[1978] 1 All ER 434

Several utility companies commenced civil proceedings in Richmond, USA, against W, an American corporation, alleging breaches by W of contracts for the supply of uranium. The contracts were fixed price contracts subject only to escalation with increases in the cost of living. In its defence to the proceedings W pleaded that performance of the contracts had been rendered commercially impracticable because of the existence of an international cartel of uranium producers whose activities, W alleged, had caused a lack of supply of uranium and artificially high prices. In September 1976 W received from a private environmental organisation documents relating to the existence and activities of the cartel indicating that two English companies ('the RTZ companies') were members of the cartel. In October 1976 W started civil proceedings in Illinois against the RTZ companies and others for breach of United States anti-trust laws. In order to prove the existence of the cartel in the Richmond434 proceedings, W applied to the Richmond court, in the course of the pre-trial proceedings, for the issue of letters rogatory addressed to the High Court in England. The Richmond court issued two letters rogatory requesting the High Court to summon certain former or present directors or employees of the RTZ companies named in the letters ('the individual witnesses') to attend before an examiner in London to give oral evidence as witnesses in the Richmond actions. The letters also requested that the RTZ companies should produce before the examiner the documents specified in a long schedule to the letters. They included a number of particular documents which, on the face of the descriptions of them, might be in the possession of the RTZ companies or of companies over which they had power, and which appeared to be relevant to the existence of the alleged cartel. However in many instances the description of the particular documents was followed by the wide and vague request for 'any memoranda, correspondence or other documents relevant' to the particular documents described. The letters recited that 'it had been suggested' or 'had been shown' to the Richmond court that justice could not be done among the parties to the Richmond proceedings without the testimony, 'which is intended to be given in evidence at the trial of the actions', of the named individuals or without production of the scheduled documents, that the testimony and documents related to the existence and terms of various agreements, arrangements or practices between the RTZ companies and others, and that the evidence requested was relevant to the matters in issue in the Richmond proceedings. No other grounds were given in the letters to support the assertion that the evidence of the individual witnesses would be evidence relevant to the proceedings or to enable the English court to form a view whether the scheduled documents were in the possession, control or power of the RTZ companies. From the scheduled documents it appeared that some of the individual witnesses had attended or had knowledge of meetings at which matters relevant to the existence of the cartel might have been discussed but in respect of other individual witnesses no such connection with the cartel was shown. On 28 October 1976 a High Court master made an order pursuant to s 2^a of the Evidence (Proceedings in Other Jurisdictions) Act 1975, giving effect to the letters rogatory. The RTZ companies and seven of the individual witnesses ('the appellants') applied to have the order set aside but the order was upheld by the senior master and on appeal by the judge. The appellants appealed to the Court of Appeal. The court dismissed the appeals and ordered execution of the letters rogatory on the ground that both the oral evidence and the documents requested were required for use as evidence in the Richmond proceedings, and the letters were not an attempt to obtain impermissible pre-trial discovery, but the court modified the specification of the documents by striking out the words 'any memoranda, correspondence or other documents relevant' wherever they appeared in the schedule and substituting a different phrase to narrow the range of documents to be produced. The court declared ([1977] 3 All ER 703), however, that the RTZ companies might be entitled to claim the privilege from production conferred by s 14(1)^b of the Civil Evidence Act 1968, since art 15(2) of EEC Council Regulation 17/62 empowered the435 European Commission ('the commission') to impose large fines for breach of the prohibition against cartels contained in art 85 of the EEC Treaty, that those fines constituted a 'penalty' within s 14(1), and that the privilege under s 14(1) was preserved by s 3(1)(a)^c of the 1975 Act. Furthermore, the court declared that the individual witnesses would be entitled to claim the privilege from self-incrimination given by the Fifth Amendment to the United States Constitution, by virtue of s 3(1)(b) of the 1975 Act. In June 1977 the RTZ companies and certain of the individual witnesses attended before the examiner in London and, respectively, claimed privilege under s 14(1) of the 1968 Act, and privilege under the Fifth Amendment. The Court of Appeal ([1977] 3 All ER 717) upheld the RTZ companies' claim to privilege under s 14(1). The examiner referred the individual witnesses' claim to privilege under the Fifth Amendment to the judge of the Richmond court, in accordance with the 1975 Act. On 14 June the judge ruled that the witnesses were entitled to claim the Fifth Amendment privilege and were not required to give any evidence pursuant to the letters rogatory other than their names and addresses. On 15 June the judge received a letter from the United States Department of Justice which stated that the evidence of the witnesses requested in the letters rogatory was required by the department for the purpose of a grand jury investigation set up by it into alleged offences against United States anti-trust laws and the possible institution of criminal proceedings. The statement gave an assurance that the witnesses' testimony would not be used for criminal prosecution of them in the United States. Accordingly the department invited the judge to rule that the witnesses were no longer entitled to the Fifth Amendment privilege. On 12 July the United States Attorney General approved the department's request for the evidence on the ground that the evidence might be indispensable to the grand jury's investigation and was necessary in the public interest and that, as the witnesses were British subjects, it was unlikely that their testimony could be obtained otherwise than under the letters rogatory. The judge declined to rule that the witnesses were no longer entitled to the Fifth Amendment privilege. On 18 July the Department of Justice applied to the judge under United States legislation for orders compelling the witnesses to give evidence under the letters rogatory and the judge granted the orders taking the view that he had no discretion in the matter, but he intimated that the matter should be tested in the English courts. On 25 July one of the individual witnesses declined to answer questions put to him by the examiner pursuant to the letters rogatory and indicated that he would appeal to the English court for a ruling whether the individual witnesses were entitled to claim the Fifth Amendment privilege. The RTZ companies and the individual witnesses appealed to the House of Lords against the Court of Appeal's order that the letters should be executed. W, whilst conceding that the fines imposable under art 15(2) of EEC Council Regulation 17/62 were penalties within s 14(1) of the 1968 Act, cross-appealed against the court's decision upholding the RTZ companies' claim to privilege under s 14(1) on the ground that, as no action had been taken by the commission despite knowledge of the existence of the cartel, the risk to the RTZ companies of proceedings being taken against them by the companies for a fine would not be increased by production of the documents. The individual witnesses appealed to the House of Lords claiming that despite the events which had happened they were entitled to the Fifth Amendment privilege in respect of evidence requested under the letter rogatory. In respect of that appeal, the English Attorney General-intervened to state that it was the policy of Her Majesty's Government that requests by the United States Government for evidence to be given by companies or individuals who were outside the jurisdiction of the United States for the purpose of investigations in the United States into alleged breaches of United States anti-trust law would constitute infringement of the United Kingdom's sovereignty.

436

Held - (i) (Viscount Dilhorne dissenting) Having regard to the substance and terms of the letters rogatory, and to the spirit of the 1975 Act which was to enable judicial assistance to be given to foreign courts, the requests made in the letters should be treated as requests for 'evidence' for the purposes of 'civil proceedings' instituted by the requesting court, ie the Richmond court, within s 1(b)^d of the 1975 Act, and not as requests for pre-trial discovery in the nature of 'fishing' operations which, under the 1975 Act, would have been impermissible requests. Accordingly, insofar as it was possible to do so, the letters should be given effect both in respect of the documents requested (Lord Fraser of Tullybelton dissenting) and the oral evidence of the individual witnesses, and under s 2^e of the 1975 Act it was possible to give effect to the letters by severely reducing the documents which were to be produced and disallowing the evidence of some of the named individuals. The fact that evidence obtained under the letters might be used in other proceedings, ie in the anti-trust proceedings in Illinois, was not (Viscount Dilhorne concurring) a reason for refusing to grant the requests under the letters since the Illinois proceedings were civil proceedings within s 1(b) of the 1975 Act, and in any event once evidence had been given it was in the public domain. It followed that in accordance with the order of 28 October 1976 W would be entitled to proceed with discovery of documents and the examination of the individual witnesses under the letters rogatory subject to any claim to privilege made by the RTZ companies and the witnesses (see p 442 f g, p 444 f to h, p 450 j to p 451 a, p 454 d e and g to j, p 455 g h, p 460 h j, p 462 b c, p 463 h, p 468 f, p 471 b c and e, p 475 j to p 476 a and h j, p 477 b c and e to h and p 478 d and f to h, post); Radio Corpn of America v Rauland Corpn [1956] 1 All ER 549 applied.

   (ii) The RTZ companies were entitled to claim the privilege from production of documents given by s 14(1) of the 1968 Act notwithstanding that the commission had knowledge of the cartel and had not taken any action in respect of it, for if the documents were produced under the letters rogatory the RTZ companies would be exposed to a greater risk of proceedings being brought against them by the commission for recovery of a fine than they were exposed to at present, since production of the documents might authenticate and support the existing information in the hands of the commission and afford conclusive proof of a breach by the RTZ companies of the prohibition against cartels, and might cause the commission to decide to take action against the RTZ companies. Accordingly the Court of Appeal's decision in upholding the claim to privilege under s 14(1) of the 1968 Act had been right (see p 445 b to d, p 456 h to p 457 a and c to f, p 460 j, p 465 b c, p 472 g to p 473 c and p 476 h, post); dictum of du Parcq LJ in Triplex Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 All ER at 617 applied.
   (iii) Furthermore, the individual witnesses were entitled to claim the privilege against self-incrimination given by the Fifth Amendment in respect of the evidence requested under the letters rogatory, since the purpose for which the evidence was sought by the United States Department of Justice was not a purpose for which it could have been obtained by the department under the 1975 Act since it was not required by the department for the purpose of civil proceedings, within s 1(b) of the 1975 Act, and, as criminal proceedings had not yet been instituted by the department, the department could not have requested the evidence under s 5 of the 1975 Act. Accordingly, to enforce the request would be a misuse of the procedure of the 1975 Act. Furthermore, having regard to the declared policy of Her Majesty's Government, the request, being a request by the United States Government for the purpose of investigating activities outside the United States of British companies and individuals who were not subject to United States jurisdiction, in respect of alleged infringement of United States anti-trust laws, constituted an abuse of the sovereignty of the United437 Kingdom (see p 447 f to j, p 448 d to j, p 459 j, p 460 a to c and j to p 461 a, p 466 d and j to p 467 d, p 475 h j and p 476 b to e and h, post).
   (iv) It followed that the appeals of the RTZ companies and the individual witnesses would be allowed, the order of 28 October 1976 giving effect to the letters rogatory would be discharged, and the cross-appeal of W would be dismissed (see p 449 b, p 454 j, p 457 f, p 467 c f, p 476 g h and p 478 j, post).
   Per Lord Wilberforce and Viscount Dilhorne. The word 'evidence' in the 1975 Act does not have a wider meaning than the word 'testimony' in the Foreign Tribunals Evidence Act 1856, and under the 1975 Act the court before acceding to the request of the foreign court must be satisfied that the evidence required is direct evidence for use in the trial in the requesting court as contrasted with information which may lead to the discovery of evidence (see p 442 c and p 450 f to h, post).
   Per Lord Diplock. (i) The words 'civil proceedings' in the phrase 'evidence ... to be obtained for the purposes of civil proceedings' in s 1(b) of the 1975 Act includes all the procedural steps taken in the course of the proceedings from their institution up to and including their completion and if the procedural system of the requesting court provides for the examination of witnesses or the production of documents for the purposes of enabling a party to ascertain whether there exists admissible evidence to support his own case or contradict that of his opponent the High Court has jurisdiction to make an order under the 1975 Act (see p 461 h j to p 462 b, post).
   (ii) Where the High Court has jurisdiction to make an order under the 1975 Act, the court should hesitate long before exercising its discretion in favour of refusing to make an order unless it is satisfied that the application would be regarded as falling within the description of being frivolous, vexatious or an abuse of the process of the court (see p 462 d, post).
   Per Viscount Dilhorne and Lord Diplock. The requirements of s 2(4)(b) of the 1975 Act are not satisfied by the specification of classes of documents. What is called for is the specification of 'particular documents' which means individual documents separately described (see p 455 e to g and p 463 e, post).
   Decision of the Court of Appeal [1977] 3 All ER 703 reversed.
   Decision of the Court of Appeal [1977] 3 All ER 717 affirmed.

Notes
For evidence for proceedings in other jurisdictions, see 17 Halsbury's Laws (4th Edn) paras 326-400, and for cases on the subject, see 22 Digest (Reissue) 665-668, 7111-7123.
   For privilege from giving evidence on the ground of incrimination of witness, see 17 Halsbury's Laws (4th Edn) para 240; for privilege from production of documents exposing a party to penalties, see 13 Halsbury's Laws (4th Edn) para 92; and for cases on the subject, see 22 Digest (Reissue) 433-437, 4310-4344 and 18 Digest (Reissue) 19, 149-151, 97-102, 1195-1231.
   For the Civil Evidence Act 1968, s 14, see 12 Halsbury's Statutes (3rd Edn) 926.
   For the Evidence (Proceedings in Other Jurisdictions) Act 1975, ss 1, 2 and 3, see 45 Halsbury's Statutes (3rd Edn) 483, 484, 486.
   For the EEC Treaty, art 85, and for EEC Council Regulation 17/62, art 15, see 42A Halsbury's Statutes (3rd Edn) 1178, 1197.

