Rio Tinto Zinc v. Westinghouse

[1978]		547
A.C.

[HOUSE OF LORDS]

RIO TINTO ZINC CORPORATION AND OTHERS

APPELLANTS

AND

WESTINGHOUSE ELECTRIC CORPORATION

RESPONDENTS

et e Contra

[On appeal from In re Westinghouse Electric Corporation Uranium Contract

Litigation M.D.L. Docket No. 235 (No. 1 and No. 2) ]

1977 May 25, 26 July 7, 8, 11

Lord Denning M.R., Roskill and Shaw L.JJ.

1977 Oct. 17, 18, 19, 20, 24, 25, 26, 27, 31; Dec. 1

Lord Wilberforce, Viscount Dilhorne, Lord Diplock, Lord Fraser of Tullybelton and Lord Keith of Kinkel

Evidence - Foreign tribunal, for - Jurisdiction of English court - Letters rogatory - Privilege against self-incrimination - Liability to fines under E.E.C. Treaty and American anti-trust legislation - Whether "penalties" - Testimony and documents - Whether required for use at trial - Civil Evidence Act 1968 (c. 64), s. 14 ¹ - Evidence (Proceedings in Other Jurisdictions) Act 1975 (c. 34), ss. 1, 2 (1) (2) (3) (4), 3 (1) ² - E.E.C. Treaty (Cmnd. 5179-II), arts. 85, 189, 192 - E.E.C. Council Regulation No. 17/62, art. 15

Practice - Discovery - Privilege - Self-incrimination - Uranium cartel - Order to produce company's documents to examiner - Company's fear of penalty proceedings by E.E.C. Commission - Whether risk appreciable - Whether company privileged against self-incrimination - Civil Evidence Act 1968, s. 14 (1) - E.E.C. Treaty (Cmnd. 5179-II), arts. 85, 89, 192 - E.E.C. Council Regulation No. 17/62, arts. 13, 14, 15 (2), 17

International Law - Letters rogatory - Extra-territorial investigations - Attempt to extend U.S. grand jury's investigations extra-territorially - Infringement of U.K. sovereignty

A United States corporation ("W") was sued in Virginia for breach of contract in relation to certain contracts to build

1 Civil Evidence Act 1968, s. 14: "(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty - (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law, ..."

2 Evidence (Proceedings in Other Jurisdictions) Act 1975, s. 1: "Where an application is made to the High Court ... for an order for evidence to be obtained in the part of the United Kingdom in which it exercises jurisdiction, and the court is satisfied - (a) that the application is made in pursuance of a request issued by or on behalf of a court ... ('the requesting court') exercising jurisdiction ... in a country or territory outside the United Kingdom, and (b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which ... have been instituted before the requesting court ... the High Court ... shall have the powers conferred on it by ... this Act."

S. 2: "(1) ... the High Court, the Court of Session and the High Court of Justice in Northern Ireland shall each have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence

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nuclear power stations. By their defence they alleged that the contracts had been made incapable of performance by reason of shortage of uranium and steeply rising prices which they attributed to the activities of an international cartel of uranium producers including two English companies, "R.T.Z." On the application of W, the judge of the Virginia court issued letters rogatory to the High Court in London asking it to order that named individuals appear before a U.S. consular officer in London to be examined in the litigation and that the two English companies, with which they were connected as officers or directors, should produce certain itemised documents or classes of documents. On October 28, 1976, a master made two orders giving effect to the letters rogatory. MacKenna J. and the Court of Appeal subsequently upheld his orders. R.T.Z. claimed privilege in respect of the documents on the basis that their production might render R.T.Z. liable to fines under the E.E.C. Treaty which was part of English law. MacKenna J. upheld the claim of privilege and on July 11, 1977, the Court of Appeal upheld his decision.

On June 8, 1977, the judge of the Virginian court upheld a claim by the individual witnesses to privilege under the Fifth Amendment to the U.S. Constitution on the ground of self-incrimination. On June 15, 1977, the judge was informed by the U.S. Department of Justice that it required the evidence of the witnesses for the purposes of a grand jury investigation started in Washington in 1976 into possible violations of the U.S. anti-trust laws by members of the alleged uranium cartel so as to initiate criminal proceedings if it saw fit. On July 18, 1977, the Department of Justice applied to the judge for an order to compel testimony under U.S.C. sections 6002/3, applicable when a witness claimed privilege on the ground of self-incrimination but under which no testimony compelled might be used against the witness in a criminal case. The judge made the order.

On appeal from the decision of the Court of Appeal by R.T.Z. and the persons named, on the one hand, and by W., on the other:-

Held, (1) (Viscount Dilhorne and Lord Fraser of Tullybelton dissenting), that the master's order rightly gave effect to the letters rogatory in respect of the production of documents, subject to amendments to confine their operation to areas allowed by English law and further (Viscount Dilhorne dissenting) that the order rightly gave effect to them as regarded the witnesses sought to be examined but (per Lord Wilberforce) subject to the disallowance of certain witnesses (post, pp. 611G - 612B, 636A - B, 652D, 654D, E).

Radio Corporation of America v. Rauland Corporation[1956] 1 Q.B. 618, D.C. considered.

in the part of the United Kingdom in which it exercises jurisdiction as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; ... (2) ... an order under this section may, in particular, make provision - (a) for the examination of witnesses, either orally or in writing; (b) for the production of documents, ... (3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order ... (4) An order under this section shall not require a person - (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b) to produce any documents other than Particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."

[1978]		549
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(2) That the companies were entitled to claim privilege against self-incrimination under section 14 (1) of the Civil Evidence Act 1968 in respect of the documents required to be produced, since production would tend to expose them to fines under articles 85, 189 and 192 of the European Economic Community Treaty, which cover penalties imposed by administrative action and recoverable in England by "proceedings ... for the recovery of a penalty" within section 14 (1) (post, pp. 612B-E, G, 627A-C, 628C, 632C-D, F, 636F-H, 637F, 646E, F,647G, 652D).

Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395, C.A. applied.

(3) That, in accordance with the ruling of the judge of the Virginian court, upholding the right of the individual witnesses to claim privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution, they could not, in consequence of section 3 (1) (b) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, be compelled to give evidence (post, pp. 615C, D, 632E, 639B, C, 647E - 648B,652D).

(4) That the intervention of the Department of Justice, converting the letters rogatory into a request for evidence for the purposes of a grand jury investigation, changed their character, seeking to use the Act of 1975 for purposes for which it was not intended by extending the grand jury's investigations internationally in a manner which was impermissible as being an infringement of United Kingdom sovereignty, a context in which the courts were entitled to take into account the declared policy of Her Majesty's Government (post, pp. 615E - 616A, 617B, 630H - 631A, F, G, 632F, 639F, 640D, E,650G - 651A, D, G).

Decision of the Court of Appeal (post, p. 558H); [1977] 3 W.L.R. 430; [1977] 3 All E.R. 703, upholding the implementation of the letters rogatory, reversed.

Decision of the Court of Appeal (post, p. 572B); [1977] 3 W.L.R. 492; [1977] 3 All E.R. 717, upholding the claims of privilege, affirmed.

The following cases are referred to in their Lordships' opinions in the House of Lords:

British Nylon Spinners Ltd. v. Imperial Chemical Industries Ltd. [1953] Ch. 19; [1952] 2 All E.R. 780, C.A.

Burchard v. Macfarlane, Ex parte Tindall [1891] 2 Q.B. 241, C.A.

Fagernes, The [1927] P. 311, C.A.

Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618; [1956] 2 W.L.R. 281, 612; [1956] 1 All E.R. 260, 549, Barry J. and D.C.

Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395; [1939] 2 All E.R. 613, C.A.

The following additional cases were cited in argument in the House of Lords:

Adams v. Adams (Attorney-General intervening) [1971] P. 188; [1970] 3 W.L.R. 934; [1970] 3 All E.R. 572.

Alterskye v. Scott [1948] 1 All E.R. 469.

American Banana Co. v. United Fruit Co. (1909) 213 U.S. 347.

American Express Warehousing Ltd. v. Doe [1967] 1 Lloyd's Rep. 222, C.A.

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Bèguelin Import Co. v. G. L. Import Export S.A. [1972] C.M.L.R. 81.

Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253; [1942] 2 All E.R. 187, C.A.

Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613; [1974] 3 W.L.R. 728; [1975] 1 All E.R. 41.

Gibbons v. Waterloo Bridge Co. Proprietors (1818) 5 Price 491; 1 Coop. Temp.Cott. 385.

Goldstone v. Williams, Deacon & Co. [1899] 1 Ch. 47.

Huntington v. Attrill [1893] A.C. 150, P.C.

Imperial Chemical Industries Ltd. v. E.C. Commission [1972] C.M.L.R. 557.

Jones v. Jones (1889) 22 Q.B.D. 425, D.C.

Lee v. Angas (1866) L.R. 2 Eq. 59.

Lotus, The (1927) P.C.I.J. Series A. No. 10, p. 29.

Maccallum v. Turton (1828) 2 Y. & J. 183.

McFadzen v. Liverpool Corporation (1868) L.R. 3 Ex. 279.

Newland v. Steere (1865) 13 W.R. 1014.

Panthalu v. Ramnord Research Laboratories Ltd. [1966] 2 Q.B. 173; [1965] 3 W.L.R. 682; [1965] 2 All E.R. 921, C.A.

Parkhurst v. Lowten (1819) 2 Swans. 194.

Penn-Texas Corporation v. Murat Anstalt [1964] 1 Q.B. 40; [1963] 2 W.L.R. 111; [1963] 1 All E.R. 258, C.A.

Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647; [1964] 3 W.L.R. 131; [1964] 2 All E.R. 594, C.A.

Reg. v. Andrews-Weatherfoil Ltd. [1972] 1 W.L.R. 118; [1972] 1 All E.R. 65, C.A.

Reg. v. Boyes (1861) 1 B. & S. 311.

Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057, H.L.(E.).

Reynolds v. Godlee (1858) 4 K. & J. 88.

Richardson v. Hastings (1844) 7 Beav. 354.

Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881; [1977] 3 W.L.R. 63; [1977] 3 All E.R. 677, C.A.

Seyfang v. G. D. Searle & Co. [1973] Q.B. 148; [1973] 2 W.L.R. 17; [1973] 1 All E.R. 290.

Short v. Mercier (1851) 3 Mac. & G. 205.

Soul v. Inland Revenue Commissioners (Practice Note) [1963] 1 W.L.R. 112; [1963] 1 All E.R. 68, C.A.

Suffolk (Earl of) v. Green (1739) 1 Atk. 450.

The following cases are referred to in the judgments of the Court of Appeal on May 26, 1977:

American Express Warehousing Ltd. v. Doe [1967] 1 Lloyd's Rep. 222, C.A.

Colne Valley Water Co. v. Watford and St. Albans Gas Co. [1948] 1 K.B. 500; [1948] 1 All E.R. 104, C.A.

Comet Products U.K. Ltd. v. Hawkex Plastics Ltd. [1971] 2 Q.B. 67; [1971] 2 W.L.R. 361; [1971] 1 All E.R. 1141, C.A.

Mexborough (Earl of) v. Whitwood Urban District Council [1897] 2 Q.B. 111, C.A.

Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618; [1956] 2 W.L.R. 281, 612; [1956] 1 All E.R. 260, 549, D.C.

[1978]		551
A.C.	In re Westinghouse Uranium Contract (C.A.)

Redfern v. Redfern [1891] P. 139, C.A.

Reg. v. Boyes (1861) 1 B. & S. 311.

The following additional cases were cited in argument:

Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253; [1942] 2 All E.R. 187, C.A.

Burchard v. Macfarlane, Ex parte Tindall [1891] 2 Q.B. 241, C.A.

Debtor (No. 7 of 1910) In re [1910] 2 K.B. 59, C.A.

