English Court of Appeal refuses an anti-suit injunction to restrain US discovery application
In Soriano v Forensic News LLC and Ors the English Court of Appeal has recently clarified the approach of the English courts to an application for an anti-suit injunction restraining a US 1782 application. A 1782 application is an application under Section 1782 of Title 28 of the United States Code by a litigant in non-US proceedings seeking to obtain discovery from a person who resides in the US for use in the non-US proceedings.
The Court of Appeal followed the House of Lords’ decision in South Carolina Insurance Co v Assurantie Maatschappij ‘’ De Zeven Provincien ‘’ NV and confirmed that the test was whether, in all the circumstances of the case, the 1782 application was oppressive, vexatious or otherwise unconscionable, and whether it would interfere with the conduct of the English proceedings- thereafter known as the “South Carolina Principle” -. The Court of Appeal was referred to two occasions on which the English court had restrained a 1782 application: (i) in Bankers Trust International Plc v. PT Dharmala Sakti Sejahtera, in which the defendant issued a 1782 application after the English trial had already concluded; and (ii) in Omega Group Holdings Ltd v. Kozeny, in which the subject of the 1782 application was intended to be called as a witness to give oral evidence at the trial of the English proceedings. The Court of Appeal found that the facts in those two cases were very different from those in Soriano, and held that the 1782 application was not oppressive, vexatious or unconscionable.
With respect to the scope of a 1782 application, which is typically wider than third-party disclosure typically ordered by an English court, the Court of Appeal held that it was primarily a matter for the US court, to consider whether the request conceals an attempt to circumvent foreign proof-gathering restrictions, and for the US court to reject or trim unduly intrusive or burdensome requests. A US court may also impose appropriate measures to protect the confidentiality of materials.
Given the increasing use of 1782 applications by litigants in Cayman Islands proceedings, and the adoption by the Cayman Islands courts of the South Carolina principle, this case will serve as useful guidance in the Cayman Islands to litigants and practitioners alike.