438

Interlocutory appeals
On 28 October 1976 Master Creightmore, pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975, and RSC Ord 70, made orders giving effect to two letters rogatory issued by the District Court for the Eastern District of Virginia, Richmond, United States of America ('the Richmond court') on the application of the respondents, Westinghouse Electric Corpn ('Westinghouse'), an American corporation which was the defendant in civil proceedings in the Richmond court brought by utility companies for breach of contract for the supply of uranium, and which were addressed to the High Court in England requesting it to require two British companies ('the RTZ companies') to produce before an examiner in London the documents specified in a schedule to the letters rogatory and to require certain named individuals ('the individual witnesses') who were former or present directors or employees of the RTZ companies, to give oral evidence before the examiner. The evidence sought by the letters rogatory was required by Westinghouse for the purpose of its defence to the Richmond court proceedings that it had been unable to fulfil the contracts for the supply of uranium because of the activities of an international cartel of uranium producers which included the RTZ companies. On appeal by the RTZ companies and the individual witnesses the orders of 28 October were upheld by Master Jacob, on 22 February 1977 and by MacKenna J on 10 May. The RTZ companies and individual witnesses appealed to the Court of Appeal ([1977] 3 All ER 703) which, on 26 May, affirmed the orders of 28 October 1976 with variations. At the request of the parties the court declared that, before the examiner, the RTZ companies might be able to claim privilege from production of the documents, under s 14(1) of the Civil Evidence Act 1968 by virtue of s 3(1)(a) of the 1975 Act, on the ground that production would tend to expose them to a penalty within s 14(1), ie to fines imposable by the European Commission for breach of the prohibition against cartels contained in art 85 of the EEC Treaty. The court also declared that, before the examiner, the individual witnesses would be entitled to claim the privilege from self-incrimination given by the Fifth Amendment to the United States Constitution, by virtue of s 3(1)(b) of the 1975 Act. The Court of Appeal granted both sides leave to appeal to the House of Lords but refused to grant a stay of the order giving effect to the letters rogatory pending the appeal.
   In June 1977 the RTZ companies and the individual witnesses attended before the examiner in London and, respectively, claimed privilege from production of the documents specified in the schedule, under s 14(1) of the 1968 Act, and the privilege given by the Fifth Amendment. Westinghouse appealed to the Court of Appeal for an order compelling the RTZ companies to produce the documents and on 11 July 1977 the court ([1977] 3 All ER 717) upheld the RTZ companies' claim to privilege and refused Westinghouse leave to appeal against that decision. The examiner referred the claim to the Fifth Amendment privilege of the individual witnesses to the judge of the Richmond court, as the examiner was entitled to do under the 1975 Act, and on 14 June the judge ruled that the individual witnesses were entitled to the Fifth Amendment privilege. On 18 July, at the instance of the United States Department of Justice, the judge made orders compelling the individual witnesses to give evidence439 under the letters rogatory for the purposes of an investigation by the department into possible offences against United States anti-trust laws. On 27 July the Appeal Committee of the House of Lords granted the individual witnesses a stay of the order of 26 May of the Court of Appeal, giving effect to the letters rogatory, pending the hearing of the appeals of the RTZ companies and the witnesses against that order. Westinghouse cross-appealed against the decision of 26 May insofar as it declared that exposure of the RTZ companies to proceedings for a fine by the European Commission would entitle them to claim the privilege under s 14(1) of the 1968 Act. Westinghouse also appealed against the decision of the Court of Appeal of 11 July upholding the RTZ companies' claim to privilege. All the appeals were heard together. The facts are set out in the opinion of Lord Wilberforce.

1 December 1977. The following opinions were delivered.

LORD WILBERFORCE. My Lords, on 28 October 1976 an ex parte order was made in the High Court, Queen's Bench Division, under s 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, giving effect to letters rogatory issued out of the United States District Court for the Eastern District of Virginia, Richmond Division, at the instance of Westinghouse Electric Corpn ('Westinghouse'). In the Richmond court Westinghouse are defendants in a number of actions (civil proceedings) consolidated in that court, by utility companies producing electricity, alleging breaches of contract by Westinghouse for the supply of uranium and claiming very large sums in damages. Westinghouse put forward (inter alia) a defence of commercial impracticability arising from an alleged uranium producers' cartel.
   The letters rogatory, issued on 21 October 1976 and addressed to the High Court of Justice in England, seek the examination of nine named persons described as present or former directors or employees of two British companies, the Rio Tinto Zinc Corpn Ltd ('RTZ') and RTZ Services Ltd ('RTZ Services'), which collectively I shall refer to as 'the RTZ companies', or of 'such other director or other person who has "knowledge of the facts as to which evidence is desired"'. The letters also seek the production of documents according to a lengthy schedule alleged to be in the possession of the RTZ companies. The present appeals are brought by the RTZ companies and seven of the nine named persons, the other two being out of the jurisdiction. In effect they seek to have the order giving effect to the letters rogatory set aside or discharged.
   Since the order of 28 October 1976 there have been a number of applications to the English courts and appeals arising therefrom. The appellants sought to have the order set aside but their application to that effect was rejected by the High Court. On 26 May 1977 the Court of Appeal ([1977] 3 All ER 703, [1977] 3 WLR 430) (1) dismissed an appeal against that rejection but ordered that the schedule of documents attached to the letters rogatory should be amended by the deletion of certain categories of documents. The court also ruled, in favour of the RTZ companies, (2) that penalties provided for by art 15 of EEC Council Regulation 17/62 for breach of arts 85 and 86 of the EEC Treaty (which deals with restrictive or concerted practices) constituted a 'penalty' within the meaning of s 14 of the Civil Evidence Act 1968 so as to provide the foundation for a440 claim for privilege against the production of documents. The RTZ companies now appeal against the first part of this order and Westinghouse against the second.
   Since that decision of the Court of Appeal there have been two further developments. The first of these concerns a claim by the individual witnesses to privilege under the law of the United States, viz the fifth article of amendment to the Constitution (self-incrimination)^f. I shall state the facts relevant to this claim later when I come to consider it. The second concerns the documents. On 10 June 1977, in proceedings under the letters rogatory at the United States Embassy in London, the RTZ companies, pursuant to the judgment of the Court of Appeal ([1977] 3 All ER 703, [1977] 3 WLR 430) of 26 May 1977, claimed privilege against production of all (save six) of the scheduled documents on the ground that production would tend to expose the RTZ companies to proceedings for the recovery of a penalty (s 14 of the Civil Evidence Act 1968). This claim was challenged by Westinghouse but on 11 July 1977 the Court of Appeal ([1977] 3 All ER 717, [1977] 3 WLR 492) upheld it. By leave of this House Westinghouse now appeals against that judgment.

   There are thus three main issues before the House. 1. Ought the order of 28 October 1976 giving effect to the letters rogatory to have been set aside? 2. Can the RTZ companies claim privilege against production of the scheduled documents? 3. Can the individual witnesses claim privilege against self-incrimination under the law of the United States?
   The law in England which provides for giving effect to letters rogatory is the Evidence (Proceedings in Other Jurisdictions) Act 1975 ('the 1975 Act'). Before 1975 this matter was regulated by the Foreign Tribunals Evidence Act 1856, as amended and supplemented by various later statutes. The 1975 Act was passed in order inter alia to give effect to the principles of the Hague Convention on the Taking of Evidence abroad in Civil or Commercial Matters of 1970^g which the United Kingdom ratified in 1976. The 1975 Act is, as I think, clear in its terms so that reference in aid of interpretation to previous statutes is not required. But one background matter requires mention in order that the 1975 Act, particularly s 2, may be understood. This arises from the United States pre-trial procedure, as laid down in the Federal Rules of Civil Procedure and particularly rr 26 and 30. These rules give wide powers, wider than exist in England, of pre-trial discovery against persons not parties to a suit. (The RTZ companies are not parties to the Richmond proceedings.) The nature of these powers was well summarised by Devlin J in Radio Corpn of America v Rauland Corpn ([1956] 1 All ER 549 at 551, [1956] 1 QB 618 at 643, 644) as follows:

   That case, not dissimilar on its facts from the present, arose under the 1856 Act, s 1 of which referred to the obtaining of 'testimony'. The decision was that there was a distinction between 'direct' material immediately relevant to the issue in dispute, as to which testimony could be obtained, and 'indirect' material by way of discovery, testimony for which could not be obtained. There is no doubt that this distinction was in the mind of the draftsman of the 1975 Act.
   In the first place, the 1970 convention by art 23 enabled a contracting state to declare that it would not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents. The United Kingdom in fact made a declaration to this effect coinciding with s 2(4) of the 1975 Act. In the 1975 Act itself, s 1 refers to 'evidence' in place of 'testimony' but if there is any difference between the two words it must be in the sense of 'directness' rather than the reverse. The distinction drawn in the Radio Corpn case is preserved in s 2(3) and (4) of the 1975 Act. Subsection (3) states that an order (sc of the English High Court) giving effect to the request-

and sub-s (4) that an order under s 2 shall not require a person-

   These provisions, and especially the words 'particular documents specified in the order' (replacing 'documents to be mentioned in the order' in the 1856 Act) together with the expressed duty of the English court to decide that the documents are or are likely to be in the possession, custody or power of the person called on to produce, show in my opinion that a strict attitude is to be taken by English courts in giving effect to foreign requests for the production of documents by non-party witnesses. They are, in the words of Lord Goddard CJ, not to countenance 'fishing' expeditions: Radio Corpn of America v Rauland Corpn ([1956] 1 All ER 549 at 554, [1956] 1 QB 618 at 649).
   My Lords, I have referred to these background matters because misinformation as to some of them appears to have influenced the Court of Appeal. Lord Denning MR referred to a submission for RTZ that the case was similar to the Radio Corpn case, and that the letters rogatory ought to be rejected. He referred to the Hague Convention and said that the United Kingdom when it ratified the convention did not make any declaration under art 23. (Unfortunately the print of Command Paper 3991 does not contain the reservation.) So he could not accept counsel's general submissions. Roskill LJ seems to have been under the same impression for he too put the Radio Corpn case on one side. I think that the Court of Appeal, while correctly stating that the 1975 Act was a new Act, may have been led to treat it as dealing more liberally than its predecessor with pre-trial discovery. I do not so regard the Act; on the contrary, it appears to me that it takes a stricter line.
   The other argument accepted by the Court of Appeal against total rejection of the letters rogatory was based on the terms of the letters rogatory and some observations by the learned United States district judge at Richmond (Judge Merhige). The letter in relation to RTZ recites that-

442

(My emphasis.)
   The letter in relation to RTZ Services is in similar form except that for the words 'it has been suggested to us' there are substituted 'it has been shown to us'-the difference suggesting that neither phrase is significant. Both letters rogatory were drafted by lawyers for Westinghouse and, as they frankly claimed, were drafted after consultation with eminent counsel from England. 'The phrasing of the letters rogatory themselves ... are the product of those gentlemen's experience and knowledge.' It does not take much percipience to see that the words italicised are directed to the distinction drawn by Devlin J in the Radio Corpn of America case ([1956] 1 All ER 549 at 551, [1956] 1 QB 618 at 645) between 'a process by way of discovery and testimony for that purpose' and 'testimony for the trial itself'. But which it is in fact is not to be determined by the drafting of Westinghouse's lawyers but objectively by the nature of the testimony sought. The fact that any evidence obtained is intended to be put in at the trial is quite consistent with the enquiry extending (impermissibly) to trains of enquiry which might produce such evidence.
   My Lords, I have much doubt whether the letters rogatory ought not to be rejected altogether. They range exceedingly widely and undoubtedly extend into areas, access to which is forbidden by English law. As regards some at least of the individual witnesses no grounds are given for supposing that they could have any relevant evidence to give (I have already commented on the words 'it has been shown to us'). As regards the schedule of documents, this extends far beyond 'particular documents specified in the order', includes categories and classes of documents which, though obtainable under an English order for discovery, cannot be called for under the 1975 Act and provides little or no material as to many of the scheduled documents, apart from the statement in the letters rogatory themselves, which would enable the English court to form a view whether or not they are or are likely to be in the possession, custody or power of the RTZ companies.
   On the other hand, the schedule does list a number of particular and specified documents. These documents (many of which appear to be copies of originals not listed) came into the possession of Westinghouse from an environmentalist group in September 1976 and are claimed to amount to hard evidence of a uranium producers' cartel. Some of these, on the fact of the descriptions, or copies, or originals of them, might be in the possession of one of the RTZ companies or of a subsidiary over which they have power, and many of them appear on the face of the description to be relevant to the existence or terms of a uranium cartel. It is possible that the existence and terms of a uranium cartel may be relevant to Westinghouse's defence of commercial impracticability in the Richmond proceedings. The Court of Appeal, as regards the scheduled documents, applied a 'blue pencil', ie it deleted (as under s 2 of the 1975 Act it is entitled to do) a number of items, and (more doubtfully) substituted for the words 'relating thereto' the words 'referred to therein'. For my part I would have applied the blue pencil still more vigorously so as to leave in the schedule only 'particular documents specified' together with replies to letters where replies must have been sent. But this leaves the question whether any 'blue-pencil' approach is443 appropriate in relation to this request or whether the whole request is so far reaching and so far of the nature of 'fishing' that, even though a portion of it can be salved, it ought to be rejected out of hand, or should the court, which under the 1975 Act has powers to limit its action to what it considers appropriate, make an order confined to what can be supported under the Act. Before I give my answer on this issue, I must deal with the position as regards the individual witnesses and with a separate argument.
   As regards the named individual witnesses, the position can be broadly stated. There are some individuals employed by one or other of the RTZ companies who appear from the scheduled documents to have attended or to have knowledge of meetings of uranium producers at which matters relevant to the existence of a cartel may have been discussed. In the case of others (a minority) no connection is shown between them and any such meeting or any scheduled document. So the question again is whether there is sufficient basis for the assertion that there is testimony of some identified individuals which is needed for the trial or whether the generality of the request invalidates the whole application.
   The separate argument arises in this way, On 15 October 1976, soon after the 'environmentalist' documents reached them, Westinghouse commenced in the United States District Court for the Northern District of Illinois Eastern anti-trust proceedings against the RTZ companies and 27 other alleged members of a uranium cartel. Westinghouse claimed, in accordance with United States anti-trust legislation, treble damages against all defendants. The RTZ companies have not accepted jurisdiction in these proceedings and have taken no part in them. The letters rogatory in the Richmond actions were requested on the same day. This coincidence has given rise to a contention by the RTZ companies that the real, or predominant, purpose of the letters rogatory is to further the anti-trust proceedings, and that as those proceedings are of a penal character, because of the treble damages claim, the letters rogatory should not be acceded to. I need not express any opinion whether if the letters rogatory had been issued in the Illinois proceedings they could be implemented in England, for I am of opinion that the appellants' argument fails at an earlier stage. Unless a case of bad faith is made against Westinghouse (which is expressly disclaimed) it is impossible to deny that the letters rogatory were issued for the purposes of obtaining evidence in the Richmond proceedings. The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested: all evidence, once brought out in court, is in the public domain, and to accept the argument would largely stultify the letters rogatory procedure. I must therefore reject this separate contention, and express my conclusion on the other factors. This is that, on the whole, I am of opinion that following the spirit of the 1975 Act which is to enable judicial assistance to be given to foreign courts, the letters rogatory ought to be given effect to so far as possible and that it would be possible to give effect to them subject to a severe reduction in the documents to be produced and to the disallowance of certain of the witnesses. Exactly what these should be I need not specify in view of my conclusions on other aspects of the case. It is enough to say that agreeing in principle, if not totally in detail, with the Court of Appeal, I would not set aside the order of 28 October 1976 on the ground that it provided for illegitimate discovery.
   2. I now deal with the question whether the RTZ companies can claim privilege against production of the documents requested under s 14 of the Civil Evidence Act 1968. This, as s 3(1)(a) of the 1975 Act makes clear, is a matter of English law. I shall deal with it briefly because I agree with the decisions of the Court of Appeal of 26 May 1977 ([1977] 3 All ER 703, [1977] 3 WLR 430) and 11 July 1977 ([1977] 3 All ER 717, [1977] 3 WLR 492) and I am satisfied with their reasoning. These judgments establish: (a) that fines imposable by the Commission of the European444 Communities under arts 85 and 86 of the EEC Treaty and art 15 of EEC Council Regulation 17/62 are penalties; this was not disputed in this House; (b) that s 14 of the 1968 Act is not limited to such penalties as are imposed as the result of proceedings; but covers penalties imposed by administrative action and recoverable by proceedings. (c) that since these penalties are recoverable under English law by virtue of the European Communities Act 1972 they are 'penalties provided for by such law' (Civil Evidence Act 1968, s 14(1)(a)); (d) that production of the documents would tend to expose the RTZ companies to proceedings for the recovery of a penalty, nonetheless though the commission: (i) has knowledge of the 'environmentalist' documents; (ii) has extensive powers of investigation; (iii) has a duty to enforce arts 85 and 86 of the EEC Treaty: see art 89.
   I base that conclusion in part on evidence which was before and considered by the High Court and the Court of Appeal and in part on the proposition that the tendency to expose to a penalty would be increased if the documents in question were to be validated and connected with the RTZ companies by sworn evidence, as opposed to being, as they are now, pieces of paper found in a file. The test of this proposition, which was in effect and correctly applied by the Court of Appeal, was that laid down in Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd.
   In my opinion the RTZ companies make good their claim to privilege against production of the scheduled documents except those conceded and quoad those documents the order cannot be implemented.
   3. The individual witnesses claim privilege against giving any oral evidence on the ground that to do so might incriminate them. This claim attracts the protection of the fifth article of amendment to the United States Constitution. Since it is a claim for privilege under United States law, its validity has to be determined as if it had been made in civil proceedings in the United States of America (s 3(1)(b) of the 1975 Act).
   It is necessary to state the facts in detail since this is a matter which has arisen since the judgment of the Court of Appeal.
   On 8 June 1977 one of the individual witnesses, Kenneth Bayliss, attended at the United States Embassy in London before a consular officer designated to take evidence under the letters rogatory. He claimed privilege under the Fifth Amendment. After argument, the officer did not direct the witness to answer as she had power to do under s 3(2) of the Act of 1975. Instead she permitted guidance to be sought from Judge Merhige, the judge in charge of the Richmond proceedings, by telephone. Judge Merhige came to London in order to rule on this question and sat at the United States Embassy from 13-16 June. All the seven witnesses claimed the Fifth Amendment privilege and on 14 June 1977 Judge Merhige ruled that the privilege was well taken and that the witnesses need answer no questions except to give their names and addresses. There can be no doubt that this ruling has the status of a decision of the competent United States district court.
   On 15 June 1977 Judge Merhige received a letter from the United States Department of Justice stating that the department required the evidence of the witnesses for the purposes of a grand jury investigation. This investigation had been started early in 1976 into possible violations of United States anti-trust laws by members of the alleged uranium cartel. A grand jury had been empanelled in Washington DC in June 1976 to pursue this investigation and to initiate criminal proceedings if thought fit. It was represented in the letter that depositions taken pursuant to the letters rogatory might well be the sole opportunity for the grand jury to obtain information vital to its investigation. Further it was represented that the Department of Justice would not utilise the testimony of any of the named witnesses as the basis for a criminal prosecution of that witness in the United States. On 16 June 1977 a representative of the United States Attorney General appeared before Judge Merhige and stated that it was the firm policy of the Department of Justice not to make any445 application in a civil case to which the United States Government was not a party for an order under 18 United States Code ¤ ¤ 6002 and 6003 (see below) and that accordingly such an order had not been sought and was not intended to be sought. However, Judge Merhige was invited to rule that, in the light of the representation contained in the letter, the Fifth Amendment privilege was no longer available. Judge Merhige declined to accede to this invitation and ruled that the privilege was still effective. This ruling also has the status of a decision of the competent United States district court.
   However, notwithstanding its 'firm policy', the United States Department of Justice on 18 July 1977 made application to Judge Merhige in Richmond for an order to compel testimony under 18 United States Code ¤ ¤ 6002 and 6003. These provisions are, so far as relevant, as follows:

The request was accompanied by two letters.
   (i) A letter dated 11 July 1977 signed by the Deputy Assistant Attorney General, Anti-Trust Division, to the United States Attorney, Eastern District of Virginia. It was headed 'Grand Jury Investigation of the Uranium Industry'. It authorised the addressee to apply to Judge Merhige, pursuant to ¤ ¤ 6002 and 6003 requiring a named witness 'to give testimony or provide other information in the above matter and in any further proceedings resulting therefrom or ancillary thereto'. (My emphasis.)
   (ii) A letter dated 12 July 1977 signed by the Attorney General of the United States also addressed to the United States Attorney, Eastern District of Virginia, stating that the writer concurred in the request. This letter contained the following:

   On 18 July 1977 Judge Merhige, as he was obliged to do under ¤ 6003(a), made an order in respect of each of the witnesses named compelling his testimony in the terms provided for by ¤ ¤ 6002 and 6003. He expressed the opinion that the matter of sanctions might be tested in the English court and said that he encouraged that course. On 25 July 1977 the witness Bayliss attended at the United States Embassy in London and declined to answer questions put to him on the ground that he wished to seek the assistance of the English court. It is now for this House, on these appeals, to decide whether, in the light of this situation, the letters rogatory should be given effect to so far as regards these witnesses.
   My Lords, it is my clear opinion that effect should not be so given. The position is that so far as the civil proceedings in Richmond, Virginia, are concerned, a ruling was given by the learned district judge that the witnesses were entitled to the Fifth Amendment privilege. Though the procedure followed was, in certain respects which I need not particularise, short-circuited in the interest of time saving, there is no doubt that the course taken, with agreement of the parties, was in accordance with the 1975 Act. The ruling was given by the competent judicial authority that the evidence sought was evidence which the witnesses could not be compelled to give in civil proceedings in the country in which the requesting court exercises jurisdiction (s 3(1)(b) of the 1975 Act). I am not prepared to go so far as to say (as the appellants submitted) that thereafter the requesting court was functus officio, or the letters rogatory exhausted: the procedure allows of sensible flexibility. But when a considered ruling in law has been given and not displaced by appeal, it is necessary to look very carefully at action which is said to negative that ruling.
   The action relied on is the order made by the district judge under the provisions of 18 United States Code ¤ ¤ 6002 and 6003. Looking at this order and the application for it, there is no doubt as to its character and purpose. This is shown beyond doubt by the letters of 15 June and 11 and 12 July, documents of complete frankness and totally without subterfuge or disingenuousness. The evidence to obtain which the order was made and the immunity granted was on the face of these documents evidence required for the grand jury investigation set up by the United States Department of Justice, Anti-Trust Division. This is the first objection: the request for it does not comply with s 1(b) of the 1975 Act, so that to use the procedure of the 1975 Act in order to obtain the evidence is a misuse of that procedure. Secondly, the evidence, as the letters explicitly state, is sought for the purpose of a grand jury investigation which may lead to criminal proceedings (see above). Now s 5 of the 1975 Act provides for the obtaining of evidence for criminal proceedings but expressly the section only applies to proceedings which have been instituted (none have been instituted) and, impliedly, to a request by the court in which the proceedings have been instituted. The case is therefore not within s 5, and the procedure is an attempt to get the evidence in spite of that fact. Thirdly, the evidence is sought for the purpose of an anti-trust investigation into the activities of companies not subject to the jurisdiction of the United States. I think that in such circumstances the courts would properly, in accordance with accepted principle, refuse to give effect to the request on the grounds that the procedure of the 1975 Act was being used for a purpose for which it was never intended and that the attempt to extend the grand jury investigation extra-territorially into the activities of the RTZ companies was an infringement of United Kingdom sovereignty: see British Nylon Spinners Ltd v Imperial Chemical Industries Ltd. 447But in the present case, there has been an intervention by Her Majesty's Attorney General on behalf of the Government of the United Kingdom. In this intervention the Attorney General brought to the notice of your Lordships the following matters.
   (a) Her Majesty's Government considers that the wide investigatory procedures under the United States anti-trust legislation against persons outside the United States who are not United States citizens constitute an infringement of the proper jurisdiction and sovereignty of the United Kingdom.
   (b) That the grand jury have issued a subpoena to Westinghouse requiring that company to produce to the grand jury documents and testimony obtained in discovery in the Virginia proceedings. Therefore evidence given in pursuance of the letters rogatory will be available to the United States Government for use against a United Kingdom company and United Kingdom nationals in relation to activities occurring outside United States territory in anti-trust proceedings of a penal character.
   (c) That the intervention of the United States Government followed by the grant of the order and immunity of 18 July 1977 shows that the execution of the letters rogatory is being sought for the purposes of the exercise by United States courts of extra-territorial jurisdiction in penal matters which in the view of Her Majesty's Government is prejudicial to the sovereignty of the United Kingdom.
   My Lords, I think that there is no doubt that, in deciding whether to give effect to letters rogatory, the courts are entitled to have regard to any possible prejudices to the sovereignty of the United Kingdom; that is expressly provided for in art 12(b) of the Hague Convention^h. Equally, that in a matter affecting the sovereignty of the United Kingdom the courts are entitled to take account of the declared policy of Her Majesty's Government is in my opinion beyond doubt. Indeed, this follows as the counterpart of the action which the United States Government has taken. For, as the order of 18 July 1977 and the letter of 12 July 1977 make plain, the order compelling testimony and granting immunity is made in extraordinary circumstances relating to the public interest of the United States. That the making of the order is a matter of government policy, and not related to the civil proceedings in Richmond, is confirmed beyond doubt by the statement made before Judge Merhige on 16 June 1977, and repeated in the letter of the Attorney General of the United States of 12 July 1977, that there is a firm policy against seeking orders under ¤ ¤ 6002 and 6003 in private litigation. It appears that the present is the only case in which such an order has been made. (One other instance cited is not comparable.) But if public interest enters into this matter on one side, so it must be taken account of on the other; and as the views of the executive in the United States of America impel the making of the order, so must the views of the executive in the United Kingdom be considered when it is a question of implementing the order here. It is axiomatic that in anti-trust matters the policy of one state may be to defend what it is the policy of another state to attack.

   The intervention of Her Majesty's Attorney General establishes that quite apart from the present case, over a number of years and in a number of cases, the policy of Her Majesty's Government has been against recognition of United States investigatory jurisdiction extra-territorially against United Kingdom companies. The courts should in such matters speak with the same voice as the executive (see The Fagernes; they have, as I have stated, no difficulty in doing so.
   For these reasons, I am of opinion that recognition should not be given to the order of 18 July 1977 granting immunity to the individual witnesses, that the matter should be treated as governed by the ruling, properly given in the civil proceedings in question, of 14 June 1977 that the witnesses were entitled to privilege under the Fifth Amendment.

448

   A further point was taken by the appellants that the individual witnesses should not be compelled to give evidence which would, in effect, remove the corporate privilege of their company against production of documents, an argument, in effect, that evidence that cannot be obtained directly from the companies should not be obtainable indirectly through their employees. This raised some novel and interesting contentions which may merit consideration in another case, or by the Law Commission. It is unnecessary, and therefore inappropriate, to decide on it now.
   I would allow the appeals of the RTZ companies and of the individual appellants and order that the order giving effect to the letters rogatory be discharged. I would dismiss the appeals of Westinghouse. I would order Westinghouse to pay the appellants' costs of the appeals and cross-appeals in this House.

VISCOUNT DILHORNE. My Lords, on 18 March 1970 the United Kingdom signed at The Hague a conventionⁱ 'on the Taking of Evidence abroad in Civil or Commercial Matters' designed 'to improve mutual judicial co-operation in civil or commercial matters'. It was ratified on 16 July 1976. Among the other states which signed and ratified the convention was the United States. Article 1 of the convention stated that a letter of request should not be used to obtain evidence not intended for use in judicial proceedings commenced or contemplated. Article 12 stated that the execution of a letter of request might be refused only to the extent that the execution of the letter did not fall within the functions of the judiciary of the state to which the request was directed, or that state considered that its sovereignty or security would be prejudiced thereby. Article 23 stated that a contracting state might at the time of signature, ratification or accession declare that it would not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries.

   Pursuant to that article, Her Majesty's Government on ratifying the convention declared that the United Kingdom would not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents and understood letters which required a person-

   To enable the United Kingdom's obligations under the convention to be implemented, the Evidence (Proceedings in Other Jurisdictions) Act 1975 (hereafter referred to as 'the 1975 Act') was passed. That Act went further than was necessary for the purposes of the convention for it made provision for the taking of evidence not only for civil or commercial proceedings but also for criminal proceedings.
   In the interests of comity, it is, and I trust will continue to be, as Lord Denning MR said in this case in the Court of Appeal ([1977] 3 All ER 703 at 708, [1977] 3 WLR 430 at 436), 'our duty and our pleasure to do all we can to assist' the requesting court.
   The powers possessed by United Kingdom courts in this regard are now contained and defined in the 1975 Act which, its long title states, was 'to make new provision for enabling the High Court ... to assist in obtaining evidence required for the purposes of proceedings in other jurisdictions'. Section 1 of that Act provides that449 where an application is made for an order for evidence to be obtained in the United Kingdom-