Elder v. Carter Ex parte Slide and Spur Gold Mining Co. (1890) 25 Q.B.D. 194, C.A.

Hunnings v. Williamson (1883) 10 Q.B.D. 459.

Martin v. Treacher (1886) 16 Q.B.D. 507, C.A.

National Association of Operative Plasterers v. Smithies [1906] A.C. 434, H.L.(E.).

Panthalu v. Ramnord Research Laboratories Ltd. [1966] 2 Q.B. 173; [1965] 3 W.L.R. 682; [1965] 2 All E.R. 921, C.A.

Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647; [1964] 3 W.L.R. 131; [1964] 2 All E.R. 594, C.A.

Reg. v. Lewes Justices Ex parte Secretary of State for the Home Department[1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057, H.L.(E.).

Seyfang v. G. D. Searle & Co. [1973] Q.B. 148; [1973] 2 W.L.R. 17; [1973] 1 All E.R. 290.

Soul v. Inland Revenue Commissioners (Practice Note) [1963] 1 W.L.R. 112; [1963] 1 All E.R. 68, C.A.

The following cases were referred to in the judgments of the Court of Appeal on July 11, 1977:

Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253; [1942] 2 All E.R. 187, C.A.

Brebner v. Perry [1961] S.A.S.R. 177.

Lamb v. Munster (1882) 10 Q.B.D. 110.

National Association of Operative Plasterers v. Smithies [1906] A.C. 434, H.L.(E.).

Parry-Jones v. Law Society [1969] 1 Ch. 1; [1968] 2 W.L.R. 397; [1968] 1 All E.R. 177, C.A.

Quinine Cartel, In re [1969] C.M.L.R. D41.

Redfern v. Redfern [1891] P. 139, C.A.

Reg. v. Boyes (1861) 1 B. & S. 311.

Reg. v. Garbett (1847) 1 Den.C.C. 236.

Reynolds Ex parte (1882) 20 Ch.D. 294, C.A.

Short v. Mercier (1851) 3 Mac. & G. 205; 15 Jur. 93; 20 L.J.Ch. 289.

Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395; [1939] 2 All E.R. 613, C.A.

No additional cases were cited in argument.

INTERLOCUTORY APPEALS from MacKenna J.

On October 21, 1976, Judge Merhige in the United States District Court for the Eastern District of Virginia, Richmond Division granted the applications of Westinghouse Electric Corporation ("Westinghouse") to issue two letters rogatory to the High Court asking that court to issue process causing named persons to appear before a consular officer

[1978]		552
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of the United States in London, to be examined orally, as witnesses in actions in Virginia and causing two English companies, Rio Tinto Corporation Ltd. and RTZ Services Ltd. ("RTZ"), with which the named persons were connected as officers or directors, to appear at the oral examination of the witnesses to produce itemised documents. Persuant to the letters rogatory and to the Evidence (Proceedings in Other Jurisdictions) Act 1975 and R.S.C., Ord. 70, Master Creightmore on October 28, 1976, made two orders (1) that Peter Daniel, Jean Loup Dherse, the Rt. Hon. Lord Shackleton of Burley, Sir Ronald Mark Cunliffe Turner and Roy William Wright to attend before the consul, vice-consul or consular officer of the United States Embassy on a named date to be examined on oath or affirmation touching evidence required for civil proceedings in Virginia, and that RTZ by its director and proper officer Andrew Edward Buxton produce at the oral examination the documents enumerated in Schedule B to the letter rogatory, (2) a similar order naming Andrew Edward Buxton and Kenneth E. Bayliss as witnesses and RTZ Services Ltd. by its director and proper officer Andrew Edward Buxton as the company to produce the documents enumerated in schedule B to the other letter rogatory.

On February 22, 1977, Master Jacob upheld the order of Master Creightmore and on May 10, 1977, MacKenna J. dismissed appeals from Master Jacob.

RTZ and the persons named appealed on the grounds that the judge erred: (1) in holding that the order sought for the production of documents was within section 2 (4) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, for the following reasons; (a) the order would require RTZ to state what relevant documents were or had been in its possession, custody or power, contrary to section 2 (4) (a); (b) the documents sought were not "particular documents" within the meaning of section 2 (4) (b); (2) in holding that the onus on an applicant for the production of documents under the Act was only to show that the documents appeared to be likely to exist, and that the applicant need not show that they did in fact exist; (3) in finding that all the documents sought appeared to be likely to exist, and appeared to be likely to be in the possession, custody or power of RTZ; (4) in holding that the Act did not require that the documents sought be ancillary to the oral testimony of a witness at the trial; and erred in fact in finding that the documents sought were so ancillary; (5) in that he considered de novo the question of what directly relevant oral testimony the persons named in the letters rogatory would have to give; and ignored the fact that the judge who issued the letters rogatory had not considered the question whether the named persons did have such evidence to give, and that there was no evidence before that judge on which he could have answered that question in the affirmative; (6) in deciding for himself whether the named persons had directly relevant evidence to give. he erred in law in holding that the onus on an applicant under the Act was only to show that the named persons were likely to have such evidence to give, and that the applicant need not show that they did in fact have such evidence to give; and erred in fact in finding that

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all the persons named in the letters rogatory were likely to have relevant evidence to give; (7) in holding and/or in finding that the request, both for oral and documentary material, was not an application for discovery against persons not parties to the United States proceedings in respect of which the letters were issued. In particular, the judge failed to take any or any sufficient account of the breadth of the description of the documents sought; or of the fact that the judge who issued the letters had not decided that the material sought would be directly relevant at the trial of the action, and indeed stated that he did not know how relevant the material would be. The judge further attached undue importance to statements made on behalf of Westinghouse that they intended to use all the material sought at the trial of the action; (8) in holding that the request, both for oral and documentary material, was not objectionable by reason of the fact that it was made by the United States court as part of its pre-trial discovery procedure; (9) in the exercise of his discretion in ordering production of the documents sought in that he failed to take any or any proper account of the fact that the material, in so far as it tended to prove the issues to which Westinghouse alleged it related, would also be relevant in certain antitrust proceedings pending in the United States District Court for the Northern District of Illinois, Eastern Division, in which proceedings RTZ were defendants and in which they had elected to take no part on the ground that the Illinois court had no jurisdiction, and (10) in the exercise of his discretion in ordering that the named persons do attend to give oral testimony in that he failed to direct himself correctly in the application of the Fifth Amendment of the United States Constitution, or to consider adequately the implications thereof.

By a respondent's notice, Westinghouse contended that MacKenna J.'s judgment should be affirmed on the additional grounds that (1) under the provisions of the Act of 1975 there was no requirement that documents ordered to be produced must be ancillary to the oral evidence of witnesses; and (2) the privilege against exposure to proceedings for the recovery of a penalty under section 14 of the Civil Evidence Act 1968 did not confer any right to refuse to answer any question or produce any document on the grounds that to do so would tend to expose the person claiming the privilege to the imposition of a fine under article 85 or 86 of the Treaty of Rome and articles 14 or 15 of E.E.C. Regulation No. 17/62.

The facts are stated in the judgment of Lord Denning M.R.

Raymond Kidwell Q.C. and Richard Wood for RTZ and the persons named in the orders. These letters rogatory were issued referring not only to the companies in England but also to companies in Canada and Australia (both of which have passed legislation on the matter). The court is concerned with a very wide ranging request. Comity comes into the issue and there may well be a predeliction to do what the American courts wish. English courts only act where the documents are properly specified and not where there is an attempt to obtain discovery. The court has to inquire whether the American pre-trial procedure was

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in the United States Court's mind. The appellants are not parties to the proceedings in that court and the request is oppressive.

Section 1 of the Foreign Tribunals Evidence Act 1856 (19 & 20 Vict., c. 113) provided for the examination of witnesses in this country in a cause pending before a foreign tribunal and section 5 gave a right of refusal to answer questions and produce documents tending to incriminate. See now the Evidence (Proceedings in Other Jurisdictions) Act 1975, ss. 2 and 3. Although the question of privilege does not at present arise, the common market legislation whereby the companies may be subject to penalties and the United States Fifth Amendment may have to be considered.

The intention of the Act of 1975 is that the documents requested to be produced should be ancillary to oral testimony (see sections 1 and 2). Section 2 (1) emphasises the court's discretion by twice using the word "may." Section 2 (4) gives effect to the judicial interpretation of the Act of 1856. Section 3 deals with privilege. R.S.C., Ord. 70, r. 6, is a new rule, "Claim to Privilege" (see The Supreme Court Practice 1976, Supplement No. 5, para. 70/6) introduced to give effect to section 3 (1). R.S.C., Ord. 70, gives teeth to the statute: see r. 4 on the taking of the examination and the note 70/4/3 thereto. R.S.C., Ord. 39, r. 5, shows how the question of a claim to privilege is dealt with in English law. R.S.C., Ord. 38 deals generally with our rules for obtaining evidence: r. 14 deals with writs of subpoena (see form No. 28 in Appendix A, The Supreme Court Practice 1976, vol. 2, p. 17). R.S.C., Ord. 38, r. 13 (order to produce document at proceeding other than trial) is taken from the former R.S.C., Ord. 37, r. 7.

The court has to ask whether this is a request for the production of specific documents or for ranging discovery. Persons who are not parties to an action should not be put into the position where they have to give discovery. Although comity must be considered, the English courts in applying the Act of 1975 must apply English principles and not American pre-trial procedure.

The letters rogatory partake of the nature of discovery and are not within the scope of the Act of 1975. They are not particular specified documents which must be shown to exist. The order is oppressive. It is open to the court to use a blue pencil. It is for Westinghouse to ensure that the letters rogatory are in the proper form. If the claim is too wide the court in its discretion can give nothing. Section 2 (4) of the Act of 1975 is very restrictive: even more so than the common law principles. The language used is the language of discovery.

If on a broad view the classification is an exercise in discovery the whole letters rogatory should be rejected. The important word in section 2 (4) of the Act of 1975 is "specified," and the Act separates oral testimony and documents. The production of documents should be limited to documents ancillary to the oral testimony and should also limit the numbers of specified documents to be produced. The shutter should be brought down as soon as it appears that what is sought is roving discovery. Under the Act of 1856 and in pre-Act of 1975 authorities documents were treated as ancillary to oral testimony. The order as it stands could lead to an unlimited inquiry into the whole uranium business conducted over

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five years, such inquiry arising out of the documents. Though it may be difficult to limit examination of witnesses, the court should exercise a discretion as it has done in the past, despite the different words used in the Act of 1975. It is implicit in section 2 (4) that there cannot be a fishing inquiry by making an order on an oral witness where the first question to the witness could be: what documents have you got? or what documents are in the possession and power of your company?

The crucial question is whether the evidence asked for is for use at the trial or for discovery. This order is in such wide terms as to fall outside the scope of our interrogatories. The court should still prefer the approach in the old cases and should not lend its process under this Act to give discovery to the extent implicit in the letters rogatory where the order for documents is directed to the company and that for oral evidence is directed to a person. Under section 3 (1) the witness is not to be compelled to give evidence which he could not be compelled to give in civil proceedings in England.

T. H. Bingham Q.C. for Westinghouse intervening. The order only permits the asking of relevant questions and if a question is not relevant it will not be asked. It is the examiner who will rule on a refusal to answer a question on the ground that it is irrelevant.

Kidwell Q.C. continuing. In the English authorities the phrases "directly relevant" and "indirectly relevant" have been used; the present categories are "relevant" or "not relevant" to the civil proceedings. "Not relevant" should be limited as in the decided cases. Though the evidence permitted under the Act of 1975 is "for the purposes of civil proceedings" the courts have always refused to make an order where what is asked for is an exercise in pre-trial discovery.

The letters rogatory are so wide as they stand that they should be rejected.

