Case No: CR 2012 474
Neutral Citation Number: [2012] EWHC 2540 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/09/2012

Before :

THE HONOURABLE MRS JUSTICE LANG DBE
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Between :

	IN THE MATTER OF AN APPLICATION UNDER THE EVIDENCE (PROCEEDINGS IN OTHER JURISDICTIONS) ACT 1975

AND IN THE MATTER OF A CIVIL PROCEEDINGS BEFORE THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK (CASE NUMBER 11-CV-00431 

BETWEEN:
ILLINOIS NATIONAL INSURANCE COMPANY, THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA

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TUTOR PERINI CORPORATION	

           Plaintiffs

         Defendant
	
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CERTAIN UNDERWRITERS AT LLOYD’S
	Third Party	
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David Edwards QC (instructed by Herbert Smith LLP) for 
Shirley Girling, Luke Mayhook & Sarah Gregory
Steven Thompson (instructed by Fox Williams LLP) for the Defendant

Hearing dates: 4 September 2012
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Judgment

Mrs Justice Lang: 
1.	The Applicants, Luke Mayhook and Sarah Gregory, apply under CPR Rule 23.10 to set aside orders made by Master Fontaine, on 28 August 2012, for oral examination pursuant to a Letter of Request of the United States District Court for the Southern District of New York dated 13 August 2012. 
2.	The Applicant Shirley Girling applies to set aside an order for disclosure of documents made by Master Roberts pursuant to the same Letter of Request on 31 August 2012.
3.	Master Fontaine directed that any application to set aside should be referred to a High Court Judge.  This week I am the sole Judge sitting in the Queen Bench Division and therefore I have to ensure that Court time is available for all urgent applications.  Therefore I had to limit the time given allocated to this application in court, and I am not able to prepare a full judgment.  The parties were offered the option of adjourning, with a stay on the three orders, but both parties concluded that it was necessary to proceed today in light of the schedule of the US Court, where a trial is currently listed for 17 September 2012. 
4.	These are summary reasons for the decision which I gave at the end of the oral hearing, namely, that I set aside the three orders made. 
5.	I have had regard to the Applicants’ skeleton argument and evidence, and the authorities produced by the parties.  Because of the short notice of the applications, the Defendant was not able to prepare documentation for this hearing, and Mr Thompson for the Defendant had only limited instructions. 
6.	The Letters Rogatory state, inter alia, that this is a complex insurance coverage dispute involving an alleged loss incurred by Tutor Perini Corporation in connection with the failure of a bus depot façade which they agreed to construct for the Metropolitan Transportation Authority (“the MTA”).  Certain insurance policies were sold to the MTA by the Plaintiffs and certain underwriters at Lloyds also insure Tutor Perini.  Willis Limited is the MTA’s excess broker which placed the policy sold by Lloyds.  Lloyds has denied that Tutor Perini’s claim in connection with the façade failure is covered under the Lloyd’s policy.  Willis Limited, and an affiliated entity in the United States, took part in the negotiation of the premium, terms, conditions, and exclusions of the Lloyd’s policy and maintains copies of policies and related documents.
7.	The Applicants are or were at the material time servants or agents of Willis Limited.
8.	In relation to the order made in respect of Shirley Girling, on the basis of the  submissions set out in her counsel’s skeleton argument and her solicitor’s witness statement, I have concluded that it should be set aside on the following grounds:
i)	the order has been made against her personally whereas it should have been made against Willis Limited.  Willis Limited has refused permission for her to provide those of its documents which are in her possession or control;
ii)	the order must identify the specific documents which she is required to produce; the categories of documents listed are far too broad. 
9.	In relation to the orders for oral examination of Luke Mayhook and Sarah Gregory, on the basis of the submissions set out in their counsel’s skeleton argument and their solicitor’s witness statement, I have concluded that they should be set aside on the following grounds:
i)	the issues on which they are to be examined are not sufficiently specified;
ii)	the issues on which they are to be examined potentially go beyond the issues in the pleaded case;
iii)	in a case of this nature, it is oppressive and unfair for them to be examined without being given advance notice of the documentary evidence which is relevant to the issues on which they are to be questioned.
10.	In relation to all three orders, I do not accept the general submission made by the Applicants that the orders are inappropriate because they are wholly or mainly of an investigatory nature i.e. a fishing expedition. In my judgment these are legitimate lines of enquiry in relation to the US proceedings, and there are reasonable grounds for believing that Willis Limited, its servants or agents, has potentially relevant oral or documentary evidence.
Ruling on Costs
11.	I have carefully considered the submissions of the parties on costs. I consider that this is a case in which costs should follow the event, and therefore Tutor Perini should pay the Applicants’ costs, to be assessed on a standard basis.  I do not accept that Tutor Perini should have a reduced liability for costs because of the circumstances in which the order was made personally against Mrs Girling, nor on the basis that I did not accept all the Applicants’ submissions.  In such a short hearing, where the issues were so interlinked, it is not appropriate to seek to apportion the costs. I reject the submission that the Applicants should be partly deprived of their costs on grounds of unreasonable conduct. 
12.	I do consider that the costs claimed by the Applicants appear excessive and therefore I have ordered a detailed assessment.  I have made orders for payments on account on each application.