then, and I stress only then, has the court the powers conferred by the following provisions of the Act and is it able to give effect to the request.
   So the first question that a court must consider when such an application is made is whether it is satisfied that each of these conditions is fulfilled.
   In Radio Corpn of America v Rauland Corpn the letters rogatory, which emanated from the President of the United States, stated that 'the testimony of the following witnesses' (and then followed a long list of members of boards of directors of English companies), was 'necessary in the trial of the issues in the said cause and without the testimony of whom justice cannot be completely done between the parties'. The production of documents was also asked for. Despite the statement in the letters rogatory that such testimony was necessary at the trial, the Divisional Court held that what was being sought was material relating to pre-trial discovery, material which might lead to a line of enquiry which itself would disclose relevant material, and that it had not been shown that the United States court was desirous of obtaining 'testimony' (the word in the Foreign Tribunals Evidence Act 1856, s 1, new replaced by 'evidence' in the 1975 Act) 'which is in the nature of proof for the purpose of the trial', and that consequently the court had no jurisdiction to make the order sought. In the course of the argument Lord Goddard CJ ([1956] 1 QB 618 at 641) said that the court had to look at the substance of the matter and regard was had to what was said in the court in Illinois when the letters rogatory were issued. In his judgment, he said ([1956] 1 All ER 549 at 554, [1956] 1 QB 618 at 649) that it was an endeavour to get in evidence by examining people who may be able to put the parties in the way of getting evidence. 'That' he said 'is mainly what we should call a fishing proceeding which is never allowed in the English courts.'
   I do not think that 'evidence' in the 1975 Act has a different meaning from 'testimony' in the 1856 Act. The distinction drawn in that case and in the cases cited therein between the obtaining of evidence for use in a trial and the obtaining of information which might lead to the procurement of evidence is equally relevant in construing the 1975 Act. In that Act and in the convention the emphasis is on the obtaining of evidence. If the court is not satisfied that evidence is required, direct evidence for use at a trial as contrasted with information which may lead to the discovery of evidence, however much the court may be disposed to accede to the request, it has no power to do so. As I see it it has no discretion in the matter.
   In this case no difficulty arises with regard to s 1(a). It is clearly satisfied.
   The appellants contend that s 1(b) is not. They say that the letters rogatory are directed to obtaining information from and discovery by persons not parties to the litigation in Richmond, Virginia, which might lead to the procurement of evidence; that it is sought primarily for the purpose of civil proceedings brought by the respondents against the appellant companies and others in Illinois and now also for a grand jury empanelled in Washington DC.
   The material put before us does not suffice to enable me to decide that use in the Illinois proceedings is the respondents' predominant purpose. If it is, and it may well be, that would not in my opinion prevent s 1(b) being satisfied for it is not disputed450 that what is being sought is for the purpose of the civil proceedings in Richmond, and the proceedings in Illinois are civil proceedings.
   Between 1966 and 1974 the respondents entered into a number of contracts under which they undertook to supply 79 million lbs of uranium in the period up to and including 1994. They were fixed price contracts subject to escalation with increases in the cost of living. By 1976 the price of uranium had risen from about $6 a lb in 1973 to about $41 a lb. The respondents had not covered themselves against this liability and by September 1975 were short of approximately 75 million lbs of uranium. In that month they gave notice to the other parties to these contracts that they would be unable to carry them out with the consequence that 16 utility companies started actions against them in which a sum in the region of $2,000 million was claimed. On the respondents' application 13 of these actions were consolidated in the United States District Court at Richmond for the purpose of the pre-trial procedures.
   In their defence to these actions the respondents relied on the defence of 'commercial impracticability' under ¤ 2-615 of the United States Uniform Commercial Code and asserted the existence of an international cartel of uranium producers which they alleged had had a serious impact on the uranium market and had caused artificially high prices. They admit that at that time they had not any hard evidence of the existence and activities of the cartel.
   In March 1976 the United States Department of Justice started an investigation into possible violations of the United States anti-trust laws by members of the cartel and in June 1976 a grand jury was empanelled to pursue this investigation and to initiate criminal proceedings should that be warranted.
   The convention made no provision for obtaining evidence for the purpose of criminal proceedings and under s 5 of the 1975 Act an order can only be made for the purpose of obtaining evidence for criminal proceedings where proceedings have been instituted. So no order could be made for the obtaining of evidence to go before the grand jury.
   In September 1976 the respondents received through an organisation called 'The Friends of the Earth' documents relating to the existence and activities of such a cartel, of which the RTZ companies with uranium producers (including governments) from France, Canada, Australia and South Africa were members.
   On 15 October 1976 the respondents started civil proceedings for breach of anti-trust laws in Illinois against the RTZ companies and many others. In that action they claimed treble damages, a sum in the region of US $6,000 million.
   On the same day, in the course of the pre-trial proceedings in Richmond, they filed applications for the issuance of letters rogatory seeking the taking of depositions and the production of documents in Canada, Australia and the United Kingdom. The plaintiffs in the actions in Virginia lodged a memorandum in opposition in which they alleged (1) that the court had a discretion whether to issue the letters; (2) that the information sought was irrelevant, one ground for that assertion being that the cartel deliberately excluded the United States market and its existence had been known to the respondents for more than four years; (3) that the issuance of the letters would cause substantial delay in the preparation of the cases for trial; (4) that the depositions and documents sought were 'really in aid of Westinghouse's claim ... in its anti-trust action'; and (5) that the granting of the letters rogatory would be a futile act as, if the letters rogatory were issued in the form sought, they would not be honoured by the courts of England.
   The application was heard by Judge Merhige at Richmond on 21 October. It was contended for the respondents that the issuance of the letters was a matter of routine and that the court had no discretion as to it. In the course of the argument their counsel said: 'As far as exploring areas of possible evidence abroad is concerned, it would be done with despatch', and 'We are here seeking to discover critical evidence to the defence in this case from several of the international giants in the mining and milling business.'

451

   It appears that American pre-trial discovery operates over a far wider field than discovery in this country. Parties may obtain discovery regarding any matter not privileged-

And such discovery may be obtained from persons not parties to the action.
   The applications were made in the course of pre-trial proceedings and the shorthand notes of the hearing do not reveal that there was any consideration of the law of England or regard to the difference between the obtaining of evidence in the strict sense and the obtaining of information which might lead to the obtaining of evidence. Counsel for the respondents told the judge that the phrasing of the letters was in accordance with the advice of eminent counsel and that their form was 'acceptable in these foreign jurisdictions'. Most of the discussion appears to have been on the effect the issuing of the letters would have in causing delay in the trial.
   The judge who said that he did not see the relevance of the material sought and who did not say whether or not he had any discretion in the matter, issued the letters in the form submitted by the respondents.
   In the circumstances it seems to me probable that the issuing of the letters was regarded as a step in the normal process of discovery in American courts which included the obtaining of material which might lead to the obtaining of evidence; in other words, what we would call a 'fishing' operation. Support for this view is to be found in the observations of the respondents' counsel cited above.
   The two letters rogatory were similar in all material respects. It will suffice to consider one of them and I must do so in some detail in view of their importance.
   Each contained recitals, one saying-

Then five persons are named and the recital goes on-

Then follow the names of 40 companies of which 26 were Canadian, Australian, South African, French and English.
   The letter goes on:

452

   These recitals were followed by the request that the persons named 'or other person having knowledge of the facts' should be caused to appear before any consul or other consular officer of the United States 'to be examined orally as a witness in the above entitled actions' as to 'the existence and terms of the above-mentioned agreements, arrangements or concerted practices'.
   This was followed by the request that the proper officer of RTZ should be ordered to produce 'the documents enumerated in Schedule B hereto, being documents which appear to be or to be likely to be in the possession, custody or power of' that company.
   Schedule B contains 73 paragraphs of which no less than 57 ended with the words 'and any memoranda, correspondence or other documents relating thereto'. I do not propose to refer in any detail to the contents of each paragraph. The pattern followed appears to have been to relate each paragraph to a letter or meeting or agenda etc of which the respondents had received information from the Friends of the Earth organisation, and then to request the production of anything that might be connected therewith. I will only cite para 16 which asked for the production of-

   The wide ranging and at the same time vague description of the documents sought makes it to my mind even clearer than it was in the Radio Corpn of America case that this was a fishing operation.
   In that case as in this oral testimony was sought as well as the production of documents. The letters rogatory asked that Sir George Nelson and Mr Nelson should be examined on 'such of the above-mentioned agreements and documents, and the conversations, transactions, activities and negotiations referred to therein, as may be within the knowledge of them or either of them'. In this case the letters rogatory asked that the persons named 'or other person having knowledge of the facts ... ' be examined as to the existence and terms of the above-mentioned agreements, arrangements or concerted practices'.
   In that case Barry J ([1956] 1 All ER 260, [1956] 1 QB 618 at 625) had affirmed the order giving effect to the letters rogatory to the extent that Sir George Nelson and Mr Nelson were to be required to give oral testimony but allowed the appeal against the order insofar as it related to the production of documents. On appeal Devlin J ([1956] 1 All ER 549 at 553, [1956] 1 QB 618 at 648), with whose judgment Lord Goddard CJ and Hilbery J agreed, expressed the view that Barry J ought logically to have gone on and disallowed the order for the examination of Sir George Nelson and Mr Nelson-

   In my view Devlin J's observations apply to this case.
   In the Court of Appeal it was held that the words which so often appear in Sch B 'any memoranda, correspondence or other documents relating thereto' were too wide and the words 'relating thereto' were struck out. In their place the words 'referred to therein' were inserted.
   That court thus recognised that a part of the letters was of a fishing character. Letters of request may take a variety of forms. Some, it may clearly appear, are453 wholly directed to the obtaining of evidence; some, it may equally clearly appear are not; one part of a request may be for evidence and the remainder not. The language of others may be such that it is not possible with any degree of certainty to decide into which category they fall.
   If it is clear that part of the request is for the obtaining of evidence and that part is severable from the rest, it might be right to hold that that part satisfies s 1 of the 1975 Act. If it is clear that the request is substantially for the obtaining of evidence although a minor part is not, again it might be right to hold that the barrier imposed by that section was passed. The order made by the court could ignore the fishing part.
   In this case, as in the Radio Corpn of America case, the request for the examination of named persons is linked with the request for the production of documents. One is supplementary to the other. The witnesses would be examined on the very matters to which the documents of which production is sought, relate. In the Radio Corpn case ([1956] 1 All ER 260, [1956] 1 QB 618 at 625) Barry J, as I have said, sought to sever the examination of witnesses from the production of documents and it was held that he was wrong to do so. It would, I think, be equally wrong to do so in this case.
   Nor can it be said that the amendments made by the Court of Appeal were of a minor character. With those amendments made and para 16 of Sch B deleted, it appears that the court thought that the letters were restricted to the obtaining of evidence and that the 'fishing' elements were eliminated. I do not think they were but that is by the way. The amendment of no less than 57 paragraphs of the schedule and the deletion of para 16 was a substantial alteration. It is not, in my opinion, open to the courts of this country to convert letters rogatory into letters which comply with s 1 by the use of a 'blue pencil' or to insert words in place of those struck out, though, as I have said, where it is clear that the letters are substantially for the obtaining of evidence, a minor part which is not might be ignored.
   In relation to s 1 of the 1975 Act the letters have to be considered in the form in which they are received.
   In this case, as in the Radio Corpn of America case, the letters stated that without the evidence of the named persons justice could not be done between the parties. I do not ignore the fact that in this case, unlike that, it is said that it is intended that the 'evidence' shall be given at the trial. Whether or not that was inserted on the advice of eminent counsel, one does not know but as Lord Goddard CJ said in that case one must look 'at the substance of the matter'.
   I have naturally carefully considered the judgments of Lord Denning MR, of Roskill LJ and of MacKenna J and I regret that I cannot come to the conclusion to which they came. That the ultimate object was to obtain evidence for use at the trial I do not doubt, but the substance of the letters in my opinion shows that the discovery and examination of the named persons sought was of a fishing character. It might produce some direct evidence and it might result in getting information which would lead to the securing of evidence.
   Looking at the letters alone, I cannot say that I am satisfied that they were directed to the obtaining of evidence either only or mainly. What occurred in the court at Richmond when they were issued, in my opinion strongly supports the conclusion that they were not. Even if they were not issued as a matter of routine, there are a number of indications that their issue was part of the normal American pre-trial discovery, which, as I have said, includes discovery of matters which may lead to the securing of evidence.
   Not being so satisfied, as s 1 requires the court to be, I do not think the court had power to make orders giving effect to the requests and in my opinion it was wrong to do so.
   On this ground I would allow the appeals.

454

   It was also contended on behalf of the appellants that if s 1 of the 1975 Act was satisfied and the court was entitled to exercise the powers contained in its later provisions, nevertheless, in the exercise of its discretion, it should have refused to make the order. The following provisions of the 1975 Act give the court powers, subject to certain restrictions, and impose no duty. The court is clearly entitled to exercise its discretion whether or not to make an order.
   Before I consider the exercise of discretion it is necessary to refer to other provisions of the 1975 Act. Section 2(1) gives the court power by order 'to make such provision for obtaining evidence ... as may appear to the court to be appropriate for the purpose of giving effect to the request ... ' Section 2(3) and (4) contains restrictions on the exercise of that power, sub-s (3) providing that:

Subsection (4) reads as follows:

This subsection states in statutory from the reservation made by Her Majesty's Government on the signing of the convention.
   It was argued that if documents were sufficiently specified for the 'purposes of the subpoena duces tecum, they were sufficiently specified in a letter of request for the court to be able to make an order for their production. I do not agree. The only documents which a person can be ordered to produce under s 2 of the 1975 Act are particular documents.
   It follows that, if it were the case that the court was satisfied that the application for the order was for the purpose of obtaining evidence for civil proceedings, the court could only order the production of particular documents which it specified. It could not order the production of 'any memoranda, correspondence or other documents relating thereto' or, in my opinion, of 'any memoranda correspondence or other documents referred to therein', for those formulae do not specify particular documents. Section 3 of the 1975 Act is of general application. As Lord Goddard CJ said in the Radio Corpn of America case ([1956] 1 All ER 549 at 554, [1956] 1 QB 618 at 649) 'fishing' proceedings are never allowed in the English courts; and, if one concludes, as I do, that this was a fishing operation, then the consequence is that no order should, even if s 1 of the 1975 Act is satisfied, have been made for the examination of any witness or for the production of any documents.
   On 28 October 1976 Master Creightmore ordered the examination of the persons named in the letters rogatory and the production of the documents asked for in Sch B. On 22 February 1977 Master Jacob refused to set aside his order and MacKenna J dismissed the appeal from his decision. On 26 May 1977 the Court of Appeal, as I have said, amended Sch B, and subject thereto, allowed the order to stand.
   On 8 June, consequently, three of the persons named attended before a consular officer at the United States Embassy and on 10 June the RTZ companies appeared by their proper officer. Those persons and the RTZ companies claimed privilege. Section 3(1) of the 1975 Act provides:

Section 3(2) reads as follows:

   The three named persons claimed that under the fifth article of amendment to the United States Constitution they could not be compelled to give evidence and the RTZ companies claimed privilege under s 14 of the Civil Evidence Act 1968 on the ground that to produce the documents 'would tend to expose' them to 'proceedings for the recovery of a penalty' being a penalty provided for by the law of England.
   It will be convenient to consider this latter claim first. Article 85 of the EEC Treaty prohibits as-

For infringement of this article the commission may impose a fine of 'from 1,000 to 1,000,000 units of account, or a sum in excess thereof but not exceeding 10 per cent of the turnover in the preceding business year' of the infringing undertaking^j.