[ROSKILL L.J. The whole purpose of the new Act is to widen the power to assist foreign courts.]

That could have been said of the Act of 1856. The courts had the power to make the orders but looked at each case on its merits: see Elder v. Carter, Ex parte Slide and Spur Gold Mining Co. (1890) 25 Q.B.D. 194. In Burchard v. Macfarlane, Ex parte Tindall [1891] 2 Q.B. 241, where only one small file was involved, the court held it had no jurisdiction to make the order because it was thought that inspection and discovery, not evidence, was sought. That attitude was maintained in Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618. [Reference was also made to Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647; Panthalu v. Ramnord Research Laboratories Ltd. [1966] 2 Q.B. 173; American Express Warehousing Ltd. v. Doe[1967] 1 Lloyd's Rep. 222 and Seyfang v. G. D. Searle & Co. [1973] Q.B. 148.] The court has always exercised a discretion and should do so under the new Act, even while bearing in mind the desirability of respecting comity when a request has been made. There is a difference between pre-trial discovery and evidence on commission which will be available at the trial. The American procedure on documents is the same as ours though they may require wider disclosure of indirectly relevant

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documents. Twenty five nations at the Hague Convention agreed that the proper meaning of "for the purposes of civil proceedings" is "for use in civil proceedings." There is a duty on the court to make only such limited orders as are proper under English procedure. [Reference was made to National Association of Operative Plasterers v. Smithies [1906] A.C. 434.]

The E.E.C. point on articles 85 and 86 is very important. The question is whether those articles can bite on the alleged cartel. A decision on the impact of those articles at the present stage would be based on inadequate information. Common market law is not the same as United States anti-trust law.

T. H. Bingham Q.C. and Timothy Walker for Westinghouse. What the United States judge is asking for is trial testimony, "the taking of that testimony and the production of documents" by June 3 for the trial in August in Virginia. Westinghouse face a suit for $200m. and believes it has a good defence so it is not surprising that this information is wanted. The distinction between "pre-trial" and "trial" discovery arises because this country and the United States may be divided by a common language; the Americans use the expression "pre-trial discovery" for what we call evidence on commission. The judge may be asking for evidence which could either be produced at the trial or which will open up a line of inquiry; but all the matters come under one umbrella. It was made clear to those making the application under the Act of 1975 that a fishing expedition would not be allowed by the English court and undertakings have been given that all the material obtained under the letters rogatory will be put in at the trial.

This court will be slow to go behind a request from a United States judge for material "for the trial." If the appellants' submissions were accepted it would put real obstacles in the way of a foreign state and would be contrary to the spirit of the Act of 1975.

The question is whether what the foreign court is asking for is something which by English notions goes further than what is permissible in domestic proceedings. Section 2 of the Act of 1975 does not restrict the principles on which the court will act. Each head in section 2 (2) has an analogy in terms of our own rules of court to bring into line with our own procedure what we are willing to do for others. Section 2 (4) is a prohibition of an order for discovery and sub-paragraph (b) has two requirements: that the documents shall be "specified" and also whether they are likely to be in the "possession, custody or power" of the person concerned. The court's observations in American Express Warehousing Ltd. v. Doe [1967] 1 Lloyd's Rep. 222, all apply to the present case. The list of documents, though long, is limited in the way it ought to be; they are sufficiently specified. [Reference was made to Soul v. Inland Revenue Commissioners (Practice Note) [1963] 1 W.L.R. 112.] The documents in the list are "reasonably distinct," are shown to be likely to exist and to be in the possession of the appellants. The question is: is the United States court asking for something we call discovery and therefore will not grant, or is it something which in English terms we would call the taking of evidence on commission? What the judge has asked for is something different. It is a written application for material "for use at the trial." The Radio Corporation case [1956] 1 Q.B. 618 is distinguishable for there

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the letters rogatory were a pure fishing expedition, a general order for discovery without putting any burden on the parties to whom they were addressed to decide what was relevant: see also Burchard v. Macfarlane Ex parte Tindall [1891] 2 Q.B. 241, 247.

Equity, whose procedure led to the disclosure of documents, disliked helping common informers recover penalties. As to "Community Judgments Enforceable in the U.K.," see The Supreme Court Practice 1976, vol. 1, p. 1116, note 71/15-24/2 to R.S.C., Ord. 71, r. 24. In an action to recover penalties the plaintiff was not entitled to administer interrogatories or to discovery under the old R.S.C, Ord. 31: Hunnings v. Williamson (1883) 10 Q.B.D. 459. In an action for penalties by a common informer leave would not ordinarily be given to the plaintiff to administer interrogatories: Martin v. Treacher (1886) 16 Q.B.D. 507. A large number of common informer actions were abolished by the Common Informers Act 1951.

The first safeguard is relevance. The Americans can designate a document "confidential" or "specially confidential": they have a clear procedure designed to see that confidentiality is not abused. R.S.C., Ord. 39, r. 5, deals with the refusal of a witness to attend or be sworn where evidence is given by deposition. Westinghouse are not interested in the contents of documents but in evidence of what happened. [Reference was made to section 51 of the Taxes Management Act 1970 and section 499 of the Income Tax Act 1952.] "Penalty" is a term of art to be construed in a strict historical context. The origin of Inland Revenue enforcement lay with people employed as common informers. There must be a real risk of proceedings for the recovery of a penalty. It is E.E.C. Regulation No. 17/62 which provides that the Commission can impose fines on undertakings which intentionally or negligently break article 85 of the E.E.C. Treaty (article 15, para. 2). The Fifth Amendment applies to individuals only and does not apply to companies.

Kidwell Q.C. on privilege. If RTZ and those named in orders are heavily fined they will not be impressed by the argument that the ancient privilege against self-incrimination is not available to them. Ecclesiastical censure by being excluded from Holy Communion was once a ground for claiming privilege.

Forfeiture of a lease is a purely civil matter between landlord and tenant. This privilege against self-incrimination was stoutly asserted until It was abolished by section 16 (1) (a) of the Civil Evidence Act 1968: see in particular per Lord Esher M.R. in Earl of Mexborough v. Whitwood Urban District Council [1897] 2 Q.B. 111, 115.

Section 14 (1) (a) of the Civil Evidence Act 1968, recognising the privilege against self-incrimination applies to "a person" in "proceedings for an offence or for the recovery of a penalty." It is a fundamental principle of English law that a man cannot be compelled to incriminate himself out of his own mouth: see its application to bankruptcy in In re A Debtor (No. 7 of 1910) [1910] 2 K.B 59, 61, 63. The provisions of the Treaty of Rome, including articles 85 and 86, are now part of our law: see section 2 of the European Communities Act 1972. Section 3 of the Act of 1975 is concerned to protect these ancient privileges. [Reference was made to Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253, 256.] In Colne Valley

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Water Co. v. Watford and St. Albans Gas Co. [1948] 1 K.B. 500 the principle was so well recognised that the whole case turned on whether it was a claim for damages or a penalty. Penalties like liquidated damages were the subject of privilege.

The great ancient privilege against self-incrimination is not confined to criminal self-incrimination. The protection is against any process with a punitive element. A man may have a suit against me, either civil or criminal, but he may not make it out of my mouth. The European Communities (Enforcement of Community Judgments) Order 1972 (S.I. 1972 No. 1590) came into force when the United Kingdom became a member of the European Communities. By article 15, paragraph 2 of General Regulations No. 17 of February 6, 1962 the Commission can impose fines on undertakings intentionally or negligently breaking article 85.

The wording of the orders is much too wide, the words "memoranda ..." should be out. Lord Denning M.R. in Comet Products U.K. Ltd. v. Hawkex Plastics Ltd. [1971] 2 Q.B. 67, 74, said that "the genius of the common law" had prevailed since the days of Sir William Blackstone to prevent a defendant being a compellable witness in "contempt proceedings against him." See also per Bowen L.J. in Redfern v. Redfern [1891] P. 139, 147. [Reference was made to American Express Warehousing Ltd. v. Doe [1967] 1 Lloyd's Rep. 222; the Foreign Tribunals Evidence Act 1856, s. 1; and R.S.C., Ords. 24, r. 7 and 39, r. 5.] These are "pre-trial proceedings, proceedings by way of discovery": see per Devlin J. in Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618, 646.

On the Fifth Amendment point, it is unsatisfactory that in American proceedings an untrained, unqualified, consular officer should be presiding at the examination. He will know nothing about the privilege against self-incrimination.

Bingham Q.C. in reply on privilege referred to the Radio Corporationcase [1956] 1 Q.B. 618, 644, 648; Cross, Evidence, 4th ed. (1974), pp. 243-244 and Earl of Mexborough v. Whitwood Urban District Council[1897] 2 Q.B. 111, 114. The facts in In re A Debtor [1910] 2 K.B. 59 give the clue to the case. Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253 shows that the courts move with the times. In the Colne Valley Water Co. case [1948] 1 K.B. 500, 504, Diplock for the gas company was not called upon to argue. [Reference was made to the Income Tax Act 1952, s. 499 (2) and (3) and the Taxes Management Act 1970, s. 100.] "Penalty" has a specialised historical meaning and does not include everything that is penal. There is a difference between Revenue proceedings and European Commission proceedings. A tendency to expose a person to a penalty is different from tending to expose him to proceedings for a penalty. The maxim cessante ratione legis, cessat ipsa lex applies.

Kidwell Q.C. in further reply referred to Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388.

LORD DENNING M.R. As this is an urgent matter we will give judgment straight away. It arises out of a dispute now going on in the

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United States of America. In the 1960s the Westinghouse Electric Corporation made contracts with power companies under which Westinghouse were to build nuclear power stations and to supply them with uranium as a fuel. The prices were stated in the contracts. There was an escalation clause to meet increases in the general cost of living, but not to meet changes in the market price of uranium.

At the time when Westinghouse agreed to supply this uranium, the price was comparatively low, but in the middle 1970s, especially after the raising of the oil prices, the price of uranium rose very sharply. In February 1973 it was only $6 a pound, but three years later it had risen to $41 a pound. The result was that Westinghouse found themselves in great difficulty, both in getting uranium and in supplying it to the power stations. So much so that they were unable to fulfil their contracts. They sought to excuse themselves on the ground that the performance of them was "commercially impracticable"; a line of defence with which we are familiar in England, and known as "frustration owing to supervening circumstances."

Then the power companies brought proceedings against Westinghouse in the States of Virginia and Pennsylvania. In addition there is an anti-trust suit in the State of Illinois. The amount in dispute is extremely large, $2,000 million or £1,000 million sterling.

At first sight this dispute seems to have nothing to do with England at all or any of us. But it appears that in Australia about a year ago someone surreptitiously got access to the files of an Australian uranium producer and Westinghouse got hold of those files. They disclosed the existence of an international cartel in uranium. This cartel was an association by which the big producers of uranium combined to regulate the output of uranium and the price of it. We are told that Australia, Canada, South Africa, France and the English company of Rio Tinto were parties to this cartel. Its object is said to have been to manipulate the market in uranium, to limit competition and to force prices up to excessively high levels. The files showed that in about 1972 there was formed a policy committee, an operating committee and a secretariat.

To aid their defence in America, Westinghouse want to prove the existence of this cartel and its dealings. They want to see all the documents which have been passing between the members and the notes of all the meetings. They desire to show the existence of this "conspiracy," as they would call it, to keep up prices. They have tried and failed in Australia, Canada, France and South Africa. We were told that in those countries regulations have been passed so as to forbid the documents of the cartel being disclosed. Now Westinghouse seek to get them from Rio Tinto in England.

