BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable PDF version]
[Help]
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2023] CSIH 15
P127/23
Lord President
Lord Woolman
Lady Wise
OPINION OF THE COURT
delivered by LORD CARLOWAY, THE LORD PRESIDENT
in the Petition by
LIV GOLF INC
Petitioners
for
An order for the production of documents held by
R&A TRUST COMPANY (No. 1) LIMITED
Respondents
Pursuant to a Letter of Request issued by the United States District Court for the Northern
District of California, United States of America
in the proceedings
LIV GOLF, INC & OTHERS v PGA TOUR, INC
Petitioners: McBrearty KC, Reekie sol adv; Brodies LLP
Respondent: Borland KC, T. Young; Shepherd & Wedderburn LLP
_______________
31 March 2023
Introduction
[1]
The petitioners have lodged a letter of request from the United States District Court
for the Northern District of California seeking an order for the recovery of documents and
the examination of a witness under the powers granted to the court by the Evidence
2
(Proceedings in Other Jurisdictions) Act 1975. They have done so without reference to the
Central Authority designated under the Hague Convention on the taking of Evidence
Abroad in Civil or Commercial Matters 1970. The court asked to be addressed on the
competency of such a course of action. It ordered intimation of the petition to the Scottish
Government Justice Directorate as the designated Central Authority for the receipt of such
letters of request.
Background
[2]
The PGA Tour Inc. have owned and operated a professional golf tour in North
America and elsewhere since the 1960s. LIV Golf were formed in 2021. They intended to
launch a gold league tour in 2022, but held a series of invitational events instead. LIV are
suing the PGA in the requesting court. They allege that the PGA have engaged in anti-
competitive practices in order to dissuade players from joining LIV's tour. LIV allege that
the PGA are seeking unlawfully to monopolise the elite golf event services market.
[3]
LIV have petitioned the court seeking an order to recover evidence which they say is
held by the R&A Trust Company (No. 1) Ltd. The R&A organises and promotes The Open.
LIV allege that the PGA have "leant" on the R&A to engage in anti-competitive practices
with them.
The 1975 Act and the Hague Convention
[4]
The Hague Convention of 1970 makes provision for the cooperation of the courts of
Convention signatories in the taking of evidence in civil or commercial litigation. One of the
purposes of the 1975 Act was to incorporate the Convention into domestic law (In re
Westinghouse Uranium Contract [1978] AC 547 at 608; In re Asbestos Insurance [1985] 1 WLR 3
331 at 335). It does not just do that. It provides that courts in the constituent parts of the
United Kingdom can give effect to an application for assistance from any foreign state, not
just Convention signatories.
[5]
Section 1 of the Act empowers this court to make an order "for evidence to be
obtained in the part of the United Kingdom in which it exercises jurisdiction" when it is
satisfied:
"(a)
that the application is made in pursuance of a request issued by or on behalf
of a court or tribunal ... exercising jurisdiction in any other part of the United
Kingdom or in a country or territory outside the United Kingdom; and
(b)
that the evidence to which the application relates is to be obtained for the
purposes of civil proceedings which either have been instituted before the requesting
court or whose institution before that court is contemplated...".
[6]
Section 2(1) defines the nature and scope of the court's power as being:
"...to make such provision for obtaining evidence in the part of the United Kingdom
in which it exercises jurisdiction as may appear to the court to be appropriate for the
purpose of giving effect to the request in pursuance of which the application is made;
and any such order may require a person specified therein to take such steps as the
court may consider appropriate for that purpose."
[7]
In addition to those elements which are incorporated by the 1975 Act, the Hague
Convention provides:
"Article 2
A Contracting State shall designate a Central Authority which will undertake to
receive Letters of Request coming from a judicial authority of another Contracting
State and to transmit them to the authority competent to execute them. Each State
shall organise the Central Authority in accordance with its own law.
Letters shall be sent to the Central Authority of the State of execution without being
transmitted through any other authority of that State."
4
The Central Authority for the United Kingdom is designed as the "Senior Master, Foreign
Process Section, Royal Courts of Justice", but the contact details for applications relating to
Scotland are "Scottish Government Justice Directorate". The Convention continues:
"Article 5
If the Central Authority considers that the request does not comply with the
provisions of the present Convention, it shall promptly inform the authority of the
State of origin which transmitted the Letter of Request, specifying the objections to
the Letter.