   In this House it was not contended that a fine imposed for breach of art 85 was not a penalty within the meaning of s 14 of the Civil Evidence Act 1968. But two points were taken on behalf of the respondents. First it was contended that the privilege recognised by that section did not extend to cases where the penalty could be imposed without an action or proceedings and that it could only be claimed where there were proceedings to establish liability to the penalty and for its recovery. This argument when advanced in the Court of Appeal was rejected and in my view rightly. A person may be exposed to proceedings for the recovery of a penalty consequent on the imposition of a penalty by a body such as the commission.
   Secondly, it was argued that the discovery of the document would not in the circumstances tend to expose the RTZ companies to such proceedings. It was said that as the commission had knowledge from the 'Friends of the Earth' documents for a considerable time of the existence of the cartel and had taken no action, there was no real risk of such proceedings if the documents in the possession of the RTZ companies were disclosed.
   In Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd the judgment of the Court of Appeal, of which Greene MR was a member, was delivered by du Parcq LJ. He said that it was not in doubt that the power of the court to insist on an answer to interrogatories extended to any case in which it was not made to appear to the court 'that there is reasonable ground to apprehend danger to the witness from his456 being compelled to answer (R v Boyes)'. That was the test applied in the Triplex case and the same test is to be applied in relation to the discovery of documents. In the present case Lord Denning MR said ([1977] 3 All ER 717 at 721, [1977] 3 WLR 492 at 495) that he doubted whether that case would be decided in the same way today. It may be that would now be held that answering interrogatories as to libel would not be a reasonable ground for apprehending a prosecution for criminal libel. I do not read Lord Denning MR as criticising the reasoning in the Triplex case but only its application.
   Lord Denning MR went on to say that if it appears that a witness's answer could be used against him in criminal proceedings, his objections should be upheld; and that if it appears that a witness is at risk 'great latitude should be allowed to him in judging for himself the effect of any particular question'^k. He went on to say ([1977] 3 All ER 717 at 722, [1977] 3 WLR 492 at 496):

   With these observations I respectfully agree. It was suggested that the reasoning in the Triplex case had reduced the burden which formerly lay on a person claiming privilege but I do not think that that is the case. In his judgment du Parcq LJ reviewed the earlier cases and based his conclusions on them. Lord Denning MR contrasted a real and appreciable risk with a remote or insubstantial one, and once it appears that the risk is not fanciful, then it follows that it is real. If it is real, then there must be a reasonable ground to apprehend danger, and, if there is, great latitude is to be allowed to the witness and to a person required to produce documents.
   If the RTZ companies are compelled to produce the documents which they were asked to produce, I cannot reach the conclusion that it would be fanciful to suppose that that would expose them to no greater risk than at present of proceedings for the recovery of a penalty being brought against them. The documents might well authenticate and support the information now in the hands of the commission. They might afford conclusive proof of a breach of art 85 and, when in possession of such evidence, the commission might decide to take action.
   In my opinion the decision of the Court of Appeal was right on this and it follows that the respondents' cross-appeal should be dismissed.
   I now turn to the claims of privilege under the fifth article of amendment. Instead of the procedure laid down by RSC Ord 70, r 6, being followed Judge Merhige came to London to the United States Embassy and there, on 14 June 1977, ruled that the claims to privilege were well taken. In so doing he must have acted as judge of the Richmond court. He appears to have been under the impression that the witnesses who had appeared at the United States Embassy in obedience to the order of the High Court had become subject to his jurisdiction. I do not think that that was so but it matters not.
   On 15 June 1977, Judge Merhige received a letter from the Deputy Assistant Attorney General, Anti-Trust Division, of the United States in the following terms:

Then the individuals are named and the letter concludes with the sentence: 'If you have any questions, please feel free to contact C. Forrest Bannan ... '

   On 16 June 1977, Mr Bannan appeared on behalf of the United States Department of Justice at a resumed hearing before Judge Merhige at the United States Embassy. In the course of his observations, Mr Bannan stated that it was the firm policy of the Department of Justice not to grant immunity to a witness 'in a private litigation-in any litigation to which it is not a party' and that only government witnesses would be granted immunity. He went on to say that the investigation by the department was considered to be of paramount importance and to stress the importance of the evidence of those it was wished to examine, pointing out that efforts to obtain such evidence in Canada, Australia, South Africa and France had not been successful. At the conclusion of the hearing Judge Merhige ruled that the witnesses should not be required to answer any questions which they deemed might incriminate them.
   During the course of the argument it is to be noted that Judge Merhige stated that, when he issued the letters rogatory, he gave no thought as to the use of the evidence for any purpose except civil litigation and that he doubted, if the Department of Justice had asked him to issue letters rogatory, whether he would have done so as there was no case before his court of a criminal nature.
   An aide mŽmoire dated 27 June was delivered to the State Department expressing Her Majesty's Government's concern at this attempt by the Department of Justice to obtain evidence for a criminal anti-trust investigation by intervening in a civil case, stressing the great importance to be attached to the strict observance of agreed procedures as a protection for the rights of individuals and expressing the 'strong hope that the Department of Justice will desist from its attempts to undermine these procedures and discontinue its intervention ... '
   In spite of this aide mŽmoire, on 11 July 1977, the United States Deputy Assistant Attorney General, Anti-Trust Division, authorised an application to Judge Merhige at Richmond for an order under 18 United States Code ¤ ¤ 6002 and 6003 that Lord Shackleton should give evidence.
   18 United States Code ¤ 6003 provides that a United States district court shall, on the request of the United States attorney for the district, issue an order requiring a458 witness to testify despite his refusal to do so on the ground that it might incriminate him; and 18 United States Code ¤ 6002 provides that on such an order being communicated to the witness, he may not refuse to comply with it on the ground that to do so might incriminate him, but that evidence so given cannot be used against the witness in any criminal case except a prosecution for perjury or for a similar offence.
   On 12 July the Attorney General for the United States wrote to the United States attorney for the district a letter which, so far as material, reads as follows:

   On 18 July Judge Merhige made the order sought by the United States attorney. Whether or not he had a discretion in the matter I do not know, but I observe that in the course of the proceedings at the United States Embassy on 16 June he said that he had no discretion.
   This action by the United States Attorney General led to the intervention of the Attorney General before the House, an intervention which, if I may say so, it was, in my opinion, not only his right but also his duty to make on the ground that despite the representations made by Her Majesty's Government, the sovereignty of this country had been prejudiced and that there had been 'an excess of sovereignty or an excess of jurisdiction' on the part of the United States.
   But for the intervention of the United States Attorney General, it is clear that the claims to privilege under the fifth article of amendment would have been upheld. That intervention materially altered the character of the proceedings under the letters rogatory. Whether or not such letters would have been issued in the first place by Judge Merhige on the application of the United States attorney, it is clear that the High Court could not, if they had been issued on his application, have made an order under s 2 of the 1975 Act to give effect to them for it had no power to do so.
   The convention to which the United States was a party only relates to evidence for civil or commercial proceedings. It cannot be right for a state to seek to avail itself, for the purpose of securing evidence for criminal proceedings, of the obligations accepted by another state in respect of the furnishing of evidence for civil or commercial proceedings. While, as I have said, the 1975 Act goes beyond the convention in providing for the supplying of evidence when criminal proceedings have been instituted, no such proceedings have been instituted.
   In this case if the proceedings had ended on 16 June it is clear that the persons named could not have been compelled to testify. The question now is, should they459 now be required to do so consequent on the intervention of the United States Attorney General who wants to compel the giving of evidence by persons who, his letter of 12 July 1977 recognises, are British subjects and outside the jurisdiction of the United States courts.
   I have no hesitation in expressing the opinion that in these circumstances it would be wrong for the High Court, even if it had power under s 2 of the 1975 Act to make an order compelling them to give evidence, to make such an order in the exercise of its discretion, even if in consequence of the United States Attorney General's intervention they would no longer be in peril of prosecution on account of such evidence and so not entitled under American law to rely on the fifth article of amendment.
   In this case it is now clear beyond all doubt that the evidence is required for the grand jury. Indeed it may have been throughout for, as I have said, the grand jury was empanelled in June 1976 and in March 1977 the respondents were served with a subpoena duces tecum to produce to the grand jury documents obtained by them as part of the discovery in the actions in Richmond, the letters rogatory having been issued in October of that year.
   In other cases it may not be so clear that one of the main purposes which the issue of letters rogatory seeks to achieve, and whatever may have been the purpose when they were issued it is now one of the main purposes of the letters in this case, is the securing of evidence for a grand jury in an anti-trust investigation from British nationals and British companies not subject to United States jurisdiction. But I hope that the courts of this country will always be vigilant to prevent a misuse of the convention and will not make an order requiring evidence to be given by such persons unless it is clearly established that, even if it is required for civil proceedings, it is not also sought for criminal proceedings.
   For many years now the United States has sought to exercise jurisdiction over foreigners in respect of acts done outside the jurisdiction of that country. This is not in accordance with international law and has led to legislation on the part of other states, including the United Kingdom, designed to protect their nationals from criminal proceedings in foreign courts where the claims to jurisdiction by those courts are excessive and constitute an invasion of sovereignty.
   Having reached these conclusions I do not find it necessary to consider whether the intended use by the respondents in the Illinois proceedings of the evidence, if secured, should have led the High Court to refuse to make orders under s 2 of the 1975 Act, or whether the fact that those proceedings are penal and against, among others, the RTZ companies not subject to United States jurisdiction, justifies the conclusion that they constitute an invasion of sovereignty of the United Kingdom insofar as they relate to those companies.
   Counsel for the appellants advanced the interesting argument that the privilege to which the RTZ companies were entitled and which was claimed by their proper officers, could not be evaded by seeking the evidence which the companies could not be compelled to give, from officers and servants of the companies through, as he said, 'the back door'. He was unable to cite any authority for that proposition and I express no opinion on it, save to say that it renders a company's privilege of little value if it can be got round in that way. This appears to me to be a proper matter for consideration when a revision of company law is being considered.
   My conclusions can be summarised as follows: 1. The orders should not have been made requiring the giving of evidence and the production of documents. 2. If the view of the majority of the House is that those orders were properly made, then the RTZ companies could not be compelled to produce the documents requested as to do so would tend to expose them to proceedings for the recovery of a penalty. 3. If the orders were properly made, the individual witnesses' claims to privilege upheld by Judge Merhige on 16 June meant that, in consequence of s 3(1)(b) of the 1975 Act, they could not then be compelled to give evidence. 4. If the order made by Judge Merhige at the instance of the United States Attorney General destroyed their460 privilege by granting them immunity from prosecution, that order materially changed the character of the letters rogatory from requests for the obtaining of evidence for civil proceedings into requests for the obtaining of evidence for criminal and civil proceedings, and the High Court should consequently, in the exercise of its discretion rescind the order.

LORD DIPLOCK. My Lords, the jurisdiction and powers of the High Court to make the orders that are the subject of this appeal are to be found in ss 1 and 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, and nowhere else. The 1975 Act was passed, in part (which includes ss 1, 2 and 3), to enable the United Kingdom to ratify the Convention on the Taking of Evidence abroad in Civil or Commercial Matters^l done at The Hague on 18 March 1970. Ratification by the United Kingdom took place on 16 July 1976, with certain reservations and declarations. The convention had previously been ratified by the United States of America.

   Your Lordships have been invited to construe the 1975 Act in conformity with previous decisions of English courts as to the meaning of different words used in a previous statute, the Foreign Tribunals Evidence Act 1856, which was repealed by the 1975 Act. For my part, I do not think that any assistance is to be gained from those decisions. The jurisdiction of English courts to order persons within its jurisdiction to provide oral or documentary evidence in aid of proceedings in foreign courts has always been exclusively statutory. There is no presumption that Parliament, in repealing one statute and substituting another in different terms, intended to make the minimum changes in the previous law that it is possible to reconcile with the actual wording of the new statute, particularly where, as in the instant case, the new statute is passed to give effect to a new international convention.
   So disregarding any previous authorities, I turn to the actual terms of the 1975 Act. Section 1 is the section which confers on the High Court jurisdiction to make an order under the Act; s 2 defines what provisions the court has power to include in such an order; while s 3 deals with the right of witnesses to refuse to give oral or documentary evidence under the order.
   Under s 1, three conditions precedent must be fulfilled before the court has jurisdiction to make any order under the Act. First, there must be an application for an order for evidence to be obtained in England and Wales, and secondly, the application must be made pursuant to the request of a court exercising jurisdiction outside England and Wales. The third condition precedent as to which the court must be satisfied is in the following terms:

   My Lords, I would not be inclined to place any narrow interpretation on the phrase 'evidence ... to be obtained for the purposes of civil proceedings'. The 1975 Act applies to civil proceedings pending or contemplated in courts and tribunals of all countries in the world. It is not confined to countries that are parties to the Hague Convention of 18 March 1970; nor is it limited to courts of law. It extends to tribunals. These courts and tribunals make use of a wide variety of different systems of procedure and rules of evidence in civil matters. In many of these systems it is not possible to draw a distinction between what would be regarded in England as the actual trial of a civil action and what precedes the trial. I do not think that in relation to those countries the expression 'civil proceedings' in s 1(b) can have the restricted meaning of the actual trial or hearing of a civil action; and, if this be so, it cannot bear a more restricted meaning in relation to those countries such as the United States of America where, as in England, it is possible to draw a distinction between the trial and what precedes the trial. In my view, 'civil proceedings' includes all the procedural461 steps taken in the course of the proceedings from their institution up to and including their completion and, if the procedural system of the requesting court provides for the examination of witnesses or the production of documents for the purpose of enabling a party to ascertain whether there exists admissible evidence to support his own case or to contradict that of his opponent, the High Court has jurisdiction to make an order under the 1975 Act. Any limitation on the use of this procedure for the purpose of 'fishing' discovery is, in my view, to be found in s 2.
   The English court cannot be expected to know the systems of civil procedure of all countries from which request for an order under the 1975 Act may come. It has to be satisfied that the evidence is required for the purpose of civil proceedings in the requesting court but, in the ordinary way in the absence of evidence to the contrary, it should, in my view, be prepared to accept the statement by the requesting court that such is the purpose for which the evidence is required.
   The letters of request from the United States District Court for the Eastern District of Virginia ('the letters rogatory') contained in the preamble what on a fair reading is, in my view, an adequate statement to this effect; so the High Court had jurisdiction to make an order. It was not bound to do so, but I think that the court should hesitate long before exercising its discretion in favour of refusing to make an order unless it was satisfied that the application would be regarded as falling within the description of frivolous, vexatious or an abuse of the process of the court.
   The letters rogatory requested the oral examination of directors and employees of the two RTZ companies and the production of documents by these companies. The relevant limitations on the power of the court to grant these requests are contained in sub-ss (3) and (4) of s 2 of the 1975 Act. They read as follows:

   Subsection (3) applies to both oral and documentary evidence. It is this provision which prohibits the making of an order for the examination of a witness not a party to the action for the purpose of seeking information which, though inadmissible at the trial, appears to be reasonably calculated to lead to the discovery of admissible evidence. This is permitted by r 26 of the United States Federal Rules of Civil Procedure. Under the procedure of the High Court of England depositions of witnesses, either at home or abroad, may be taken before examiners for use at the trial, but the subject-matter of such depositions is restricted to the evidence admissible at the trial. So the evidence requested in the letters rogatory can only be ordered to the extent that it is confined to evidence which will be admissible at the trial of the action in Virginia.
   The difficulty involved in the application of sub-s (3) to proceedings in the United States courts lies in the fact that the examination for discovery of witnesses who are not parties to the action serves a dual purpose: the ordinary purpose of discovery with the wide line of enquiry which that permits and also the purpose of obtaining in the form of a deposition evidence from the witness which will be admissible at the trial in the event of the witness not being called in person.