There are no regulations in England forbidding access to these documents. The disclosure of them depends on our ordinary rules of law. We have before us a courteous request from the United States District Court for the Eastern District of Virginia, Richmond Division. It has asked us to order the Rio Tinto Zinc Corporation Ltd. and its principal directors, Sir Ronald Mark Cunliffe Turner, Lord Shackleton of Burley

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and others, to produce the documents relating to this cartel, and also to give evidence here in England. The federal judge, Judge Robert R. Merhige Jr., has issued two letters rogatory (which we call letters of request) addressed to us on October 21, 1976. The actual words are worth noting:

"The People of the United States of America to the High Court of Justice in England. Greetings:

"Whereas, certain actions are pending in our District Court for the Eastern District of Virginia, Richmond Division, in which the corporations listed in Schedule A attached hereto are plaintiffs and Westinghouse Electric Corporation is defendant, and it has been shown to us 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 residing in your jurisdiction, being directors ... of the RTZ Services Ltd. ... nor without the production of certain documents in the possession of the RTZ Services Ltd. ... related to the existence and terms of various agreements, arrangements or concerted practices between RTZ Services Ltd. and the following entities ... Rio Tinto Zinc Corporation Ltd. (England) ... And whereas the existence and terms of such agreements, arrangements or concerted practices are relevant to the matters in issue in the actions at present in this court.

"We, therefore, request that in the interest of justice, you cause by your proper and usual process [Sir Ronald Mark Cunliffe Turner and others] ... to appear before any consul or vice-consul or other consular officer of the United States at London ... to be examined orally as witnesses ... and ... cause the said RTZ Services Ltd. ... 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 the RTZ Services Ltd. ..."

The letter rogatory finished with the assurance: "and we shall be ready and willing to do the same for you in a similar case when required."

A few days ago on May 20, Federal Judge Merhige made a supplement to these letters in which he makes it clear that the letters rogatory are concerned with material that is required not merely for pre-trial procedure (as it is called in the United States of America) but for evidence and documents for actual use at the trial. He tells us that he has ordered that the trial of the proceedings in Virginia shall commence on August 22, 1977. He desires that all proceedings here be completed at the earliest possible date, so that the plaintiff shall have an adequate opportunity to consider such testimony and documents in connection with the presentation of their case.

Such is the request made by the United States Federal Court. It is our duty and our pleasure to do all we can to assist that court, just as we would expect the United States court to help us in like circumstances "Do unto others as you would be done by."

In answering this request, we have to go by our English statutes. Until 1975 the law on this subject was governed by the Foreign Tribunals

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Evidence Act 1856. There have been many decisions on that Act. Notably, in our present context, is the Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618. The Divisional Court there made it quite plain that we should not accede to anything in the nature of a roving inquiry in which a party sought to "fish out" something. (It was thought that pre-trial discovery was of this nature.) But that case should not be read as putting any difficulty in the way of relevant evidence and ancillary documents. That was made clear by the latest case before the new Act. It was American Express Warehousing Ltd. v. Doe [1967] 1 Lloyd's Rep. 222.

The Act of 1856 has now been replaced by the Evidence (Proceedings in Other Jurisdictions) Act 1975. It was passed so as to give effect to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1968 (Cmnd. 3991 of 1969). It makes new provision for enabling the High Court to assist foreign courts in obtaining evidence here. Section 2 is expressed in much wider language than the Act of 1856. The High Court is empowered to make provision for the examination of witnesses, for the production of documents, for the inspection of property and many other things which were not within the Act of 1856 at all. So long as the evidence is required for use in civil proceedings, the request of the foreign court should usually be granted; provided that the evidence is relevant to the issues in dispute in the foreign court. (The only limitations are those contained in section 2 (4) and section 3. They require separate consideration.)

Mr. Kidwell made, however, a general submission. He asked us to throw out these letters regatory altogether. He submitted that this case is just like the Radio Corporation case [1956] 1 Q.B. 618. The United States court, he said, want the documents for "pre-trial discovery" - in the sense in which that phrase was there used (see p. 620) - that is to discover documents which are not necessarily relevant in the trial, but they "might lead to a line of inquiry which would itself disclose relevant material": per Devlin J. at p. 643.

The first answer to this is given by Federal Judge Merhige himself. In his latest supplement to the letters rogatory he made it clear that that court requires the documents, not for pre-trial discovery, but for use at the actual trial itself which has been listed for August 22, 1977. The second answer is to be found in the Convention. It deals with pre-trial discovery in article 23 which said:

"A contracting state may at the time of signature, ratification or accession, declare that it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries."

The United Kingdom, when it ratified this, did not make any such declaration. So I cannot accept Mr. Kidwell's general submission.

Turning now to the statutory limitations. Section 2 (4) (a) says:

"An order under this section shall not require a person - (a) to state what documents relevant to the proceedings to which the application

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for the order relates are or have been in his possession, custody or power."

That seems to me to exclude what we would call a "fishing inquiry." A witness cannot be required to make a general affidavit of documents. To that extent it excludes pre-trial discovery. Section 2 (4) (b) says that the order shall not require a person:

"to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."

So the only documents which can properly be the subject of an order are

"particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."

This also, in a way, excludes pre-trial discovery too.

We have had some discussion as to whether the documents in those letters rogatory are sufficiently specified. They are in Schedule B with sub-headings from 1 to 81. It contains many documents which are specified as being or likely to be in the possession of Rio Tinto. Most of them are particular documents which are specified sufficiently. For instance, all underlined in green and those underlined in pencil seem to me to be sufficiently specified. But some of the words in the subheadings seem to me to be rather too wide. They have these words, "and also all memoranda, letters and other documents in its files relating to" the foregoing. Those words were used in the American Express case [1967] 1 Lloyd's Rep. 222. They may have to be narrowed a bit. I think the words "relating thereto" cast the net too widely. It would be better to limit them more specifically, such as "referred to therein" or some such words. The point is that the documents should be specified with such distinctiveness as would be sufficient for a subpoena duces tecum. The description should be sufficiently specific to enable the person to put his hand on the documents or the file without himself having to make a random search - in short, to know specifically what to look for.

Going through the documents, no. 16 seems to me to be cast too widely. The person ought not to be required to chase through masses of documents to see whether this or that may or may not relate to the dispute. There may be other items too. On the whole the list seems to be valid, but it may need some modification so as to be sure the documents are sufficiently specified so as to satisfy the section of the statute.

There is no similar provision in regard to oral testimony. The limitation in section 2 (4) only applies to documents. So far as evidence is to be given, by word of mouth, the witnesses can, I think, be required to answer any questions which fairly relate to the matters in dispute in the foreign action. Mr. Kidwell asked us to disallow questions of a roving nature, but I do not think the order can or should be so limited. The only practical test of any question is: "Is it relevant? Does it

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A.C.	In re Westinghouse Uranium Contract (C.A.)	Lord Denning M.R.

relate to the matters in question?" No one would wish the witnesses to be asked about irrelevant matters or to go into other things with which the dispute is not concerned. But it is said there is a difficulty. The witnesses are not conversant with the issues in the case. They do not know what is relevant, and what is not. Any difficulty on that score is readily overcome. By agreement (and I think even without agreement) these witnesses, when they are asked to give evidence, can and should have legal advisers at their elbow. There are very reputable and responsible advisers on each side. If a question is irrelevant the witness will be told and advised not to answer. So the point can and should be resolved by the responsible lawyers on each side without difficulty.

Now I come to the really troublesome question, that is, the question of privilege. We have a rule here against self-incrimination. The common law has for centuries held that a person is not bound to answer a question which may render him liable to punishment, penalty or forfeiture. In the United States under the Fifth Amendment an individual (not a company) is entitled to a privilege by which he is not bound to answer questions by which he may incriminate himself.

Take fist our English position. We discussed it in the recent case of Comet Products U.K. Ltd. v. Hawkex Plastics Ltd. [1971] 2 Q.B. 67. I quoted at p. 73 Bowen L.J. as saying in Redfern v. Redfern [1891] P. 139, 147:

"It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, ... 'no one is bound to criminate himself'."

That privilege prevailed in England until an inquiry by the Law Reform Committee, 16th Report in 1967 (Cmnd. 3472). They recommended that the privilege in regard to forfeiture should be abolished. It had been upheld in Earl of Mexborough v. Whitwood Urban District Council[1897] 2 Q.B. 111. It was expressly abolished by the Civil Evidence Act 1968, section 16 (1) (a).

But the privilege in respect of penalties was not abolished. It was retained by section 14. It says:

"(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; ..."

Mr. Bingham submitted that the word "penalties" should be confined to penalties in revenue cases. He referred us to the report of the Law Reform Committee which said in paragraph 13: "Actions for penalties are now obsolete except in revenue cases." He referred us also to a case about penalties in the Water Works Clauses Acts of Colne Valley Water Co. v. Watford and St. Albans Gas Co. [1948] 1 K.B. 500: he said that they, too, had become obsolete. He pointed out, quite rightly,

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that in the old days common informers used to sue for penalties under various Acts but these had all been replaced by summary proceedings before the magistrates. I appreciate the force of these submissions, but I am afraid I do not feel able to give effect to them. The statute retains the privilege in respect of penalties provided for by "the" law of any part of the United Kingdom and I do not see that we can escape from it. There is, after all, good reason for retaining it - the same reason as lay behind its introduction centuries ago. No person should be compelled to expose himself to pains or penalties out of his mouth. If he is to be penalised for wrongdoing, it should be proved against him by those who accuse him.

Mr. Bingham did raise another argument of a semantic nature. He stressed the words proceedings "for the recovery of a penalty." He said that the privilege was allowed when a person was in danger of an action to recover a penalty; but not to a case in which a person might be liable to have a penalty imposed on him without an action. That is too fine a distinction for me. If he is liable to a penalty, it matters not whether it is recoverable by action or otherwise.

So in my view the word "penalty" includes a penalty to which a person may be subject under the law of any part of the United Kingdom.

Now I come to the community law. None of the witnesses in this case would be liable to a penalty under the old law of England. But since 1972 everything is different. We are now in the European Economic Community. The Treaty of Rome ("E.E.C." Treaty signed at Rome, March 25, 1957) and all its provisions are now part of the law of England. That is clear from section 2 of the European Communities Act 1972. We have to give force to the Treaty as being incorporated - lock, stock and barrel - into our own law here.

One of the most important of the provisions of the Treaty is article 85. It is wide enough to prohibit any cartel or association of producers by which they agree to keep up prices or to limit competition in a way which affects the common market. It says:

"... all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical developments, or investment;"

and so on, are prohibited. It goes on to say that all those that are so prohibited are automatically void.

If the allegations made by Westinghouse are well-founded, it does look as if the Rio Tinto company and the French companies were parties to an agreement which had, as its object, the restriction of competition and the fixing of selling price; and that this would affect the trade between member states as interpreted by the European Court. So there would be a breach of article 85 by Rio Tinto.

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But what are the consequences? For these we have to turn to the regulations which are binding as part of English law. Article 189 says: "A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states." The material regulations are the General Regulations No. 17 of February 6, 1962. Article 15, paragraph 2 says that the Commission may impose fines on undertakings (not on individuals) who intentionally or negligently break article 85. The fines may be as much as 1,000 million units of account, or not exceeding 10 per cent. of the turnover in the preceding business year. In fixing the amount of the fine, regard shall be had both to the gravity and the duration of the infringement.

It is plain, therefore, that Rio Tinto may be exposed to a very large fine by the European Commission. Is it a penalty? I think it is. It is a penalty for entering into an agreement to restrict competition or to fix prices contrary to article 85. It is to be noted that article 15, paragraph 4 of the General Regulations says: "The decisions taken under paragraphs 1 and 2 shall not entail any consequences under criminal law." That is inserted because the Treaty in article 192 provides that enforcement of fines and so forth "shall be governed by the rules of civil procedure in force in the state in the territory of which it is carried out." So the fines are not enforceable by the sanctions of criminal law. Only by the civil procedures of the state. In this case, by the civil procedure of the English courts. Nevertheless they are clearly "penalties" just as much as the penalties under revenue law are penalties enforceable by civil procedures: see sections 93 to 100 of the Taxes Management Act 1970. And they are "provided for by" the "law of ... the United Kingdom," because the Treaty is part of our law. So liability to them is a ground for privilege against self-incrimination.

