"in some cases the assistance sought is, in accordance with the system of law under which it is available, discretionary. Obviously the fact of the request for assistance is a weighty factor to be taken into account. Further the Court of England may be expected to accept without further investigation the views of the requesting court as to what was required for the proper conduct of the bankruptcy or winding up. But I do not think that the request can ever be conclusive as to the manner in which the discretion of the court should be exercised. It would be incompatible with the principle of the law which was being applied that the decision was one for the discretion of the court if the fact of the request was anything more than a factor however weighty [518].
In considering whether and if so how this court should exercise the jurisdiction to restrain proceedings abroad it is also necessary to consider matters occurring since the Letter of Request was signed. Normally it would not be appropriate for the Court in England to enquire into the basis for the views expressed by the court of the country making the request. But there is no reason of comity or justice to prevent it from considering subsequent events [521]."
We accept the submission that Montrow is authority for the proposition that a Letter of Request should not be considered in a vacuum. It is not contrary to the principles of comity for the Royal Court to uphold an appeal in circumstances where there is an absence of any supporting evidence or information justifying giving assistance to the Letter of Request.
This is an approach which is particularly legitimated by such evidence as we have. In his second affidavit, Mr Roman Khaev, a Director of RTI Limited, the Representor, says:-
"RTI also has serious concerns as to the approach adopted by the Mykolayiv District Administrative Court in the appeal and in particular the lack of any obvious process initiated by any party to the Mykolayiv proceedings to justify the need for acquiring such onerous and vague disclosure from RTI."
At paragraph 16 of his second affidavit he says this:-
"I have had no formal correspondence with MAP [the Second Respondent] in relation to either the Jersey or Ukraine proceedings. Nevertheless, given the common interest of RTI and MAP as companies in the Rusal Group, my colleagues have spoken on the telephone to in-house lawyers at MAP in January 2017, May 2017 and November 2017 to better understand the circumstances of the Letter of Request and the Ukraine proceedings. What I have essentially learned is that it appears that the Letter of Request was sent by the Mykolayiv District Administrative Court of its own motion and without any application having been made and therefore no party has been involved in the process or taken any action in relation to it.
We also note that we have no evidence before us as to the extent to which information which is provided to the Third Respondent is subject to any implied undertakings as to confidentiality, but it would appear to be the case that if the Letters of Request were issued not on the request of any party but at the instigation of the requesting court itself, there are no confidentiality undertakings attached to provision of the information in question."
Advocate Sanders raised in his submissions a number of other points including the question as to whether this was an inappropriate means of seeking tax information given the fact that both Jersey and the Ukraine are signatories (in Jersey's case through the United Kingdom) to the Convention on Mutual Administrative Assistance in Tax Matters 1988 (amended by protocol in 2010). In the light of our conclusion in relation to the lack of assessment as to whether the information sought is relevant to the civil proceedings taking place in the Ukraine, it is not necessary for us to consider these points any further.
We are conscious of the possibility of exercising a blue pencil approach as contemplated in Westinghouse (Rio Tinto Zinc Corp v Westinghouse Elec Corp [1978] 1All ER 434). In our judgment it is not possible to contemplate a blue pencil exercise here because the Letter of Request does not set out sufficient information regarding the documents and information which is sought. The Respondents have declined to provide affidavit evidence which would clarify the relevance of the requests to the proceedings which are taking place in the Ukraine. In those circumstances a blue pencil exercise is not practicable.
The Appellant's amended summons seeks in the alternative orders that the Act of Court be set aside or varied on grounds that the requests are overly general, vague and / or lack specificity and constitute a fishing exercise. It is not necessary to go into any detail in relation to those objections because the appeal is allowed on different grounds as set out above.
For these reasons the appeal has been allowed and the order of the Judicial Greffier giving effect to the Letters of Request set aside.
Authorities
Service of Process and Taking of Evidence (Jersey) Law 1960.
J v K and Others [2016] JRC 110 .
Rules of the Supreme Court 1999.
Service of Process (Jersey) Rules 1994.
Wadman and Another v Dick [1993] JLR 52 .
AD v The C Trust and PW [2010] JRC 001 .
Montrow v Tacon [2007] JCA 144 .
Convention on Mutual Administrative Assistance in Tax Matters 1988.
Rio Tinto Zinc Corp v Westinghouse Elec Corp [1978] 1All ER 434.