462

   Westinghouse and the United States district court judge (Judge Merhige) appear to have done their best to limit the request to evidence admissible at the trial; and, as respects the oral evidence of the named directors and employees of the two RTZ companies, I think that, in the main, they have succeeded. To ask for oral evidence from 'such other person who has knowledge of the facts' is obviously excessive, but this has never been part of the order as originally made by Master Creightmore. As regards the named persons, however, Westinghouse were in possession of photostatic copies of documents of considerable probative weight, even if technically inadmissible at the trial in the Virginia proceedings, which linked the two RTZ companies and the named persons with operations of an international cartel of uranium producers and gave strong prima facie grounds for believing that those persons could give admissible evidence about the operations; a belief which has been confirmed by their subsequent claims to privilege against self-incrimination.
   The request for the production of documentary evidence by the two RTZ companies must satisfy not only the requirements of sub-s (3) which exclude fishing discovery, but also the stricter requirements of sub-s (4). Under the procedure of the High Court of England there is no power to order discovery of documents by a person not a party to the action, but such a person can be required by subpoena duces tecum to produce documents to the court or, where his evidence is taken before an examiner prior to the trial, at such examination. There is a good deal of authority cited by Lord Denning MR in his judgment as to how specific the reference to documents must be in subpoena duces tecum. Classes of documents, provided the description of the class is sufficiently clear, may be required to be produced on subpoena duces tecum.
   The requirements of s 2(4)(b), however, are not in my view satisfied by the specification of classes of documents. What is called for is the specification of 'particular documents' which I would construe as meaning individual documents separately described.
   In the letters rogatory most of the many requests for particular documents are followed by a request for 'any memoranda, correspondence or other documents relevant thereto'. This is far too wide and these words were struck out wherever they appeared by the Court of Appeal in its order of 26 May 1977. The Court of Appeal were in my view bound by s 2(4)(b) to strike from the master's order the words referred to. However, they did not limit themselves to using a blue pencil. In a number of cases they substituted the phrase 'any memoranda, correspondence or other documents referred to therein' (sc in the particular document specified). Quite apart from the fact that although it may be sufficient for a subpoena duces tecum I do not think that this is sufficiently specific to satisfy the requirements of s 2(4)(b), I do not consider that the court had any power to substitute a different category of documents for the category which had been requested by the United States court.
   Subject, however, to this minor amendment which in the events that have happened has ceased to be of any significance, I think that the order of the Court of Appeal of 26 May 1977 was right. Accordingly, Westinghouse were entitled to proceed with the examination of witnesses and production of documents under Master Creightmore's order subject to any claim to privilege on which the RTZ companies or the individual witnesses were entitled to rely under s 3(1)(a) or (b) of the 1975 Act. Section 3(1) reads as follows:

   When the examination was held, the RTZ companies claimed privilege under para (a), the individual witnesses under para (b).

463

   The privilege claimed by the RTZ companies under para (a) is a privilege under English law. It arises under s 14 of the Civil Evidence Act 1968, which provides as follows:

   So far as it relates to offences and penalties provided for by the law of the United Kingdom this provision is declaratory of the common law. Its purpose is to remove the doubt as to whether the privilege against self-incrimination extends to offences and penalties under foreign law, a question on which the previous authorities were not wholly consistent. (See the Sixteenth Report of the Law Reform Committee 1967^m.)

   The penalty to which the companies claim discovery of documents would tend to expose them is a fine imposed by the Commission of the European Communities under art 15 of EEC Council Regulation 17/62, for intentionally or negligently acting in breach of art 85 of the EEC Treaty. This article of the treaty prohibits cartels which have as their object or effect the prevention, restriction or distortion of competition within the common market. It is directly applicable in the member states; it forms part of the law of England; so does EEC Council Regulation 17/62. For the reason given by the Court of Appeal ([1977] 3 All ER 703, [1977] 3 WLR 450) in their judgments of 26 May 1977, I agree that a fine imposed by the commission under the regulation is a 'penalty' for the purposes of s 14 of the Civil Evidence Act 1968, and that it is enforced by proceedings for recovery of a penalty under the European Communities (Enforcement of Community Judgments) Order 1972ⁿ.

   The RTZ companies took their claim to privilege under s 3(1)(a) of the 1975 Act before the examiner. It was upheld by MacKenna J and on appeal by the Court of Appeal ([1977] 3 All ER 717, [1977] 3 WLR 492) in their judgment of 11 July 1977. The argument for Westinghouse, rejected by the Court of Appeal, that has been pressed in this House was that whatever risk the RTZ companies ran of having a fine imposed on them by the commission it would be in no wise enhanced by the production in the United States proceedings of documents that constituted evidence of their participation in a cartel prohibited by art 85(1) of the EEC Treaty. The argument does not involve the proposition that the companies are not infringing art 85(1) of the treaty. On the contrary Westinghouse not only assert that they are but also deny that the cartel could be brought within art 85(3) which empowers the commission to declare art 85(1) to be inapplicable to cartels which satisfy certain conditions.
   My Lords, art 89 of the treaty imposes on the commission the duty of seeing to the application of art 85, of investigating infringements and of taking steps to remedy the situation. If contrary to their duty the commission fail to act they may be called on to do so under art 175 by any other institution of the community including the European Parliament, or by any member state, and on continued failure may be proceeded against before the European Court of Justice. It is not for your Lordships to speculate why the commission have hitherto remained quiescent in the matter, nor what might stir them into activity. Under EEC Council Regulation 17/62 they have464 wide powers of investigation under which they could, if they thought fit, themselves compel the RTZ companies to produce the very documents of which Westinghouse seek to obtain production in the instant proceedings. This may be so, but there is a proverb 'let sleeping dogs lie' which may have some application in the international politics of uranium production and enrichment which it would be disingenuous to pretend are not lurking in the background of this case.
   I do not think that your Lordships are entitled to dismiss as fanciful the risk that if the documents relating to the cartel were produced at the trial in the Virginia proceedings and came, as they then would, into the public domain, the resulting publicity in this sensitive political field might result in pressure on the commission to take against the RTZ companies speedier and severer action than they might otherwise have done and that such action might well include the imposition of penalties under art 15 of EEC Council Regulation 17/62. The Court of Appeal in my opinion were right in upholding the refusal of the two RTZ companies to produce the documents requested in the letter rogatory.
   It was submitted that since the RTZ companies were entitled to withhold the documents from production, they had a privilege in English law to require their officers and servants to refuse to answer questions that might lead to the disclosure of the contents of the documents or provide evidence that would tend to expose the companies to a penalty. At common law, as declared in s 14(1) of the Civil Evidence Act 1968, the privilege against self-incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no textbook old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of the instant case a new privilege hitherto unknown to the law.
   There remains to be considered what effect the recent events that have occurred in relation to the named persons' claim to privilege under s 3(1)(b) of the 1975 Act ought to have on the order of Master Creightmore requiring them to give oral evidence. Their right to claim this 'Fifth Amendment' privilege depends on United States federal law, and under the 1975 Act, it was for Judge Merhige to rule on the validity of the claim.
   In order to obtain a speedy ruling from him the parties, by mutual consent, departed from the procedure laid down in RSC Ord 70, r 6. In view of the imminence of the trial in Virginia they took short cuts. This has led to some degree of procedural confusion as to the capacity in which Judge Merhige was doing the various things he did. This has led to technical disputes about such matters as to whether and if so at what point the letters rogatory were exhausted and as to the legal nature and effect in England of the orders made by Judge Merhige in Virginia on 18 July 1977 ostensibly under the Organized Crime Control Act 1970, 18 United States Code ¤ 6003. I would not wish to decide this part of the case on mere technical errors of procedure that could be cured by the issue of fresh letters rogatory. In my view the events that happened enable me to base my decision on principles which transcend any irregularities in procedure.
   The essential facts are: (1) On 14 June 1977 Judge Merhige upheld the claim of the named persons to Fifth Amendment privilege and ruled that they need not answer any questions save as to their names and addresses. (2) On 15 June 1977 a letter was received by Judge Merhige from the United States Department of Justice stating that the oral evidence of the named persons that was requested in the letters rogatory was required by the department for the purpose of a grand jury investigation into alleged offences against the anti-trust laws of the United States. It contained an assurance that the department would not use the testimony of the named persons as the basis for criminal prosecution of them in the United States. (3) On 16 July 1977 a representative of the Department of Justice appeared before Judge Merhige and asked him, on the strength of the letter, to rule that the named persons were no longer entitled to claim their Fifth Amendment privilege. The judge declined. He confirmed his465 previous ruling; but added that if an application were to be made to him under 18 United States Code ¤ ¤ 6002 and 6003 for an order requiring the named persons to give evidence on terms that it could not be used against them in any criminal case, he, Judge Merhige, would feel compelled to rule that they were no longer entitled to refuse to answer the questions. (4) On 18 July 1977, applications were made to Judge Merhige, with the written approval of the United States Attorney General, for orders under ¤ ¤ 6002 and 6003 in respect of each of the named persons; and on the same day the judge issued orders which ordered each of them to 'give testimony or provide other information in response to questions pronounced pursuant to letters rogatory issued by this Court'. Whatever their procedural defects I am prepared to treat these orders as a ruling by the United States court under s 3(2) of the 1975 Act, that the Fifth Amendment privilege claimed by the named persons is no longer available to them.
   My Lords, it is clear from Judge Merhige's rulings of 14 and 16 June 1977 that so long as the evidence in respect of which Fifth Amendment privilege was claimed was to be used for the purposes of civil proceedings only, it could not in the events that happened be obtained under an order made under ss 1 and 2 of the 1975 Act. Insofar as the evidence was intended to be used for the purposes of criminal proceedings in the United States, which were not yet instituted but were only at the stage of investigation by a grand jury, s 5(1)(b) of the 1975 Act excludes the jurisdiction of the High Court to make an order requiring the evidence to be given.
   The United States is not a party to the civil proceedings in which the letters rogatory have been issued. Those proceedings in the words of the United States Attorney General are 'private litigation'. The intervention of the Department of Justice to seek an order under ¤ ¤ 6002 and 6003 in private litigation pending in the United States is, we have been told, unprecedented. It is acknowledged by the United States Attorney General in his letter to be contrary to the firm policy of the department 'except in the most extraordinary circumstances'.
   The extraordinary circumstances listed, in addition to the Attorney General's belief that the testimony sought may well be indispensable to the work of the grand jury, include the following statement:

   This is a reference to the long-standing controversy between Her Majesty's Government and the Government of the United States as to the claim of the latter to have jurisdiction to enforce its own anti-trust laws against British companies not carrying on business in the United States in respect of acts done by them outside the territory of the United States. As your Lordships have been informed by Her Majesty's Attorney General it has long been the policy of Her Majesty's Government to deny this claim. Her Majesty's Government regards as an unacceptable invasion of its own sovereignty the use of the United States courts by the United States Government as a means by which it can investigate activities outside the United States of British companies and individuals which it claims infringe the anti-trust laws of the United States. Section 2 of the Shipping Contracts and Commercial Documents Act 1944 was passed in an attempt to thwart this practice. Past attempts by the United States Government to use the United States courts in this investigatory role have been the subject of diplomatic protests. One such protest was made in respect of the intervention of the Department of Justice in the proceedings in the instant case before Judge Merhige on 16 June 1977.
   My Lords, what follows from the essential facts I have recounted is: first that the evidence sought from the named persons could not be obtained by Westinghouse so long as the only purposes for which it was required were civil proceedings; secondly, 466that it was only when that evidence was called for by the United States Department of Justice for the purposes of an investigation by a grand jury in the United States with a view to discovering whether there were grounds for instituting criminal proceedings against someone that under United States law the named persons would become compellable to give it; thirdly, that the purpose for which the Department of Justice was seeking to obtain the evidence was not one for which it could have been obtained by them under the 1975 Act since no criminal proceedings had yet been instituted; fourthly that the evidence was required for the purpose of investigating the activities outside the United States of British companies and individuals for alleged infringements of anti-trust laws of the United States, a procedure which, as the department knew, Her Majesty's Government regards as an unwarrantable invasion of its sovereignty.
   My Lords, I have no hesitation in holding that with the intervention of the Department of Justice and its obtaining of the orders under ¤ ¤ 6002 and 6003 on 18 July 1977 the continued enforcement of Master Creightmore's order as respects the oral evidence of the named persons would amount to an abuse of the process of the High Court under the 1975 Act. The letters rogatory issued in the civil proceedings in the Virginia court on Westinghouse's application are manifestly being made use of by the Department of Justice for the ulterior purpose of obtaining evidence for a grand jury investigation which it is debarred from obtaining directly by s 5(1)(b) of the 1975 Act. I do not find it necessary to enquire whether the action taken by the department was in connivance with Westinghouse or against its wishes. If the latter, Westinghouse will not be prejudiced by the order of Master Creightmore being now set aside; for in the absence of the department's intervention the oral evidence of the named persons whose claim to Fifth Amendment privilege was upheld by Judge Merhige before 18 July 1977 could not have been obtained by them under that order.
   Since the rest of Master Creightmore's order, which relates to the production of documents by the two RTZ companies, is also spent by reason of their claim to privilege being upheld by this House, I would discharge the whole order as from 18 July 1977.