...
Article 27(a)
The provisions of the present Convention shall not prevent a Contracting State from
(a)
declaring that Letters of Request may be transmitted to its judicial authorities
through channels other than those provided for in Article 2.
(b)
permitting, by internal law or practice, any act ... to be performed upon less
restrictive conditions.
..."
Submissions
R&A Trust Company
[8]
The respondents accepted that there was nothing in the 1975 Act or the relative Rules
of Court (RCS Chapter 66) prohibiting applications from private parties. Nevertheless, the
applications in reported cases in Scotland had been made by the Lord Advocate (eg Lord
Advocate, Petr 1998 SC 87; Lord Advocate, Petr 1993 SC 638; Lord Advocate v Sheriffs 1978
SC 56). Where a statute had been passed in order to give effect to the obligations of the UK
under an international treaty, reference could be made to the terms of the treaty as an aid to
interpretation (Bennion: Statutory Interpretation (8th ed) para 24.16). The reason why the
Lord Advocate became involved in Scottish proceedings was because the Central Authority
for Scotland was a department of the Scottish Government and the Lord Advocate
5
represented the Scottish Ministers in related proceedings. In contrast, the situation in both
England & Wales and Northern Ireland was that the Central Authority was a judicial one.
Elsewhere in the UK, direct applications from parties could be made. These would be
forwarded to the Central Authority, ie the court (In re Westinghouse Uranium Contract; In re
Asbestos Insurance). The English Civil Procedure Rules mentioned the relevant practice
(paras 34.21.16 and 17).
[9]
In these circumstances the petition was incompetent. The Central Authority was
intended to be the sole conduit through which to channel letters of request, unless there had
been a declaration under Article 27(a), which there was not. Nothing could safely be taken
from the practice elsewhere in the UK given the difference in the nature of the Central
Authorities. If the 1975 Act were to be interpreted as permitting a direct application by a
party, it was not clear how it would be possible for the state to ensure that the UK had
complied with its international obligations given that the Central Authority would know
nothing about the letter of request.
LIV
[10]
The petitioners submitted that the 1975 Act went beyond the Convention in not
confining itself to signatory states. The designation of a Central Authority to receive letters
of request referred to requests coming from signatory states. There was no obligation on the
Central Authority to receive requests from non-signatories, yet the 1975 Act was framed in a
manner whereby the court was obliged to entertain such requests (for example from
Canada). All that the 1975 Act required was an application to the court. There was no
restriction on those who might make an application. Private persons could do so in
England. Applications from parties had been considered and granted by the court in the
6
past, albeit on an unopposed basis. Time was a further factor. The Scottish Government
Justice Directorate took an estimated 6-12 months to process letters of request.
The Central Authority
[11]
The Lord Advocate lodged a written note of argument in response to the intimation
of the petition on the Central Authority. The Central Authority raised no objection to a
direct petition by a private party, which was competent in terms of section 1 of the 1975 Act.
It had been intended not only to give effect to the Hague Convention, but also to re-enact the
existing law. The Foreign Tribunals Evidence Act 1856 had allowed direct applications
(Baron de Bildt, Petnr (1905) 7 F 899; McCorquodale, Petnr 1923 SC 792). An Explanatory
Report to the Hague Convention noted that articles 27(a) and (b) permitted the issuing
authority to send letters direct "from court to court" or through a party to the action direct
to the executing tribunal, by-passing the Central Authority, although this was not normally
permissible in a Convention case. The parties lodged brief written responses to the Central
Authority's position. The petitioners endorsed the view that the 1975 Act fell within the
scope of Article 27(b), but not (a). The respondents disagreed that Article 27 was relevant. It
could only be operated by the government (Halsbury's Laws of England (5th ed) Vol 61
para 19).
Decision
[12]
The court's concerns about direct applications were prompted by the idea that,
where a foreign judicial authority wishes to invoke compulsory measures to obtain evidence
in Scotland, comity or at least courtesy ought to require that the relevant application pass
through the offices of government. As the Central Authority does not maintain that
7
position, it cannot be for the court to impose such a requirement, which was intended to be
for the government's benefit. Since the 1975 Act does not prohibit direct applications, and
this petition meets the criteria in section 1, the court holds the application to be competent.
This is consistent with the position elsewhere in the UK. The petition can now proceed as
accords.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSIH_15.html