All I have said about "penalties" is, however, a preliminary view - given because the parties requested it. It is preliminary in case the company claims a privilege, on the ground that it may expose itself to penalties by the European Commission. If the company does claim privilege, the examiner must give effect to it. It is preserved by section 3 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, which provides:

"(1) A person shall not be compelled by virtue of an order under section 2 above to give any evidence which he could not be compelled to give (a) in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction, ..."

Applied to this case, if Rio Tinto Zinc claim privilege saying: "We would be exposed to penalties at the instance of the European Commission" then they have a privilege against self-incrimination and can take the objection before the examiner.

If, however, circumstances arose so as to show that there is no "real or appreciable" danger to the Rio Tinto company of being fined or exposed to a penalty, the privilege would be lost: see Reg. v. Boyes(1861) 1 B. & S. 311, 330. So if the European Commission said they

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were not going to take any proceedings, there would not be any risk and the privilege would go.

Turning now to the American position. Section 3 (1) (b) of the Act of 1975 says that a person shall not be compelled to give evidence which he could not be compelled to give "in civil proceedings in the country or territory in which the requesting court exercises jurisdiction." So under these letters rogatory when an individual witness was asked to give evidence, he could claim the privilege given by the Fifth Amendment. He could say: "I am giving evidence for the purpose of being used in an American court. So I have a privilege against incriminating myself and making myself liable to proceedings in the United States if I go there." He has a privilege, therefore, which he can call in aid in an examination here under the Fifth Amendment in the United States. It only applies to individuals and not to companies - an interesting contrast to article 85 which only applies to undertakings and not to Individuals.

So far as procedure is concerned, if privilege is claimed because of the risk of a fine by the European Commission, the procedure is governed by R.S.D., Ord. 39, r. 5. If the witness refuses to answer the question an application can be made to the court to see whether he can be required to answer; and then the court will rule upon his claim. If privilege is claimed under the Fifth Amendment, the examiner will have to act under the new R.S.C., Ord. 70, r. 6. The examiner will have to take down the evidence, seal it up and send it across to the United States: and then the United States court will rule whether the claim is good or not.

The result will be that the order will be varied so as to make the variations I have indicated about the specification of the documents. So far as claims of privilege against self-crimination are concerned, they must await the examination of the witnesses to see if privilege is claimed or not: and then be dealt with on the lines I have stated.

ROSKILL L.J. Subject to hearing counsel as to its form, I agree with the order which Lord Denning M.R. has proposed but I venture to add to his judgment for two reasons First, this appeal is of immense importance to the parties before this court, Westinghouse on the one hand and RTZ and the potential witnesses on the other; secondly, this is the first time that this court has had to consider the Evidence (Proceedings in Other Jurisdictions) Act 1975, a fact which makes this appeal of importance beyond its importance to the parties immediately concerned.

So far as the statute goes, Mr. Kidwell put in the forefront of his argument that MacKenna J. was wrong in having affirmed the order of Master Jacob because the letters rogatory were in truth designed to obtain discovery in this country against both the corporate witnesses and the individual witnesses. He put his submission thus: if, looking at the matter broadly, this was an exercise in discovery, then the whole request should be rejected. He founded much of his argument upon the line of cases which followed the Foreign Tribunals Evidence Act

[1978]		567
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

1856 which had governed matters of this kind until the Act of 1975 was passed. He invited us to approach our decision upon the construction of the Act of 1975 by reference to those earlier decisions. With all respect to the persuasive skill of that argument, I think it is a wholly erroneous approach to invite the court to consider the true construction of a statute passed in 1975 by reference to a line of judicial decisions, albeit of high authority, under a statute in different terms passed in different circumstances about 125 years ago.

The Act of 1975, as Lord Denning M.R. has already said, enacted the Hague Convention of 1968 as part of the law of this country. Whether or not it is legitimate to construe the Act of 1975 by reference to that Convention (it is only right to say that the Convention itself is not referred to in the statute) none the less, treating that Convention as what Lord Wilberforce recently called [Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen [1976] 1 W.L.R. 989, 997] part of the "factual matrix," it seems to me plain what the purpose of that Convention was, as indeed it states upon its face. It will be found in Command Paper 3991 and recites that the states signatory to the Convention desire "to facilitate the transmission and execution of letters of request and to further the accommodation of the different methods which they use for this purpose," and also that they desire "to improve mutual judicial co-operation in civil or commercial matters." We move in 1975 in a very different world from that of 1856.

When one sees that this Convention was signed on behalf of some 25 signatories, some of them common law countries and some of them countries with systems of law vastly different from those either of this country or of the United States of America or of any of its states, one realises how broad was its general intention. It is relevant, as Lord Denning M.R. pointed out both in his judgment and during argument, that article 23 of that Convention provides:

There is authority in this country under the Act of 1856, the Radio Corporation case [1956] 1 Q.B. 618, that this court will not facilitate what I can, with sufficient accuracy, call the United States pre-trial discovery procedure by allowing letters rogatory to be issued solely for the purpose of obtaining in this country pre-trial discovery in the strict sense of that phrase. It has been said that the evidence sought must be evidence directed to use at the trial itself.

Looking at the Act of 1975, I draw attention to the preamble. This, as Shaw L.J. pointed out during the argument, is no consolidating Act. It does not re-enact in any shape or form the Act of 1856 or any of the other Victorian statutes which touch upon this question. On the contrary, it is described as

"An Act to make new provision for enabling the High Court ...

[1978]		568
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

to assist in obtaining evidence required for the purposes of proceedings in other jurisdictions ..."

I need not read the rest of the preamble. It is obviously designed to give effect to the Convention.

This morning, during his reply, Mr. Kidwell said that we should not be astute to assist Westinghouse to obtain the relief which they seek in these proceedings. With respect, that submission is misconceived. We are not concerned with assisting or not assisting Westinghouse. We are concerned with and only concerned with assisting the Federal Court for the District of Richmond in Virginia. It is that court which has enlisted our assistance by letters rogatory and it is that court which, to use Lord Denning M.R.'s phrase, it is both our duty and our pleasure and our power under the Act of 1975 to assist, so far as we properly can. The limitations upon the power and the duty of this court to assist under that statute seem to me to be matters to be found not in decisions under the Act of 1856 at all, but within the language of the statute itself, bearing in mind that it is a statute designed to give effect to a convention to which many different countries with many different systems of law are parties.

Lord Denning M.R. referred in his judgment to a number of the sections of the Act of 1975, and I will not lengthen mine by repeating what he has said. It seems to me that Mr. Kidwell's argument that we should apply the construction placed upon the Act of 1856, and hold that documents to be produced under the present Act have to be ancillary to the oral evidence of witnesses, is wrong. Whatever the true construction of the Act of 1856, as to which there is abundant authority, we are now dealing with a completely different statute: when one looks at section 2 (1) and (2) of the Act of 1975, one finds that section 2 (2), which is described as being "without prejudice to the generality of subsection (1)" empowers the court to make provision for a number of matters (a) to (f) inclusive, of which (a) is "for the examination of witnesses, either orally or in writing" and (b) is "for the production of documents." Simply as a matter of construction, it would be quite wrong, with all respect to Mr. Kidwell, to hold that the production of documents should be limited to documents ancillary to the evidence or oral testimony of witnesses whose evidence is to be adduced under the Act. That point, therefore, fails.

I think his other point, what he calls his "root and branch" point, also fails, indeed fails in limine, and for this reason. It was suggested, as I said a moment ago, that this was an attempt to obtain pre-trial discovery. One should ascertain what is the nature of the letters rogatory by looking at the letters rogatory themselves. They are exhibited to an affidavit of Mr. Watson of Freshfields. It seems to me to be plain - and Lord Denning M.R. has already mentioned this - that those letters rogatory are designed to obtain evidence for use at the trial. If there ever were any doubt about it - and I do not think there was - the matter is put beyond all doubt by an order of May 20 made by Judge Merhige for the benefit of this court. So that it seems to me that the first two grounds which Mr. Kidwell put forward, the "root

[1978]		569
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

and branch "argument and the "ancillary" argument, both fail. To that extent, I find myself in complete agreement with the orders made in the courts below.

But the matter does not stop there, because in this court another matter has been fully argued which was not argued before MacKenna J. or Master Jacob. It is said that even if the orders issue in the form ordered below, none the less the corporate witnesses, by which I mean RTZ and RTZ Services, are entitled, as of right, to decline to produce the documents sought on the ground that they are privileged from production under the well known long standing rule in this country by virtue of which witnesses are entitled to protection from self-incrimination.

I do not propose in this judgment to discuss either the historical origin of this rule, or its possible historical links with the Fifth Amendment to which much reference has been made, nor whether it is right that at the present time there should be a continued right to silence in this country or not. We are not concerned with anything other than the privilege against self-incrimination to the extent that that privilege has been preserved by section 14 of the Civil Evidence Act 1968.

The matter arises in this way. We are concerned here with the privilege accorded by the combined effect of section 3 of the Act of 1975, and section 14 of the Act of 1968. It was argued that the reference to penalties in the Act of 1968 should be given a strictly limited meaning and should be construed as limited to penalties such as those imposed by the Income Tax Act 1952 and the Taxes Management Act 1970.

It is true that when the law was altered in 1968 following the report of the Law Revision Committee in 1967 it appears that those penalties - those under the Act of 1952 - and those alone were intended to be the subject of preservation, the other protection against self-incrimination having been recommended for abolition. But whatever the original intention may have been, and whatever penalties may have been in mind at that time, we have to consider the position under the Act of 1968 and the Act of 1975 having regard to the entry of this country into the European Economic Community in 1972. As Lord Denning M.R. has pointed out, under the European Communities Act 1972 it is clear that the regulations of the E.E.C. and indeed the Treaty of Rome itself, and in particular article 85, are now a part of the law of this country. We were referred to articles 14 and 15 of Regulation No. 17/62. It is plain that fines which are penalties can be inflicted under article 15 for (among other matters) breaches of article 85 of the Treaty. It is also plain from article 15, paragraph 4, that decisions to impose fines taken under paragraphs 1 and 2 of the article shall not be of a criminal law nature.

Those fines or penalties can be enforced by proceedings in this country. After the Act of 1972 was passed, the European Communities (Enforcement of Community Judgments) Order 1972 (S.I. 1972 No. 1590) was enacted by Her Majesty in Council and rules of court were thereafter made giving effect to those various pieces of legislation. It is

[1978]		570
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

sufficient to refer to the note 71/15-24/2 in The Supreme Court Practice (1976), R.S.C., Ord. 71, r. 15, which reads:

"... The most likely Community judgments enforceable under the provisions of the Community Treaties which would require to be registered and enforced in the United Kingdom are decisions of the Commission of the European Communities imposing fines or penalties, either of lump sums expressed in units of account or percentages of the offending firm's turnover, ... under E.E.C. Regulation 17/62, relating to restrictive practices and monopolies."

Notwithstanding Mr. Bingham's ingenious argument this morning, I cannot see any legitimate reason for limiting the construction of the word "penalties" in the Act of 1968 to revenue penalties formerly imposed under the Act of 1952 and presently under the Act of 1970. Like Lord Denning M.R., I have reached this conclusion with a certain regret, because one has an instinctive feeling that there is an element of artificiality about this result, but that being the statutory position in this country, that being the express right of the persons concerned under the Act of 1975 which preserves the relevant privilege, including that preserved by the Act of 1968, I see no answer to the contention that this protection exists in principle. But it is important to remember, as Lord Denning M.R. pointed out, that there may be qualifications upon the right to the protection. Whether there are relevant qualifications in particular instances is something which must be dealt with at the hearing and cannot be determined in advance.