LORD FRASER OF TULLYBELTON. My Lords, on 21 October 1976 the Honourable Judge Merhige, sitting in the United States District Court for the Eastern District of Virginia, Richmond Division, issued two letters rogatory addressed to the High Court of Justice in England seeking the examination on oath of nine named individuals, and of other persons not named, and the production of documents alleged to be in the possession of Rio Tinto Zinc Corpn Ltd, in the case of one of the letters, and of RTZ Services Ltd in the case of the other letter. Both these companies ('the RTZ companies') are registered in England and neither of them is a party to the proceedings in Virginia. All the persons named as witnesses are British subjects resident in England or, at least, outside the United States of America, and none of them is a party to the proceedings in Virginia. Judge Merhige was dealing with 13 actions which had been initiated in different federal courts in the United States of America and had been consolidated in his court. Each action was at the instance of a different plaintiff, but in all of them the defendants were Westinghouse, who are the respondents in two of the instant appeals and the appellants in three appeals. On 28 October 1976 Master Creightmore on the ex parte application of Westinghouse, made orders under s 2 of the Evidence (Procedure in Other Jurisdictions) Act 1975 ('the 1975 Act') giving effect to the letters rogatory. He ordered the nine named individuals (but no others) to attend before an American consular officer in the United States Embassy in London, and ordered each of the RTZ companies to produce the documents described in a schedule to the letter rogatory relating to that company. A fundamental objection to the making of the order of 28 October 1976 has been taken by the RTZ companies and by the individuals on the ground that, as they maintain, the requests made by the letters rogatory do not fall within the terms of the 1975 467Act. There is no difference between the objections taken by the two RTZ companies, but somewhat different considerations apply to the companies' objections to producing documents on the one hand, and to the individuals' objections to giving oral evidence on the other hand.
   One of the main purposes of the 1975 Act was to make new provision for enabling the High Court in England to assist in obtaining evidence required for the purposes of proceedings in other jurisdictions, and it repealed several earlier Acts including the Foreign Tribunals Evidence Act 1856. It gives legal effect in the United Kingdom to the principles of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters^o, though in one respect at least, it goes beyond the convention: see s 5 of the 1975 Act dealing with evidence for the purposes of foreign criminal proceedings. Section 1 of the 1975 Act provides as follows:

   The first question in the instant appeals is whether the court should be satisfied, as required by para (b) of s 1, that the requests made in the letters rogatory are for 'evidence' in the sense in which that word is used in the paragraph or whether they are truly for a wider discovery. Unless the application passes through this filter no order can be made to give effect to it. The distinction between evidence and discovery in this context was explained in Radio Corpn of America v Rauland Corpn. That was a case under the, now repealed, Foreign Tribunals Evidence Act 1856, where the word was 'testimony', but I do not consider that there is any difference material to the instant appeal between that word and 'evidence' in s 1 of the 1975 Act. Devlin J said this ([1956] 1 All ER 549 at 552, [1956] 1 QB 618 at 646):

   The distinction between evidence and discovery is recognised in art 23 of the Hague Convention, and in s 2(4) of the 1975 Act, and was fully accepted by counsel for Westinghouse who did not dispute that, if the letters rogatory were merely seeking discovery, they ought not to receive effect. This issue was decided in favour of Westinghouse by Master Jacob, by MacKenna J and by the Court of Appeal ([1977] 3 All ER 703, [1977] 3 WLR 430), and counsel for Westinghouse argued that their decisions turned on the evidence and that there was no reason of principle that would justify your Lordships' House in coming to a different conclusion. I recognise, of course, that great weight must be given to the judgments in these courts but I have felt entitled and bound to re-examine the issue. In the forefront of the evidence relied on by the Court of Appeal was the statement in the recital at the beginning of the letters rogatory that 'Justice cannot be done among the said parties without the testimony, which is intended to be given in evidence at the trial of the actions, of the following persons' (my emphasis). But in my opinion it would be wrong to place reliance on that recital because it was drafted by the legal advisers of Westinghouse with the object of meeting the requirements of the English courts, and it cannot be regarded as stating the considered opinion of the American court. Judge Merhige's order of 20 May 1977, which was relied on by Lord Denning MR and Roskill LJ ([1977] 3 All ER 703 at 708 and 715, [1977] 3 WLR 430 at 436 and 444) was also drafted by Westinghouse's advisers and is open to the same comment. No doubt any testimony elicited in response to the letters, so far as it is relevant and admissible, would be used as evidence at the trial, but I think we have to consider whether the letters are not calculated to elicit also a substantial quantity of material that would not be direct evidence. In judging of that the main weight must be given to the substance of the letters rogatory and to the circumstances in which they were issued. They were issued as part of the pre-trial discovery process in the 13 consolidated actions raised by Westinghouse's customers in federal courts. Part of Westinghouse's defence was commercial impracticability based on the allegation that the price of uranium had been forced up by a cartel of producers. It was in support of that defence that they wanted production of the documents and the oral evidence. At the stage of discovery American courts will compel persons within their jurisdiction who are not parties to the proceedings to produce documents and to submit to oral examination if such procedure appears reasonably likely to lead to the discovery of admissible evidence, even though the information disclosed is not itself such evidence. Thus they allow a range of enquiry much wider than would be allowed in England. I think that the Court of Appeal may have underestimated the importance of this factor, because Lord Denning MR ([1977] 3 All ER 703 at 709, [1977] 3 WLR 430 at 437) referred to art 23 of the Hague Convention which provides:

   He said that the United Kingdom when it ratified the convention did not make any such declaration. But unfortunately he was misinformed. Roskill LJ ([1977] 3 All ER 703 at 714, [1977] 3 WLR 430 at 442) also referred to art 23 and was apparently under the same misapprehension. The instrument of469 ratification of the United Kingdom contains a declaration that in accordance with art 23 Her Majesty's Government will not execute letters of request 'issued for the purpose of obtaining pre-trial discovery of documents', and adding that Her Majesty's Government understand that description as including any letter of request which requires a person to make statements or produce documents that would now be struck at by s 2(4) of the 1975 Act. Of course the mere fact that letters rogatory have been issued at the pre-trial discovery stage does not necessarily mean that they are not seeking for evidence in the sense of s 1 of the 1975 Act but it does, so to speak, put one on one's guard. In the present case Judge Merhige when he issued the letters rogatory is reported to have said that he was not sure whether the information would be relevant but that 'it may lead to something'. I think I am entitled to have regard to that statement, just as the court in the Radio Corpn case had regard to a statement by the American judge, and it seems to show that Judge Merhige regarded the letter as being for the purpose of discovery.
   But the matter which is, in my opinion, of decisive importance is the operative part of the letter rogatory. The requests for production of documents and for taking oral testimony have to be considered separately. The description of the documents sought is in Sch B to each of the letters and it is, I think, conceded on behalf of Westinghouse, and is in any event clear, that the description is at least in part too extensive to pass through the filter of s 1 of the 1975 Act. A typical specimen of the objectionable matter is in para 1 which calls for minutes of certain meetings and then for 'any memoranda, correspondence or other documents relating thereto'. Wide sweeping-up words in practically the same terms are found at the end of many other paragraphs in the schedule. These words would include any letters or telex messages reserving accommodation, hotel bills and many other trivial documents relating to arrangements for representatives of RTZ to attend the meetings referred to. Such matters cannot be necessary or even useful as evidence in support of Westinghouse's case.
   A separate though related objection to the terms of many of the items in the schedule is that they could not, in my opinion, receive effect under an order of the English court without contravening s 2(4) of the 1975 Act. That subsection provides as follows:

   The reference to 'any' documents in the sweeping-up words in the schedule to the letters rogatory suggests to me that the draftsmen did not know whether such documents were in existence or not. Accordingly the words seem to be an attempt to circumvent s 2(4)(a) of the 1975 Act, an attempt which should not be allowed to succeed. Moreover, I think that many of the items in Sch B would be contrary to s 2(4)(b) in respect that they call for production not of 'particular documents specified' but of classes or descriptions of documents.
   The Court of Appeal declined to make an order containing these wide words and they amended the order made by Master Creightmore by deleting them, and by substituting words such as 'all other documents referred to therein'. No doubt the intention was to narrow the range of documents to be produced, although one cannot be sure whether that would be the effect of the substitution. In any case the amended form is still not limited to particular documents specified. Several paragraphs of the schedule were also deleted. But in judging the nature of the letters470 rogatory as a whole the court must in my opinion look at them in the unamended form in which they were received from the American court. I do not say that, if they were found to include a few relatively minor items which could not qualify under s 1 or under s 2(4) of the 1975 Act, the whole request in the letters would have to be refused. The court has to look at the substance of the matter: see Radio Corpn of America v Rauland Corpn ([1956] 1 QB 618 at 641), per Lord Goddard CJ. In this case, having regard to the very wide range of documents that would fall within the description in Sch B, I am not satisfied that, so far as the documents are concerned, the letters are substantially limited to obtaining 'evidence' in the sense of s 1 of the 1975 Act. On the contrary I think they call for discovery of information far beyond what is necessary or even relevant to Westinghouse's defence. An order to give effect to them would also be contrary to s 2(4). I am therefore of opinion that the order of 28 October, so far as it orders production of the documents, ought not to have been issued. Further, the whole substance of the letters seems to me so far outside the limits permitted by the 1975 Act, that they ought not to receive effect, even in an amended form. I would therefore set aside the order of 28 October so far as it relates to production of documents.
   The position of the witnesses whose oral evidence is sought is different and I regard it as a narrow question whether the part of the order relating to them was rightly made. The letters rogatory clearly go too far in requesting oral evidence from 'other persons having knowledge of the facts'. But that part was omitted from the order of 28 October, and I do not consider that its inclusion in the letters rogatory necessarily shows that their purpose was for discovery. The named witnesses are all described as 'being directors and/or employees and/or former directors and/or former employees' of the RTZ companies and it seems fairly clear that their evidence is sought either because of the positions they held in the companies or because they are named in one or other of the documents sought to be recovered. It seems reasonable to assume that they will have some knowledge about the existence and terms of the agreements, and I therefore agree with the Court of Appeal that the order, so far as it directs the named witnesses to attend for examination, should stand.
   I go on to consider the privilege issues raised in these appeals. The issues concerning the production of documents by the RTZ companies are quite different from those affecting the oral evidence of the named witnesses. So far as the documents are concerned, MacKenna J held that the companies were not bound to produce the documents because they were entitled to rely on privilege against self-incrimination under English law, and the Court of Appeal ([1977] 3 All ER 717, [1977] 3 WLR 492) dismissed an appeal by Westinghouse against his decision. Westinghouse are now appealing to your Lordship's House in what was referred to as the fifth appeal. It turns on s 14(1) of the Civil Evidence Act 1968 which provides as follows:

   The RTZ companies rely on that subsection because they say that production of the documents called for in Sch B would tend to expose them to proceedings for recovery of a penalty, namely a fine under EEC Council Regulation 17/62, which was passed in implementation of arts 85 and 86 of the EEC Treaty. EEC Council Regulation 17/62 now forms part of the law of England by virtue of art 189 of the EEC Treaty, and the471 European Communities Act 1972, s 2, and therefore the penalty would be a penalty provided for by the law of part of the United Kingdom. Accordingly, privilege would exist under English law in civil proceedings in England and the same privilege applies to proceedings under the letters rogatory: see s 3(1)(a) of the 1975 Act. In the Court of Appeal, Westinghouse argued that a fine imposed by the Common Market was not a 'penalty' in the sense of s 14 of the 1968 Act, but the court rejected that argument and it was not repeated in this House.
   Two other arguments were advanced on behalf of Westinghouse to show that the decision of the Court of Appeal was wrong. First it was said that the privilege only exists where a person would tend to be exposed to 'proceedings ... for the recovery of a penalty' and that no 'proceedings' were required for the imposition of fines by the European Commission because under art 15(2) of EEC Council Regulation 17/62 the commission has power to impose fines for infringement of art 85 of the EEC Treaty summarily by 'decision'. I have some doubt whether that part of the argument is well founded, because the Court of Justice has power under art 17 of EEC Council Regulation 17/62 to review decisions of the commission imposing fines and, whatever the position may be while the commission is considering a 'decision', a review by the court would involve a resort to proceedings of some sort. But even if the argument were right so far, it breaks down at the next stage because a fine imposed by the commission could only be enforced by legal proceedings in the English courts. It was argued that proceedings for recovery of a penalty in terms of s 14 did not include proceedings for its enforcement as distinct from imposition, but I cannot see why that should be. I think that the Court of Appeal rightly rejected this argument.
   The second argument is more formidable. Counsel for the respondents said that production of the documents would not tend to expose the company to proceedings for recovery of a penalty because they were already fully exposed by reason of the following facts: (1) the European Commission is already aware of the existence and terms of many of the documents, viz those of which copies have been disclosed by the Friends of the Earth; (2) the commission has wide power under art 14 of EEC Council Regulation 17/62 to investigate and to compel the disclosure of documents that might be evidence of infringement of art 85 of the treaty; (3) The commission has a duty under art 89 of the treaty to ensure the application of the principles of art 85 against cartels, to investigate cases of suspected infringement and to propose appropriate means to bring it to an end; (4) there is machinery under art 175 of the treaty for member states and other persons and organisations to bring to the notice of the Court of Justice of the European Communities any failure by the commission to act; (5) no 'negative clearance under art 2 of EEC Council Regulation 17/62 has been given, and (6) notwithstanding all these circumstances the commission has made no move to investigate the alleged cartel.
   In the light of these facts, the present case is unusual if not unique. The question might I think be stated thus: whether the production of the documents would tend to increase the risk, to which the RTZ companies are already exposed, of proceedings for recovery of penalties.
   There is force in counsel for the respondents' contention that the answer should be in the negative, but I have reached the opinion that the Court of Appeal were right in taking the opposite view. We know that the commission has the question of investigating the possible infringement of art 85 constantly under review and, although it has not yet taken action to initiate proceedings, or even to investigate, it is not unreasonable to think that it might decide to act if it saw that there was hard evidence of infringement. Moreover, production of the documents might lead to one of the member states of the community or to some other party taking action under art 175 of the treaty to force the commission to act.
   Counsel for the respondents suggested that the Court of Appeal had applied the wrong test in judging whether production would tend to expose the companies to proceedings in that they had imposed too low an onus on them. In my opinion that472 criticism was not justified. The test was stated in Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd ([1939] 2 All ER 613 at 617, [1939] 2 KB 395 at 403, 404), where du Parcq LJ said this:

Although the members of the Court of Appeal expressed themselves in various words they all purported to follow the decision in Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd. The test is not a rigorous one. All that is necessary is that it should be reasonable to believe that production would 'tend to expose' (not 'would expose') the possessor of the documents to proceedings. I agree with the Court of Appeal that that test is satisfied in the present case.
   The seven individual witnesses claimed privilege under the fifth article of amendment to the United States Constitution and their claim was upheld by Judge Merhige on 14 June 1977. For the purpose of giving this ruling Judge Merhige came to London and sat in the United States Embassy here. After giving the ruling he heard some further evidence and in the course of the argument in this House a careful analysis was made of the capacity in which the learned judge made various rulings and orders whilst sitting in London, whether as a judge of the United States court or as examiner under the orders of an English court. Some of the procedure was criticised. There may be room for doubt whether it was all strictly regular but the short-circuiting of the procedure was with the laudable object of expediting the proceedings in England in order not to delay the beginning of the trial in America which was then imminent and I do not consider that it has resulted in prejudice to any of the parties.
   On 16 June 1977, two days after Judge Merhige had ruled that the privilege plea was well taken, he sat again in the United States Embassy in London and stated that on the previous day he had received a letter from the Department of Justice of the United States the effect of which was to offer an informal undertaking that the United States Government would not utilise the deposition testimony of any of the named witnesses as a basis for criminal prosecution of that witness for the violation of any United States law. The explanation of the letter is that since about March 1976 the Department of Justice had been carrying on an investigation into possible infringements of United States anti-trust laws by members of an alleged cartel of uranium producers, and at some date before 16 June 1977 a federal grand jury had been empanelled to pursue the investigations and to initiate criminal proceedings if they were considered appropriate. The letter is important because it discloses frankly the reasons for the offer of immunity from prosecution. It has already been quoted fully by my noble and learned friend, Viscount Dilhorne, and I do not repeat the quotation. On the same occasion counsel for the Department of Justice appeared and explained to Judge Merhige that the reason why the department had made only an informal offer of immunity instead of requesting the court to make a formal order under the Organized Crime Control Act 1970, 18 United States Code ¤ ¤ 6002 and 6003, was that, 'there is a firm Department of Justice policy that it will not consider seeking immunity for a witness in a private litigation-in any litigation to which it is not a party.' He also said this:

   Later on 16 June, Judge Merhige declined to give effect to the letter or to require the witnesses to answer questions which they considered might incriminate them, but he said that if a formal application under ¤ ¤ 6002 and 6003 were made he would have no option but to make an order and grant immunity. The result was that his ruling of 14 June holding the privilege plea well taken remained unaffected. That was how the matter stood when the instant proceedings were last before the Court of Appeal ([1977] 3 All ER 717, [1977] 3 WLR 492) on 11 July 1977.
   Since that date an event has occurred which has profoundly altered the situation. On 18 July the Department of Justice departed from its firm policy and made a formal application to Judge Merhige for an order to compel the testimony of each of the witnesess under ¤ 6002. The application was made with the authority of the Attorney General of the United States of America and we have seen copies of two letters relating to it. One was a formal letter dated 11 July 1977 from the Department of Justice bearing the significant heading 'Re: Grand Jury Investigation of the Uranium Industry.' The other letter was dated 12 July 1977 addressed to the United States District Attorney for the Eastern District of Virginia and signed by the Attorney General of the United States of America in which he explained the reasons for departing from the firm policy of the Department of Justice against seeking such an order in a private litigation, 'except in the most extraordinary circumstances'. His letter includes the following passage:

I draw particular attention to para (3) of these reasons.
   Judge Merhige on 18 July 1977 made an order that each of the named witnesses should give evidence and granting them immunity. The operative part of each order was in the following terms:

Counsel for the appellants submitted that any evidence given by a witness before the consular officer in London would not be given pursuant to the order of 18 July by Judge Merhige as that order could not have extra-territorial effect in England on a British subject. Any evidence, he said, would be given pursuant to an order of the474 English court giving effect to the letter rogatory and therefore the witness would not enjoy immunity from prosecution in the United States in respect of his evidence. If the matter fell to be decided by English law, that submission might have considerable force. But the question of immunity is a question of American law and Judge Merhige has plainly indicated that in his view the witness would have immunity although I do not understand that he has heard argument on the matter nor that he has given a formal decision on it. It may therefore be that the position in American law is not free from doubt. But as a practical matter, having regard to the indication of opinion given by Judge Merhige, I think we must proceed on the footing that each witness would have immunity from prosecution in the United States of America in respect of any evidence given by him in response to the letters rogatory.
   The question therefore which has to be decided, and which owing to the sequence of events that I have mentioned has unfortunately not been considered by any of the courts below, is whether the witnesses should be ordered to appear again before the American consular Officer as examiner and to answer questions propounded under the letter rogatory. On this important matter we have had the assistance of the Attorney General. He explained that Her Majesty's Government consider that in this case, as in some other cases in recent years, the United States courts have claimed a jurisdiction which is excessive and constitutes an infringement of the proper jurisdiction and sovereignty of the United Kingdom. In particular, they have asserted jurisdiction in the enforcement of anti-trust legislation, and also in requiring the giving of information to facilitate investigatory procedure under that legislation, where the activities complained of have been carried out by British subjects and have taken place exclusively outside the territory of the United States, on the ground that those activities have taken effect within that territory. Her Majesty's Government consider these claims to extra-territorial jurisdiction particularly objectionable in the field of anti-trust legislation because, among other reasons, such legislation reflects national economic policy which may not coincide, and may be indirectly in conflict with, that of other states. The Attorney General also brought to our attention art 12(b) of the Hague Convention which provides:

   The exception relating to security is given statutory effect by s 3(3) of the 1975 Act, but there is no statutory exception for cases where the government of the United Kingdom considers that its sovereignty would be prejudiced as in the present case. Nevertheless I can hardly conceive that if any British court, or your Lordships' House sitting in its judicial capacity, was informed by Her Majesty's Government that they considered the sovereignty of the United Kingdom would be prejudiced by execution of a letter of request in a particular case it would not be its duty to act on the expression of the government's view and to refuse to give effect to the letter. The principle that ought to guide the court in such a case is that a conflict is not to be contemplated between the courts and the executive on such a matter (see The Fagernes ([1927] P 311 at 324), per Atkin LJ).
   In the present case however I consider that the matter can be disposed of on a narrower ground. The power of the English courts to give effect to the letter rogatory depends on the 1975 Act and s 1(b) of that Act provides that the power exists where the court is satisfied inter alia that the evidence is to be obtained for the purpose of civil proceedings before the requesting court. When the letters rogatory were presented in England the 'evidence' undoubtedly was to be obtained for the purpose of civil proceedings in the Virginia court. In fact it was, and is (if given) likely to be used also in other proceedings for damages for infringement of anti-trust legislation475 in a court in Illinois. But although the Illinois proceedings include a claim for treble damages, they are in my opinion civil proceedings, and the fact that the evidence may be used for the purpose of those proceedings seems to me irrelevant so long as it also is bona fide intended to be used in the proceedings in Virginia.
   But the use of the evidence for the investigatory procedure before a grand jury is a different matter. The English courts have no power under the 1975 Act, or otherwise, to make orders for giving effect to requests for evidence to be used for such investigatory purposes. They do have power, under s 5 of the 1975 Act, to make orders in relating to obtaining evidence for the purposes of criminal proceedings abroad but only for 'proceedings which have been instituted'. But the grand jury proceedings are not criminal proceedings and the evidence is not said to be required for any criminal proceedings that have yet been instituted. The submission of counsel for the Department of Justice to Judge Merhige and the letters from the department and from the Attorney General of United States of America already mentioned show that the department is seeking the evidence of these witnesses only for the purposes of the grand jury proceedings. Moreover para 3 of the Attorney General's letter of 12 July shows that their evidence probably could not be obtained for that purpose through the existing machinery. Accordingly what is being attempted is to use the machinery provided by the 1975 Act for obtaining evidence for civil proceedings for the quite different purpose of investigatory proceedings before a grand jury. That is a purpose altogether outside that 1975 Act and is one to which the English courts ought not in my opinion to lend assistance, particularly having regard to the objections stated by Her Majesty's Government. No hardship will be caused to Westinghouse if we refuse to compel the witnesses to answer as that was already the position under Judge Merhige's ruling upholding their privilege. In my opinion therefore the order made by the Court of Appeal ([1977] 3 All ER 703, [1977] 3 WLR 430) on 26 May, before Judge Merhige's ruling and before the application by the Department of Justice, should be reversed.
   An interesting submission was made by counsel for the appellants on a question that would have arisen if your Lordships had held that the witnesses have no privilege but that the RTZ companies have privilege. In such an event the privilege of the companies could be rendered useless if their directors and officers could be compelled to give evidence incriminating the companies. Counsel for the appellants submitted that the privilege of a company, which would allow it to refuse to answer written interrogatories by the hand of its proper officer, should apply also to oral evidence by its directors and officers if such evidence might tend to incriminate the company. The submission is unsupported by authority but it has much logical force and if it had been relevant to do so I would have wished to consider it more carefully.
   I would set aside the order of 28 October 1976 made by Master Creightmore so far as it relates to production of documents by the RTZ companies. If that course does not commend itself to your Lordships, I would agree with the order proposed by my noble and learned friend, Lord Wilberforce.

LORD KEITH OF KINKEL. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Diplock. I agree with it subject to certain observations which I shall endeavour to express.
   I agree that MacKenna J and the Court of Appeal were right in refusing to set aside completely the order of 28 October 1976 giving effect to the letters rogatory. The Court of Appeal was also right, in my view, in holding that the letters should not receive effect in their entirety as regards the documents, production of which was thereby sought. The terms of Sch B to the letters make it clear that the respondents were originally seeking to enforce against persons not party to the Virginia proceedings a general discovery of documents which might or might not constitute evidence in these proceedings. Such a course is not permitted under English law 476(Burchard v Macfarlane; Radio Corpn of America v Rauland Corpn). Thus it was not open to the court, in view of the terms of s 2(3) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, to make an order allowing this to be done. Further, s 2(4) provides that a person shall not be required '(a) to state what documents relevant to the proceedings' are or have been in his possession, 'or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court ... to be, or to be likely to be, in his possession'. The terms of Sch B are such that an unqualified order giving effect to these letters rogatory would necessarily have required both these things to be done. On the other hand there can be no doubt that Sch B does specify a certain number of particular documents which can in the circumstances reasonably be regarded as relevant evidence in the Virginia proceedings, and as likely to be in the possession of the RTZ companies. I refer in particular to the originals of certain documents copies of which are included in the 'Friends of the Earth' collection.
   So the question comes to be whether the proper course was to reject completely the letters rogatory, so far at least as they sought the recovery of documents, on the ground that in substance the applicants were seeking a licence for a fishing expedition, or to give effect thereto as regards the particular documents specified therein which appeared likely to be in the possession of the RTZ companies.
   The answer to this question depends, in my opinion, on the balance of a number of considerations. On the one hand it may be regarded as undesirable that an applicant for letters rogatory should receive any encouragement to think he may properly include therein a wide-ranging schedule of documents in the expectation that the court of request will carry out a pruning operation and allow him as much as he is properly entitled to demand. On the other hand it is the duty of the court of request to do its best, consistently with the provisions of the statute, to assist the processes of justice in the court from which the request comes, and to do so in such a way as will cause the minimum of delay. If in the present case the letters rogatory were to be entirely rejected, so far as they relate to the recovery of documents, it would presumably be open to applicants to obtain from the Virginia court fresh letters limited to the particular documents specified and come back for an order giving effect to them. This would involve considerable delay, and the end result would be the same as if the court of request had itself cut down the scope of the original letters rogatory. Therefore I am of the opinion that the right course, in circumstances such as those of the present case, is for the court of request to issue an order limited to those documents the production of which, in its judgment, ought properly to be enforced. I have no doubt that on a proper construction of s 2 of the 1975 Act, having regard in particular to sub-ss (3) and (4), it is within the power of the court, in its discretion, to proceed in that way.
   I consider this conclusion to be in accordance with the policy of the 1975 Act. That policy was to improve the arrangements in each of the United Kingdom jurisdictions for obtaining evidence to be used in certain proceedings before the courts of other jurisdictions. The major purpose of the Act was to give effect to the 1970 Hague Convention on the Taking of Evidence abroad in Civil or Commercial Matters^p. It repealed the Foreign Tribunals Evidence Act 1856, as amended, which previously operated in this field. At the same time the opportunity was taken to repeal and replace with the same new provisions the Evidence by Commission Act 1859, which previously regulated matters as between the different jurisdictions of the United Kingdom. The necessity of close collaboration between these jurisdictions is obvious, and exactly the same rules now govern the position as regards jurisdictions abroad. Under the 1859 Act a somewhat narrow view was taken by the English courts in477 connection with the enforcement in England of a Scottish commission and diligence for the recovery of documents: see Burchard v Macfarlane, ex parte Tindall. It was held that the production of documents by third parties could only be ordered as ancillary to the examination of the parties concerned as witnesses in the case. The decision was generally regarded by the Scottish legal profession as having the effect that no commission and diligence for the recovery of documents could ever be enforced against a third party in England. The essential feature of the commission and diligence procedure is that it enables documents which constitute evidence in the cause to be made available in advance of the trial so that they may receive due consideration and not be sprung on the other party in the course of the trial. It thus offers much convenience and is conducive to the better administration of justice. In the present case the Court of Appeal has taken the view that on a proper construction of the 1975 Act, the production of documents by a third party may be ordered, though not ancillary to the oral examination of that party as a witness. That view is not now challenged and is plainly right. I would further observe that, although commission and diligence to recover documents is part of pre-trial procedure, I can see no justification in the terms of the 1975 Act for refusing effect to it on that ground. Thus there is now greater scope for collaboration among the different jurisdictions of the United Kingdom, and also between these jurisdictions and those of countries abroad. So any letters rogatory should be approached in the spirit that they should receive effect to the fullest extent possible under our law. That was the approach adopted by the Court of Appeal in this case.

   The Court of Appeal deleted from Sch B certain categories of documents, and altered the description of certain other categories. In my opinion it was not within the power of the court to take the latter course, and I would, for my part, have carried the blue pencil exercise rather further than did the Court of Appeal, with a view to securing that the provisions of s 2(4) of the 1975 Act were properly satisfied. It is unnecessary in the circumstances to particularise the further deletions which, in my view, would have been appropriate.
   As regards the oral evidence sought to be obtained under the letters rogatory, I am of opinion that the Court of Appeal acted rightly in sustaining the order for examination of the persons named therein as witnesses. On the material made available I consider that there were reasonable grounds for the view that these persons might be in a position to give evidence relevant to Westinghouse's defence in the Virginia proceedings. In the face of a statement in letters rogatory that a certain person is a necessary witness for the applicant, I am of opinion that the court of request should not be astute to examine the issues in the action and the circumstances of the case with excessive particularity for the purpose of determining in advance whether the evidence of that person will be relevant and admissible. That is essentially a matter for the requesting court. Should it appear necessary to apply some safeguard against an excessively wide-ranging examination, that can be achieved by making the order for examination subject to a suitably worded limitation.
   There is nothing which I can usefully add on the question of privilege against self-incrimination arising under s 3(1) of the 1975 Act, or on the appropriateness, in the light of the intervention by the United States Department of Justice, of executing the letters rogatory.
   My Lords, I agree that the appeals of the RTZ companies and the individual witnesses should be allowed, that the order giving effect to the letters rogatory should be discharged, and that the appeals of Westinghouse should be dismissed.

Solicitors: Linklaters & Paines (for the RTZ companies and the individual witnesses); Freshfields (for Westinghouse); Treasury Solicitor.