The High Court has dismissed an application to set aside an Order for the production of a document by an English non-party, BM Trada, under EU Regulation 1206/2001 (the Evidence Regulation). The document had been requested by the Spanish Court to assist it in determining civil proceedings. BM Trada claimed that by producing the document it would be giving up a trade secret.
Senior Master Fontaine rejected BM Trada’s attempt to rely on the grounds of refusal under Art. 14.1 of the Evidence Regulation, accepting the submissions of AFELMA (the claimant in the Spanish proceedings).
In particular, it was held that Art. 14.1 only applies to requests for oral testimony, and not for the production of documents (at paragraph 47). The Court also confirmed that Art. 14 of the EU Evidence Regulation provides a complete list of grounds to refuse to execute a request. This meant that Art. 14.1 could not be used to rely on any discretionary powers or restrictions under the Evidence (Proceedings in Other Jurisdictions) Act 1975 to refuse the production of the requested document (at paragraph 50).
It was also held to be inappropriate to impose any conditions on the fulfilment of the request for evidence to protect trade secrets as may occur in a purely domestic context. In particular, the Court said it would be inappropriate to allow the document to be redacted, or for restrictions to be imposed on the persons to whom the document could be disclosed (at paragraph 51).
The decision illustrates the robustness of the Evidence Regulation in giving effect to requests for evidence by Member State courts.
James Fox acted as sole counsel for AFELMA instructed by W Legal.
You can view the full judgment here.