Accordingly, for those reasons, I agree with what Lord Denning M.R. has said about privilege. So far as the Fifth Amendment is concerned, I propose to say very little. Mr. Kidwell has said that we should make it a condition of the issue of the order that a master should act in place of the United States consul or vice-consul for the purpose of taking any evidence that may be given under the letters rogatory and that such a master should be appointed by the judge in Virginia. The purpose was that a ruling on this privilege on behalf of the judge might be given instantly so that no problem of delay would arise in connection with any witness who invoked the Fifth Amendment. All I would say is that I think it would be quite wrong for this court to presume to dictate before whom these proceedings should take place. That, it seems to me, must be a matter for the court in Virginia and not for this court. If the proceedings are to be held in the near future in London, it must be a matter for the judge in Virginia to say by his order who is to sit where; possibly either he himself or a master appointed on his behalf or a consul or vice-consul as the present order provides.

The only remaining point with which I have to deal is the width of the order. Lord Denning M.R. has referred to some matters arising on Schedule B. Like him, I think that some of the descriptions in Schedule B are too wide. If I may take one or two items as an example, I refer first to item 11. That seems to me to be a legitimate use of the phrase "memoranda, correspondence or other documents relating thereto" because those documents are sufficiently specific. On

[1978]		571
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

the other hand, like Lord Denning M.R., I think number 16 is much too wide. Again, merely to take an example, I think number 7 is wide; although it only primarily refers to a single document I think the request must identify, for the protection of the person receiving it, with sufficient accuracy, the documents required either individually or generically so that that person concerned may know what it is he has to provide and does not have to search around among his files to make up his own mind whether or not he will be failing in his duty to the court if he does not produce a particular document. His task should be made easy and not difficult; I am sure that with goodwill, having regard to those who have charge of the matter on both sides, the order when issued will be sensibly operated.

For those reasons, as well as those given by Lord Denning M.R., I would in substance dismiss the appeal but with the qualifications on the existing order that Lord Denning M.R. has mentioned.

SHAW L.J. I agree with both judgments and there is nothing I wish to add.

Appeals dismissed with modifications varying order made by MacKenna J.

Declaration that fines, if any, which might be imposed under E.E.C Treaty are penalties within section 14 of the Civil Evidence Act 1968.

Each party to pay own costs in Court of Appeal. Order for costs below to stand.

Leave to both sides to appeal: examination not to be held up.

Solicitors: Linklaters & Paines; Freshfields.

A. H. B.

On June 21, 1977, MacKenna J. dismissed an application by Westinghouse Electric Corporation ("Westinghouse") for an order requiring the Rio Tinto Corporation Ltd. and RTZ Services Ltd. (both companies being referred to as "RTZ") to produce and/or produce for inspection the documents set out in the schedules to the orders of the Court of Appeal of May 26, 1977.

Westinghouse appealed on the grounds that the judge erred in law and in fact in failing to hold that the production of the documents would not expose RTZ to any proceedings for the recovery of a penalty to which they were not already exposed and/or that there was no real or appreciable danger to RTZ being exposed to any such proceedings by reason of their production of the documents; that he failed to pay due regard to section 14 (1) of the Civil Evidence Act 1968; and that he held that the issue was decided against Westinghouse by Triplex

[1978]		572
A.C.	In re Westinghouse Uranium Contract (C.A.)

Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395, which was wrongly decided.

The facts are stated by Lord Denning M.R.

T. H. Bingham Q.C. and Timothy Walker for Westinghouse.

Brian Neill Q.C., Michael Burton and Richard Wood for RTZ.

LORD DENNING M.R. To make this case clear, I must repeat one or two things we all know. On the information placed before us, there is ground for thinking that from 1972 onwards there was an international cartel in uranium. This cartel was an association by which the big producers of uranium combined to regulate the output of uranium and the price of it. Its object is said to have been to manipulate the price of uranium, to limit competition, and to force prices up to excessively high levels. The parties to this cartel included Australia, Canada, South Africa, France - and companies in those countries - and also the English company of Rio Tinto.

There is also ground for thinking that, in belonging to this cartel, France and its companies and the Rio Tinto companies ("RTZ") were infringing article 85 of the E.E.C. Treaty. That article prohibits all "concerted practices" which restrict or distort "competition within the common market." If RTZ have infringed article 85, they can be fined by the European Commission at Brussels. The fine may be very large indeed. The European Commission can impose this fine under Regulation No. 17 of 1962, article 15 (2). It can be imposed by the European Commission at Brussels without the English courts having any say in the matter at all. RTZ can appeal to the European Court at Luxembourg: see Regulation No. 17, article 17. But if that court affirms the fine, that is final. The only role of the English court is that of a rubber stamp. The fine can be enforced by process of execution issued by our courts.

There is evidence now before us that the European Commission in Brussels knew all about the cartel almost from the beginning in 1972. They made some inquiries of the governments involved. But they took no action to interfere with the cartel. Then in 1976 in Australia a society calling itself the "Friends of the Earth" got hold of the files of an Australian mining company which was concerned with the cartel. They sent the files to California. Thence they came into the possession of influential quarters in the United States; and in particular into the hands of the Westinghouse Electric Corporation ("Westinghouse"). The European Commission in turn got hold of the "Friends of the Earth" documents late in 1976. Questions were asked about it in the European Parliament. No doubt with the view of the European Commission taking action against the cartel. On September 15, 1976, the member of the Commission made this answer:

"Since 1972 the Commission has followed with interest the actions of the Uranium Club. The Commission is examining the information which has recently reached it on the subject and which is being studied also in the United States. It is continuing its analysis of the respective roles of the governments and the companies in the formation and operations of the club."

[1978]		573
A.C.	In re Westinghouse Uranium Contract (C.A.)	Lord Denning M.R.

A supplemental question was asked: "Does the Commission admit in principle the existence of a cartel in this affair?" The answer was: "We are not able, at this point, to come to a conclusion as to the existence of a cartel." This answer seems to have provoked some amusement because the official report notes down in French "sourires." I suppose this was due to the lack of action by the Commission.

The present proceedings

On the last occasion ante, p. 558H I described the litigation now pending in the United States in which the courts there had issued letters rogatory to the courts here in England. They have requested the English courts to compel RTZ to produce to an examiner their documents relating to the uranium cartel. On May 26, 1977, we gave a ruling that on the examination in England RTZ could claim the privilege given by the common law against self-incrimination. That is, that they had a right to refuse to produce the uranium documents "if to do so would tend to expose them to proceedings" for a fine or penalty by the European Commission. Before the examiner RTZ did claim this privilege. We now have to decide whether the privilege should be upheld or not. I will take the arguments in the order which the advocates took them before us.

First, the common law as to self-incrimination. If the privilege is good, it must satisfy the common law rule about it. It is to be noticed that RTZ are not parties to the litigation in the United States. They are reluctant witnesses who have been ordered to give evidence and to produce documents.

There is, I think, a distinction to be drawn between a witness and a party to a suit. It happens sometimes that a defendant is sued for a matter which not only gives rise to a civil cause but also gives rise to a criminal offence such as libel or fraudulent conversion. The plaintiff then seeks to administer interrogatories or get discovery from the defendant so as to support his charge. In such a case the defendant has on occasion taken objection on the ground that the answer or the discovery may tend to expose him to proceedings for a criminal offence: and the objection has been upheld. Such were the libel cases of Lamb v. Munster (1882) 10 Q.B.D. 110 and Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395. I must say that I doubt if those cases would be decided in the same way today. The privilege should not be allowed in a libel case where there is no real risk of the defendant being prosecuted: and his objection is only put forward as a way of escaping his civil liability.

Today we are not dealing with a party to a cause: we are dealing with a witness. At common law, when a witness is being examined in the witness box or is subpoenaed to produce documents to the court, then, quite understandably, he may have something he wishes to keep secret to himself so that his neighbours or his competitors should not get to know of it. Something which he might reasonably believe he ought not to be compelled to disclose. Not, at any rate, if it exposes him to risk of some ill befalling him. The common law does in some

[1978]		574
A.C.	In re Westinghouse Uranium Contract (C.A.)	Lord Denning M.R.

circumstances cast its protection over him. It adopts the maxim nemo tenetur seipsum prodere. No one is bound to furnish evidence against himself. It says:

"If a witness claims the protection of the court, on the ground that the answer would tend to incriminate himself and there appears reasonable ground to believe that it would do so, he is not compellable to answer": see Reg. v. Garbett (1847) 1 Den.C.C. 236, 257 by nine judges after two arguments.

Note that a witness is only given this protection if he can satisfy the court that there is reasonable ground for it. Lord James of Hereford said so in National Association of Operative Plasterers v. Smithies [1906] A.C. 434, 438. (If the court thinks that he has no reasonable ground but is making it as an excuse - for instance, so as to help or hinder one side or the other - it will overrule his objection and compel him to answer. That was pointed out by Sir George Jessel M.R. in Ex parte Reynolds (1882) 20 Ch.D. 294, 300.) It is for the judge to say whether there is reasonable ground or not. Reasonable ground may appear from the circumstances of the case or from matters put forward by the witness himself. He should not be compelled to go into detail - because that may involve his disclosing the very matter to which he takes objection. But if it appears to the judge that, by being compelled to answer, a witness may be furnishing evidence against himself - which could be used against him in criminal proceedings or in proceedings for a penalty - then his objection should be upheld.

There is the further point: once it appears that a witness is at risk, then "great latitude should be allowed to him in judging for himself the effect of any particular question": see Reg. v. Boyes (1861) 1 B. & S. 311, 330. It may only be one link in the chain, or only corroborative of existing material, but still he is not bound to answer if he believes on reasonable grounds that it could be used against him. It is not necessary for him to show that proceedings are likely to be taken against him, or would probably be taken against him. It may be improbable that they will be taken, but nevertheless, if there is some risk of their being taken - a real and appreciable risk - as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents. That is, as I read it, the judgment of the court in Reg. v. Boyes. I am sure that in Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253, 257 Goddard L.J. did not mean to say anything different because he had referred in a previous sentence to Reg. v. Boyes itself. In applying that principle in Reg. v. Boyes, where a witness was given a pardon, he was under no appreciable risk and was made to answer. Again in Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253, where the offence had become obsolete, he was made to answer. And in the Australian case of Brebner v. Perry [1961] S.A.S.R. 177, where he had already given a like statement to the police - and by giving evidence there was no increase in risk by his being made to answer - he was made to answer. But where there is a real and appreciable risk - or an increase of an existing risk - then his objection should be upheld.

[1978]		575
A.C.	In re Westinghouse Uranium Contract (C.A.)	Lord Denning M.R.

The powers of the European Commission

The powers of the European Commission are not directly relevant to this case. But they arose in the course of argument because it is said that the European Commission have large powers which they have not used: and that shows that they intend to take no action against the cartel.

On the face of it, this appeared to be the case where it is the duty of the European Commission to investigate. Article 89 of the Treaty says that "the Commission shall investigate cases of suspected infringement of these principles," that is, articles 85 and 86. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end. In making the investigation, the European Commission is entitled to call upon the Director General of Fair Trading in England, and he is bound to give his assistance: no doubt by placing his officers at the disposal of the Commission.

In making an investigation, the European Commission is armed with great powers given by Regulation No. 17 of 1962, articles 11 to 20. These will come as a surprise to those of us who have been brought up in the common law. Long before any proceedings have been instituted - and before any prima facie case is shown - the European Commission is entitled to interrogate an undertaking like RTZ and require them to give any information which the Commission thinks is necessary: see article 11. If RTZ refuse to answer the interrogatories, or if they answer them incorrectly, the Commission can impose fines and penalties on RTZ. In addition the European Commission can require an undertaking like RTZ to disclose their books and business records, to take copies of them, to ask for oral explanation on the spot, and to enter any premises of RTZ: see article 14. Here again, if RTZ refuse, the Commission can impose fines and penalties on them.

