and Others (1967) 1 Lloyd's List Law Reports 222	Order for testimony may include production of specified supporting documents ancillary to that testimony.	Clarified that where documents are sufficiently specified and ancillary to testimony, production may be ordered; however, mere discovery is not allowed.

Court's Reasoning and Analysis

The Court carefully examined the statutory language of Section 1 of the Foreign Tribunals Evidence Act 1856, emphasizing that it authorizes orders for examination of witnesses to obtain testimony, not for discovery of documents simpliciter. The Court noted that the Act requires the applicant to be desirous of obtaining testimony, and the order must secure attendance for examination or production of documents ancillary to testimony.

Applying the cited precedents, the Court acknowledged that the records custodian of Company B has no personal knowledge or oral evidence relevant to the foreign litigation, only documents. The Court concluded that ordering the production of documents alone, without oral testimony, amounts to discovery, which is not authorized by the Act.

The Court observed that previous attempts by Company A to obtain documents through deposition and subpoena targeted only the records custodian for documents, reinforcing the view that the application was effectively for discovery. Since the custodian cannot provide testimony related to the documents, the Court found the request fell outside the scope of Section 1.

Accordingly, the Court held that the original Order was improperly made and should be set aside.

Holding and Implications

The Court SET ASIDE the Order made on 1 February 1999 requiring the records custodian of Company B to appear for examination and produce documents pursuant to Section 1 of the Foreign Tribunals Evidence Act 1856.

The direct effect is that Company A cannot compel the records custodian to give oral testimony or produce documents under this statutory provision when no relevant testimony can be given, and the request is essentially for discovery of documents. No new precedent was established beyond reaffirming the proper scope of the Act.