B e f o r e :
Senior Master Cook ____________________
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Phillip Patterson (instructed by Collyer Bristow) for the Applicant Peter Head (instructed by Enyo Law) for the Respondent Hearing date: 9 March 2026 ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
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Senior Master Cook:
This hearing was listed for the court to consider two applications. First, an application by the Respondent witness ("Ms Jain") dated 6 February 2026 ("the Stay Application") for a stay of the varied Letter of Request order dated 30 January 2026 ("the Varied LoR Order"). Second, an application by the Applicant under CPR 34.10(2) dated 12 February 2026 for an order compelling Ms Jain to attend examination and produce documents ("the CPR 34.10 Application").
Shortly before the hearing I was informed that the parties had reached agreement on the substantive content of the applications on the basis that Ms Jain would give disclosure of documents by 18 March 2026 and attend an examination on 1 April 2026. Unfortunately, no agreement was possible in relation to the costs of the applications.
In the circumstances, I heard lengthy submissions from Mr Patterson and Mr Head which occupied the entire two hours that the substantive- hearing had been listed for. To say the issue was hard fought is an understatement. The Applicant maintained that it should have the costs of both applications on the indemnity basis together with the wasted costs of an examination which had been scheduled on 9 February 2026. The Respondent maintained that she should have her costs of both applications on the indemnity basis and should not be responsible for the wasted costs of the 9 February 2026 examination. Both parties maintained the conduct of the other was "outside the norm".
With that introduction it is necessary to look in greater detail at the background to the litigation in the United States and the events which have unfolded in this jurisdiction concerning the disclosure and evidence sought from Ms Jain.
In the US Proceedings the Applicant seeks damages against the US Defendants for fraudulent misrepresentation, fraudulent omissions, conversion, breach of fiduciary duties and the disgorgement of inside trading proceeds, all relating to the sale of shares in a company named Bridg by the Applicant to the Second US Defendant, Alliance Group Ventures LLC. It is alleged that shortly after the sale of the shares to Alliance, Bridg was sold to another company at a much higher valuation.
The Respondent is the sister of the First US Defendant, Mr Jain, who was the founder of Bridg. It is alleged that she indirectly held the shares in Brigd through her shareholding in Alliance and ultimately received a sum of around $4.6 million from the sale of Bridg which initially flowed through Mr Jain's bank accounts in the US before apparently being transferred to her or otherwise invested.
On 24 July 2025, Judge Randolf M. Hammock of the Superior Court of the State of California, County of Los Angeles issued a Letter of Request asking the High Court to assist in obtaining evidence from the Respondent.
On 8 December 2026, I made the LoR Order giving effect to the LoR. The examination was initially set to take place no later than 30 January 2026 Following an application to set aside the LoR made by the Respondent the parties agreed to vary the LoR order by way of consent order dated 30 January 2026 so that the scope of the examination was reduced and scheduled for 9 February 2026 between 14:00 and 20:00, and the scope of disclosure was reduced and was to be given by 4pm on 5 February 2026.
On 3 February 2026, Mr Jain applied to have the US Proceedings dismissed on the basis that it had been discovered the Applicant was not in good standing in Delaware, its State of incorporation, for failure to pay franchise taxes, a situation akin to a company being automatically struck off the register of companies.
On 4 February 2026 Judge Hammock declined to dismiss the US Proceedings but vacated the trial date to allow time for the Applicant to be put in good standing. In the course of that hearing he observed that a certificate of good standing or 'revival' would cure any issue with the Applicant's standing. It also seems that the Defendant's counsel informed Judge Hammock of their intention to file a motion for dismissal on the basis that the Applicant's prior void status meant that its claims were time barred under the relevant statute of limitations.
It would seem the Respondent's solicitor was informed of these developments overnight. Enyo Law then corresponded with the Applicant's English Counsel and the court initially requesting an extension to the 6 February 2026 to produce the documents required by paragraph 2 of the order of 30 January 2026 and at 11:26 on 5 February 2026 wrote to the Court in the following terms:
At 15:00 on 5 February 2026 Collier Bristow provided Enyo Law with a copy of a certificate of restoration for the Applicant. Enyo Law responded that they would need to take instructions from US Counsel.