There is a provision by which RTZ are entitled to be heard at the various stages: see article 19. But, after giving a hearing, the European Commission can impose a fine or penalty. RTZ could appeal to the Court of Justice at Luxembourg, but if they affirm the fine or penalty it is final.

The decision then is enforceable in England. Article 192 of the Treaty says: "Decisions of the Council or of the Commission which impose a pecuniary obligation on persons other than states shall be enforceable." The decision is equivalent to a judgment of an English court. It can be registered in England; and on registration can be enforced by writs of execution: see the European Communities (Enforcement of Community Judgments) Order 1972, S.I. 1972 No. 1590.

There is a provision that any information obtained is only to be used for the purpose of the investigation: see article 20. But under community law (differing herein from the common law) an undertaking like RTZ has no privilege by which it can refuse to answer the interrogatories, or refuse to disclose its books and records. Community law does not recognise any privilege against self-incrimination. It would obviously stultify an investigation if RTZ could say: "We fear this would expose us to a fine for infringing article 85 of the Treaty." (Somewhat

[1978]		576
A.C.	In re Westinghouse Uranium Contract (C.A.)	Lord Denning M.R.

similar to the investigation in Parry-Jones v. Law Society [1969] 1 Ch. 1.) So RTZ would be bound to answer and give discovery when requested by the European Commission.

In addition there is some doubt whether in community law (differing again from the common law) an undertaking like RTZ could rely on legal professional privilege - so as to protect it. In In re Quinine Cartel[1969] C.M.L.R. D41, D71, it appears that the European Commission looked at the record of a legal consultation so as to show the guilty mind of an infringer.

All this shows that the European Commission have great powers of investigation which they could exercise against RTZ if they so desired. They could compel RTZ to produce all these documents if they so desired.

The facts

After all these digressions I come back to the question in the case. To what extent is there a real or appreciable risk that RTZ may be subjected to a fine or penalty by the European Commission?

It was submitted by Mr. Bingham that there was no real risk. The European Commission, he said, had known of the cartel for five years and had taken no action. It had known of the "Friends of the Earth" documents for 10 months and had made no investigation of either one. It had the great powers (which I have summarised) but it had not sought to interrogate RTZ or to require discovery of its documents. Its inaction has provoked amusement in the European Parliament. It may reasonably be inferred, said Mr. Bingham, that for some reason best known to itself the Commission has decided not to take any proceedings against RTZ. So RTZ are in no risk of being fined: and they should be compelled to give discovery of their documents.

But on the other hand, in answer, Mr. Neill relied on the affidavit of Mr. Jeremy Lever. He gives a good deal of detail, but summarises his conclusions in these matters as a result of his discussions with some of the members of the staff of the Commission:

"(a) on the material at present available to it, the Commission still has an open mind whether the arrangements relating to uranium of which it is aware constituted a 'cartel' in the sense of a contravention of article 85 of the E.E.C. Treaty; (b) the Commission has not taken any decision to ignore such arrangements but, on the contrary, is keeping the position under constant review; (c) it is impossible for anyone to say whether disclosure of further information not already in the Commission's hands might lead the Commission to 'open proceedings' in respect of such arrangements ... (d) it is equally impossible for anyone to say whether if proceedings under article 85 of the E.E.C. Treaty were successfully taken by the Commission against RTZ and/or RTZS, the Commission would impose a fine upon either of those companies."

It is to be observed that no application has been made and the Commission

[1978]		577
A.C.	In re Westinghouse Uranium Contract (C.A.)	Lord Denning M.R.

have not given "negative clearance" under article 2 of Regulation No. 17.

To this I would add, as I said at the beginning, that the European Commission are under a duty under the Treaty itself to investigate the cartel; and, if the evidence is sufficient, to take steps in respect of it. The Commission have no prerogative, so far as I know, to dispense with the law enacted by article 85.

In these circumstances, it seems to me that there is reasonable ground to believe that, if RTZ were compelled to disclose the documents requested by the United States courts, there is a risk of those documents being used against them in this way - they might be brought to the knowledge of the European Commission and be used by the Commission in support of proceedings for a fine or penalty. They might afford additional evidence of such cogency that the European Commission could no longer hold its hand: but would be bound to act under article 85 of the Treaty. Seeing that RTZ reasonably believe there is such a risk, I think they are entitled to the privilege against self-incrimination. I would therefore dismiss the appeal.

ROSKILL L.J. The only question for decision on this appeal is whether the respective claims of RTZ and RTZ Services ("RTZS") for privilege from the production of the documents sought by the appellants should be upheld. It is important to remember that RTZ are not parties to the pending litigation against the present appellants, Westinghouse, who seek the order against them. RTZ say that such production will tend to expose them to proceedings for penalties in the form of fines exigible at the instance of the European Economic Community for breach of article 85 of the E.E.C. Treaty and that, having regard to our decision on the previous occasion on May 26, 1977, to which Lord Denning M.R. has referred, such fines are penalties within section 14 of the Civil Evidence Act 1968, and therefore they are entitled to the protection for which section 3 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, from which the present proceedings arise, makes express provision.

Westinghouse say that such production will not tend to expose RTZ to any such penalties - or at least to any such penalties beyond those to which they already stand exposed in the light of the state of knowledge of the Commission at the present time. Mr. Bingham, for Westinghouse, pressed us on Friday with the argument that the documents sought were only those which Westinghouse thought were likely to exist, and that they had founded their demand upon, and only upon, those documents, copies of which they had already obtained from sources in Australia. He pointed out that there was now clear evidence before us that the existence of the so-called cartel (or "club," as the Commission's officials prefer to call it, claiming that the existence of a cartel properly so called has not yet been proved) has been known to the Commission and its staff since 1972, though copies of the documents to which I have just referred only came into the Commission's possession last year, 1976. Mr. Bingham drew our attention to the question to which Lord Denning M.R. has just referred which was asked in the European Parliament on this subject and to the overt signs of scepticism - described in the official report in French as

[1978]		578
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

"sourires" - with which the answer given was received, as if to emphasise that the truth as he claimed it to be was and had for some time been widely known both to the Commission and to the press, namely, that this agreement did infringe article 85; yet for some four years past or more nothing whatever had been done by the Commission. If that were the position today and no action had yet been taken by the Commission, either itself to investigate or to call for those documents and others under article 14 of Regulation No. 17 or to require the competent authorities of the British government to investigate the position under article 13 of Regulation No. 17, the overwhelming inference must be that the production of these further documents would not at this time lead to any action by the Commission. Mr. Bingham said that the privilege against self-incrimination could not be used to stultify the Commission's powers of investigation since the Commission were vested with powers to investigate a political mischief. The privilege, such as it was, was a privilege only in legal proceedings and not in an investigation which might or might not proceed. Mr. Neill made no admission that the privilege against self-incrimination could not be used to resist a demand by or at the instigation of the Commission for production of documents in any investigation under articles 13 or 14 of Regulation No. 17. The determination of this appeal does not involve the determination of that question, and I express no opinion whatever upon it. The determination of this appeal depends upon whether in these proceedings, which are legal proceedings, RTZ are entitled to the protection to which section 14 (1) of the Act of 1968 entitles them if production would "tend to expose" them to "proceedings ... for the recovery of a penalty."

It has long been a rule of English law, as Lord Denning M.R. has pointed out, that a person cannot (subject only to certain statutory exceptions, of which Parry-Jones v. Law Society [1969] 1 Ch. 1 affords an interesting and modern example) be required to answer questions or produce documents which may lead to his being, if I may be forgiven a colloquialism, "convicted out of his own mouth." There is a long line of authorities dealing with this topic of which the earliest cited to us was Reg. v. Boyes, 1 B. & S. 311, a decision of the Court of the Queen's Bench subsequently expressly approved by this court in Ex parte Reynolds, 20 Ch.D. 294. Those two cases - and there are others to the same effect - show clearly that a mere assertion of a claim for privilege on the ground of an alleged risk of self-incrimination is not enough to enable the privilege to be successfully claimed. Nor, of course, will the court uphold such a claim for privilege when it is made in bad faith. Nor indeed, as the authorities show, will the courts automatically uphold every such claim for privilege when, as is of course accepted here, it is made by RTZ in complete good faith.

The first question which a court must ask itself is whether the facts proved in evidence disclose the commission of an offence - in some cases a criminal offence. The first question here is whether those facts disclose that there is a liability upon RTZ for what Mr. Neill called "a penalty offence." To my mind there can be no doubt but that they do, and indeed it was not seriously in dispute that the documents which we saw on the last occasion do disclose a breach of article 85.

[1978]		579
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

What then is the degree of risk of penalty proceedings following? It seems to me that once a party to legal proceedings who is resisting production of documents can show facts which establish the existence of a penalty offence (or in other cases the commission of a criminal offence) the courts should be slow to deprive that party of his privilege against self-incrimination, which the common law now for some three centuries, and section 14 of the Civil Evidence Act 1968 today accords him. In the absence of bad faith, to say that there is no risk of proceedings may in all but the plainest cases involve a court claiming for itself a degree of prescient foresight to which it would not be wise to pretend for if its forecast were wrong and if proceedings and penalties were to follow, damage will or at least may be done by an erroneous decision of the court which it would not be easy thereafter to undo or redress.

I do not propose in this judgment to go through all the cases which have been cited to us and which, with all respect to the authors of the various judgments, are not always helpful because of the varying language used from time to time in different cases to indicate where the dividing line comes. The problem is not made any easier for us because in the several reports of Short v. Mercier (1851) 3 Mac. & G. 205 where the claim for privilege was upheld, the language used by Lord Truro L.C. is not identical in the several reports. In the report in Macnaghten and Gordon, reproduced in 42 E.R. 239, 299, the language is different from that in both 15 Jur. 93 and 20 L.J.Ch. 289. Nor is it necessary to consider whether certain passages in the judgment of du Parcq L.J. in the Triplexcase [1939] 2 K.B. 395 (which plainly influenced MacKenna J.) are entirely reconcilable with Goddard L.J.'s later judgment in Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253, during the argument in which the decision three years earlier in the Triplex case was seemingly not cited. Like Lord Denning M.R. I find it impossible to think that in the passage in Goddard L.J.'s judgment in Blunt, at p. 257, upon which Mr. Bingham relied both this morning and on Friday, where he asked whether there was any "reasonable likelihood" of the answers to the interrogatories in question exposing a person to ecclesiastical censure, Goddard L.J. was intending to substitute his phrase for the words used by Cockburn C.J., in Reg. v. Boyes, 1 B. & S. 311, 327-330, to which Goddard L.J. had referred a moment or two earlier in his judgment.

It cannot, I think, be right in these cases for the court to attempt a quantitative assessment of the probability one way or the other of the risk of proceedings ultimately being taken, and then to seek to draw the line, one way where the probabilities in the view of the court are thought to be more or less evenly balanced and the other where the balance is more disparate. It is not for the court to resolve problems of this kind by calculating odds. I think that the right question to ask is that posed by Shaw L J. on Friday afternoon. Can exposure to the risk of penalties (or in other cases to the risk of prosecution for a criminal offence) be regarded as so far beyond the bounds of reason as to be no more than a fanciful possibility? Examples of such cases are Reg. v. Boyes, 1 B. & S. 311; Ex parte Reynolds, 20 Ch.D. 294 and Blunt v. Park Lane Hotel Ltd.[1942] 2 K.B. 253. Examples of cases where the claims have been upheld

[1978]		580
A.C.	In re Westinghouse Uranium Contract (C.A.)	Roskill L.J.

are, to name but a few, Short v. Mercier, 3 Mac. & G. 205 and Triplex[1939] 2 K.B. 395.