At 1.00pm on 6 February 2026 I sent the following response to the parties:
Enyo Law responded to the court at 13:19 on 6 February 2026:
Enyo Law then issued the Notice of Application on 6 February 2026 supported by the second witness statement of Ms Orr of the same date. Following service of the Stay Application Collier Bristow, on behalf of the Applicant responded to Enyo Law at 20:43 on 6 February 2026:
By letter dated 7 February 2026 Enyo Law responded rejecting the offer. The letter set out the following reasons for doing so:
If the US Court rejects the statute of limitation motions by the Defendants and confirms that the trial will be continuing Ms Jain is to provide document disclosure 14 days after judgment of the US Court; and
Ms Jain's deposition examination to be completed within 28 days after receipt of the document disclosure .
At 16:48 on 8 February 2026 Collyer Bristow filed and served the third witness statement of Mr Henry in opposition to the Stay Application and in answer to Ms Orr's second witness statement. That witness statement largely rehearsed the history I have set out and concluded with the observation that the timing of disclosure was now critical and invited the Court to direct that disclosure should be provided by 18.00 on Sunday 8 February 2026 and that the examination should commence at 18:00 UK time on Monday 9 February 2026. Finally it was submitted that if the Applicant were not to attend the Examination on Monday 9 February the Court should order the Respondent to pay the Applicant's costs and expenses of the Examination. The covering email requested an urgent hearing on the Monday morning to hearing the Respondent's Stay Application.
Pausing there, I simply fail to understand how Collyer Bristow expected the Court to deal with such a request, made on a Sunday. If they truly believed that the matter was urgent and that the future of the Examination depended on it they should have attended at Court first thing on the Monday morning. They did not do so.
Enyo Law replied to Collyer Bristow and the Court at 8:30 on 9 February:
To its credit, the Foreign Process Department did manage to forward me the e-mail correspondence between the parties however I was not able to deal with it until midday because of other court commitments. I responded at 16:17:
Having been forwarded further e-mails from the parties I responded at 12:37 on 10 February 2026:
In the meantime, the Applicant pressed ahead with the arrangements for the Examination. They attended before the Examiner, Mr Halkerston and obtained a certificate of nonattendance from him issued under CPR 34.10.
On 10 February 2026, Collyer Bristow wrote to Enyo Law:
Enyo Law responded the same day by return:
On 12 February 2026 the Applicant issued its application under CPR 34.10 (2) for an order requiring the Respondent to attend her examination and for the costs of the failed examination. The 34.10 Application stated that it was a "cross application to the Respondent's application on 6 February to stay the disclosure examination". The 34.10 Application was supported by the 4 th witness statement of Mr Henry of the same date.
The relevant provisions of the CPR.
Applications for the examination of a witness under the Evidence (Proceedings in Other Jurisdictions) Act 1975 are made in accordance with CPR 34.17. CPR 34.18 (2) provides that unless the court orders otherwise, the examination will be conducted as provided by CPR 34.9 and 34.10.
The starting point is that the fees and expenses due to an examiner must be paid by the party who obtained the order for examination, see CPR 34.14 (3). However, CPR 34.14 (6) makes it clear that the court retains a complete discretion over who is ultimately to bear the costs of the examination. It is important to bear in mind that when granting assistance to a foreign court for the purpose of obtaining evidence for the purpose of proceedings in that court the English Court will do so, as far as is it can and in accordance with the principles of English law, see Seyfang v GD Searle & Co [1973] Q.B. 148 at 151. This reflects established principles of judicial and international comity.
In this case the court is providing assistance to the Superior Court of the State of California, however the evidence sought by way of examination is to be deployed in litigation before that court and strictly speaking the costs of obtaining that evidence are incurred in that litigation. This seems to me to inform the usual position which is reflected in CPR 34.14 (3). In order to depart from that position, the court will primarily be looking at conduct issues but also may take into a count success or failure on associated legal issues such as the scope of the request with applying its discretion under CPR 44.2.
An order made by the court made for the purpose of the examination of a witness is not a witness summons requiring the witness to attend. It is an order of the court which in its ordinary course should be obeyed. In most cases the witness will be willing to attend the examination and give evidence. If a person served with such an order fails to comply CPR 34.10 provides:
Once an examiner has issued a certificate of "failure" or "refusal" the party seeking the deposition may apply to the court for an order requiring the witness to attend. As 34.10(4) makes clear such conduct on the part of a witness may amount to conduct which would justify a costs order being made against them. If the witness were to fail to comply with an order to attend examination the Court's contempt jurisdiction under CPR 81.6 would be invoked.
The parties' submissions
On behalf of the Applicant Mr Patterson submitted that costs should follow the event; its 34.10 Application has substantively succeeded and the Respondent's Stay Application is not pursued. In the circumstances it is for the Respondent to demonstrate why the usual costs order should not follow.
In relation to the Respondent's application to stay my order of 8 December 2025 Mr Smith-Roberts submitted that it had not been pursued and was in any event fundamentally flawed and based on a wholly mistaken premise, namely that the US Defendants would be making Motions for Judgment which would lead to the dismissal of the US Proceedings and that they had not done so.
Mr Patterson submitted that the Applicant's stance was entirely reasonable. He relied upon four central propositions:
i) At 08:14 on 6 February 2026, the Respondent's solicitor invited the Applicant to agree to a stay "until the determination of the US Court as to the validity of the action" . As the Respondent was aware, the Applicant's legal team in the UK were in no position to take updated instructions in relation to the proposed stay as a result of the client being in California and asleep.
ii) As soon as instructions were received (late into the evening on Friday 6 February 2026), an entirely reasonable proposal was put to the Respondent which would have allowed for the orderly rescheduling of the examination and the provision of disclosure, avoiding the need for any parties to attend on 9 February 2026. The only condition attached to this proposal was that the Respondent pay the relatively modest costs thrown away as a result of the contractual commitments made to third parties necessary for the conduct of the examination.
iii) A further reasonable proposal was made by the Applicant on 10 February 2026, a proposal which (leaving to one side costs) is virtually indistinguishable from what came to be agreed on 5 March 2026. The Respondent was warned that a failure to accept this offer would result in an application being made for indemnity costs. The offer was rejected in correspondence which described the Applicant's conduct as "vexatious" and "oppressive".
iv) The Applicant accepts that an administrative issue arose in relation to its standing. However, this was entirely resolved on 4 February 2026 and the Respondent was told that it had been resolved on 5 February 2026. Thereafter, the costs arising in both the Stay Application and the 34.10 Application have been incurred solely as a result of the Respondent's own flawed decisions. The Respondent must bear those costs.
Accordingly, Mr Smith Roberts sought an order requiring the Respondent to pay:
i) The Applicant's costs of the Stay Application on the indemnity basis;
ii) The Applicant's costs of the 34.10 Application on the indemnity basis; and
iii) The costs and expenses incurred by the Applicant in respect of the examination on 9 February 2026 to which the Respondent did not attend.
On behalf of the Respondent Mr Head referred me to the provisions of CPR 34.10. He distilled the following questions for the Court:
i) Is this a case where it was necessary and appropriate for the Applicant to apply under CPR 34.10(2) for an order compelling Ms Jain to attend for examination under the threat of potential contempt proceedings if she failed to do so?
ii) In all the circumstances, is this a case in which it would be appropriate for the Court to make such an order in the exercise of its discretion?
Mr Head suggested that the answer to both questions was a resounding "no". He submitted that this was not a case of a delinquent or non-cooperative witness who has wilfully failed to attend an examination. On the contrary, he pointed out it has been made clear that the Respondent is perfectly willing to attend and examination, for example she agreed to the varied LoR Order.
Mr Head submitted that the reason the Respondent did not attend on 9 February 2026 was as a result of failings on the part of the Applicant itself relating to its own corporate existence. It was this fundamental failing that gave rise to Stay Application. The consequence of the Applicant not being in good standing is that the trial date in the US Proceedings was vacated with the consequence that there was no urgency in the examination proceeding thereafter and the Defendants to the US Proceedings indicated an intention to Judge Hammock that they would file motions that would be potentially dispositive of the entire case. The Stay Application was in the circumstances entirely justified.
Mr Head submitted that, given the state of flux that had arisen in the previous days as a result of the Applicant's own conduct, the examination could never have been effective. He pointed out that Collyer Bristow had themselves written to the Court on the previous day seeking an urgent hearing of the Stay Application on the morning of 9 February 2026 and submitted that ploughing on regardless was not reasonable conduct. The Respondent is represented by highly experienced and reputable solicitors who have made abundantly clear that she has no objection in principle to attending and the circumstances of her non-attendance on 9 February 2026 do not in any way give rise to an inference that she is wilfully refusing to engage in the process such that she needs to be compelled to attend by way of a coercive order from the Court.
Mr Head submitted that the Stay Application has been superseded. He pointed that the Respondent through her lawyers had proposed a revised timetable i.e. with a deposition on 1 April 2026 and document production on 18 March 2026 which had now been agreed.
Accordingly, Mr Head sought an order requiring the Applicant to pay the Respondent's costs of the 34.10 Application and the Stay Application on the indemnity basis. Lastly, the Applicant should be responsible for the costs of the examiner or of the Videographer and Stenographer.
Decision
I have concluded that the Applicant should pay the costs of the 34.10 Application and the Stay Application on the standard basis. The Applicant should also bear the wasted Examiner, Videographer and Stenographer costs.
In my judgment the root cause of the ineffective Examination in this case was the fact that Applicant had failed to pay sums lawfully required of it and as a result became a void Delaware Corporation. As pointed out by Mr Head, the Applicant had no legal existence when the LoR was issued or when the LoR Order was made.
This difficulty directly resulted in the adjournment of the US trial which had been listed for 2 March 2026. It also resulted in the US Defendant informing Judge Hammock of an intention to file a motion for judgment. Faced with these developments it was entirely reasonable for the Respondent to request the postponement of the document disclosure to 6pm on 6 February 2026. It is also worthy of note that Collyer Bristow did not initially object to this course and maintained that they would not be able to sign a consent order because their client had " ceased to exist" .
On Friday 6 March 2026 matters were clearly in a state of-flux. The time lag in communication with the USA did not assist matters. I accept that Collyer Bristow had managed to obtain a copy of the Applicant's certificate of revival at some point on 5 February 2026, however by this time the US trial had been vacated and the Respondent reasonably believed that the US Defendants might make an application challenging the US Court's jurisdiction. I reject any suggestion, that the Respondent was somehow in league with the US Defendants and is seeking to frustrate the Applicant's attempts to gather evidence as being against the weight of the evidence before me.
In my judgment it must have been obvious to the Applicant and Collyer Bristow by the close of business on 6 February that the Examination planned for 9 February would not be able to proceed. However the Applicant decided to file evidence and wrote to the Court seeking an urgent hearing of the Stay Application on Sunday 8 February. It must have been equally obvious to Collyer Bristow that there was very little likelihood of the Court being able to respond to this request immediately. I note that my response to the parties was not made until 16:17 on Monday 9 February, see paragraph 20 above.
Mr Halkerston, the Examiner, cannot be criticised. He was faced with an Order for the examination to take place at 14.00 on 9 February 2026 and the non-attendance of the witness. In the circumstances he had no option but to provide a certificate of non-attendance under CPR 34.10 (1). Whilst such a certificate must be filed with the court, it was not mandatory for the Applicant to make an application under CPR 34.10 (2). Having set out the correspondence between the parties at some length at paragraphs 22 to 24 above I can find no suggestion that the Respondent was refusing to produce documents or attend an Examination, in fact the opposite is the case, the only real issues between the parties related to the timing of the process and the fact that the Applicant was demanding the costs of the failed Examination.
I do not regard this as an appropriate case for costs of the Applications to be paid on the indemnity basis. In Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 879 ; [2002] CP Rep 67 , CA, the Court of Appeal held that the making of a costs order on the indemnity basis would be appropriate in circumstances where:
i) the conduct of the parties or
ii) other particular circumstances of the case, or both, were such as to take the situation "out of the norm" in a way which justifies an order for indemnity costs.
The discretion to award costs on the indemnity basis is ultimately to be exercised so as to deal with the case justly. Whilst I have held that the Applicant should have realised the Examination would be ineffective what took place was against a quickly developing set of facts occurring outside the jurisdiction. The Applicant's conduct may be criticized but it is not wholly out of the norm.
In the circumstances it is also appropriate that the wasted costs of the Examination should be borne by the Applicant.