Like Lord Denning M.R., I confess to a feeling of unease, sitting in this court in 1977, about cases where claims to privilege have been upheld because of the alleged risk of prosecution for criminal libel and wonder whether some of them would have been decided the same way today. Those cases might on some suitable occasion usefully be reconsidered by the appropriate tribunal, for times do change and the policy of the law changes with the times, just as this court in Blunt v. Park Lane Hotel Ltd.[1942] 2 K.B. 253 refused to follow the earlier decision of this court in Redfern v. Redfern [1891] P. 139 (a matrimonial dispute), and in particular a passage in the judgment of Bowen L.J. at p. 147 regarding the right to claim privilege because of the risk of ecclesiastical censure. In saying that, I have not lost sight of the figures of prosecutions for criminal libel which Mr. Neill gave us on Friday afternoon.

Asking myself the question which Shaw L.J. posed, I am afraid I am not persuaded by Mr. Bingham's argument that one should assume from the inaction to date which must be taken to have been on the basis of the Commission's present knowledge that there is no future risk of proceedings for an alleged breach of article 85. In his reply this morning Mr. Bingham stressed the position as it is today in Australia and Canada and indeed in France. Of course neither Australia nor Canada are parties to the E.E.C. Treaty, and we have been told that special legislation has been passed in each of those countries to deal with the situation in relation to the Australian and Canadian corporations concerned. France is of course a member of the community but that does not affect the position we have to consider. Bureaucracy moves slowly, perhaps international bureaucracy may move even more slowly. These problems are immensely complex, and the present documents have only been available since 1976.

Even if I am wrong in that view on the basis of the documents which the Commission presently have, I am even less persuaded, with all respect to Mr. Bingham, that I should assume that these other documents, even though designed only to fill in the gaps in the existing documents, might not supply just that extra information which might move the Commission to decide to proceed further, a step which in the absence of seeing those other documents they would not or might not have taken. The fact, if it be the fact, that there may not be immediate damage to RTZ from the Commission's present possession of documents does not mean that there may not be some future damage from the production of the other documents presently sought. I do not think it is relevant that the Commission might be able by the use of their own inquisitorial powers to obtain some or all of these other documents for themselves. Unless and until they make a move either directly or through a member state, I think RTZ are entitled to maintain their claim of privilege in these legal proceedings, legal proceedings to which they are not directly parties they are merely being sought to be brought before the court as reluctant witnesses.

For those reasons, which I think substantially are in accord with those of Lord Denning M.R., I would dismiss the appeal.

[1978]		581
A.C.	In re Westinghouse Uranium Contract (C.A.)

SHAW L.J. Mr. Bingham has contended for Westinghouse that the court must seek to reconcile two principles of law. The first is that which accords to a witness the privilege which entitles him to refuse to answer questions or to produce documents which will tend to expose him to proceedings for an offence or for the recovery of a penalty. The second is that which requires that justice should be done between the parties to a cause.

He cited in support of this proposition passages from the respective judgments of Lord Truro L.C. in Short v. Mercier, 3 Mac. & G. 205; and Cockburn C.J. in Reg. v. Boyes, 1 B. & S. 311; Jessel M.R. in Ex parte Reynolds, 20 Ch.D. 294; Goddard L.J. in Blunt v. Park Lane Hotel Ltd.[1942] 2 K.B. 253. I do not read any of those judgments as requiring a court to decide in a given case whether upholding a claim for privilege will do such a disservice to justice as to justify rejecting the claim for that reason. What does emerge from the passages cited is that before a claim for privilege is upheld the court must be satisfied that there is a real and genuine basis for the assertion by the witness that he will tend to be exposed to proceedings or penalties. The precise measure or degree of the risk to the witness is something which the court is not called upon to assess so long as there is a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance. The question is, whether there is a recognisable risk? The principle which protects a witness from obligatory self-incrimination is not to be qualified by or weighed against any opposing principle or expedient consideration so long as the risk of self-incrimination is real in the sense that what is a potential danger may reasonably be regarded as one which may become actual if the witness is required to answer the questions or to produce the documents for which privilege is claimed.

In Short v. Mercier, 3 Mac. & G. 205, there is a passage in the judgment of Lord Truro L.C. where he says:

"Now, a defendant, in order to entitle himself to protection, is not bound to show to what extent the discovery sought may affect him, for to do that he might oftentimes of necessity deprive himself of the benefit he is seeking; but it will satisfy the rule if he states circumstances, consistent on the face of them with the existence of the peril alleged, and which also render it extremely probable."

In my view the words "extremely probable" relate in that passage to the existence of the risk and not to the magnitude of the chance that proceedings may be brought. It is sufficient if it is shown that there is an appreciable chance that they may.

Accordingly I agree with the judgments which have been given by Lord Denning M.R. and Roskill L.J., and I too would dismiss the appeal.

Appeal dismissed with costs.

Leave to appeal refused.

Solicitors: Freshfields; Linklaters & Paines.

A. H. B.

[1978]		582
A.C.	In re Westinghouse Uranium Contract (C.A.)

July 27, 1977. The Appeal Committee of the House of Lords (Lord Wilberforce, Lord Edmund-Davies and Lord Fraser of Tullybelton) allowed petitions by the persons named in the orders for leave to appeal.

On July 18, 1977, the Department of Justice of the United States applied to Judge Merhige for an order to compel testimony under U.S.C. sections 6002-6003 applicable when a witness claimed privilege on the ground of self-incrimination but under which no testimony compelled might be used against the witness in a criminal case. The judge made the order.

The two original appeals to the House of Lords were by Rio Tinto Zinc Corporation Ltd. and R.T.Z. Services Ltd. (both hereinafter called "R.T.Z."). Peter Daniel, Jean Loup Dherse, Lord Shackleton of Burley, Sir Ronald Turner, Roy William Wright, Andrew Gilward Buxton and Kenneth Bayliss by leave of the Court of Appeal. The three cross-appeals of the respondents, Westinghouse Electric Corporation, concerned the interpretation of section 14 of the Civil Evidence Act 1968.

Kenneth Rokison Q.C. and Michael Burton for the appellants. The statute which is relevant to the letters rogatory is the Evidence (Proceedings in Other Jurisdictions) Act 1975. Section 2 deals with the powers of the United Kingdom court, assuming that the requirements of section I are satisfied. Section 3 deals with privilege of witnesses. This gives them a double privilege, English law privilege and also any privilege which they would enjoy under the law of the requesting court. A corporation is not recognised as having any privilege under United States law, so the individuals in this case were claiming under United States law privilege against self-incrimination but the companies, in respect of the documents, were only claiming privilege under English law. There is a procedure under 18 U.S.C. sections 6002-6003 whereby the Department of Justice can in certain circumstances require a witness to testify if his evidence is necessary in the public interest. Evidence so given will not be the subject matter of any prosecution; immunity is granted in respect of it.

The witnesses attended before Judge Merhige and claimed privilege. He upheld the claim and that was an end of the matter. The English court should not require them to go back again just because the Department of Justice subsequently took another course.

The appellants' submissions fall under three heads: (1) discovery; (2) privilege and (3) other proceedings. As to those other proceedings, the order made under section 6002 pursuant to an application by the Department of Justice to obtain evidence for the purposes of the grand jury proceedings was made, not in respect of a civil proceeding, but in respect of a criminal investigation, and the immunity which followed from that order did so only if the evidence was given pursuant to that order. But no evidence could be given pursuant to that order.

The whole tenor of the Act of 1975 is against its being used for the purpose of "fishing." It replaced the Foreign Tribunals Evidence Act 1856. It was to some extent a product of the Convention on the Taking of Evidence Abroad in Civil and Commercial Matters signed at The

[1978]		583
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Hague on March 18, 1970, and ratified by the Government on July 16, 1976.

Under the Act the court has a discretion and is not under an obligation. The application must be in respect of evidence "to be obtained for the purposes of civil proceedings," instituted or contemplated.

As to discovery: (1) The request by the Virginia court was not for an order for evidence to be obtained for the purpose of proceedings pending before that court but for discovery against persons not parties to the proceedings. It was not within the letter or the spirit of the Act and was contrary to the common law developed before and under the Act of 1956.

(2) The schedule of documents the production of which is requested in effect requires the companies to state what documents relevant to the proceedings are in their possession, custody or power and requires the production of documents other than particular documents specified in the letter of request.

(3) If the court is satisfied that, so far as the documents are concerned, the request seeks discovery and so should not be given effect to, the court should not in the exercise of its discretion order the oral examination of directors or employees of the companies since Westinghouse could then get by the back door what was denied by the front.

The Act of 1975 refers repeatedly to "evidence." The essence of discovery, when contrasted with evidence, is that it goes beyond material which is directly relevant to the matters in issue in the proceedings. Section 2 (3), embodying a reservation made in the ratification of the convention, says that no order shall require steps to be taken other than "steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings." See also section 2 (4) in relation to documents. An order to answer questions in the course of a wide-ranging "fishing" expedition could be a breach of the subsection. If an examiner tried to insist on an answer, R.S.C., Ord. 70, r. 4, would provide the procedure to be adopted. See also note 70/4/3 and Order 39, r. 5. The English court would ultimately have to decide whether the question was lawful by applying English rules. It must be satisfied that the foreign court is seeking an order for evidence and should look at the material before it. This applies both to oral evidence and documents. If the foreign court did not consider what relevant evidence the witness could give, that would demonstrate that it was a "fishing" expedition. The applicant must show that he is seeking relevant material in that the documents are directly relevant to the existence of a cartel and that what he is seeking is the questioning of witnesses in relation to the activities, existence and effects of the cartel. But Westinghouse is seeking a "fishing" licence. One can go behind the form of the request and look at the realities. Reliance is placed on Burchard v. Macfarlane, Ex parte Tindall [1891] 2 Q.B. 241, 244-245, 246-247 and on Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618, 622, 626-627, 628-629, 633, 634, 635, 636, 637, 639-640, 640-641, 643-645, 646-649; Penn-Texas Corporation v. Murat Anstalt [1964] 1 Q.B. 40, 52, 53, 59, 60, 61-62, 62-63, 72-73, 75; Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647, 660, 663-664, 667-668; Panthalu v. Ramnord

[1978]		584
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Research Laboratories Ltd. [1966] 2 Q.B. 173, 184-185, 188, 189, 190-191, 192, 193; American Express Warehousing Ltd. v. Doe [1967] 1 Lloyd's Rep. 222, 224-226, 226-227 and Seyfang v. G. D. Searle & Co.[1973] Q.B. 148, 151-152.

These cases establish (1) that English courts will not make an order on the request of a foreign court which is in substance or effect seeking discovery from a non-party and (2) that the test whether or not discovery is so sought is whether the application is for direct evidence as defined in the Radio Corporation case [1956] 1 Q.B. 618 or whether it extends to indirect evidence; so if the application is not limited to directly relevant material, the order should not be made even though in the course of the "fishing" fish may be caught; (3) that the test applies equally to documents and oral depositions; (4) that the court will be prepared to go behind the face of the letters rogatory; (5) that the court will look at the matter as a whole to form a view of the substance of the request and (6) that if the court considers that discovery is sought against a non-party no order should be made.

The mere fact that one must use the "blue pencil" on one item does not demonstrate that the whole exercise is "fishing," but a "blue pencil" exercise may be sufficient to show it.

Apart from the fact that the Act of 1975 removed the requirement that the documentary evidence must be ancillary to the oral testimony, the common law principles still remain. There is no difference between the word "evidence" used in the Act of 1975 and the word "testimony" used in the Act of 1856.

The mere assertion by the applicant that he wants to get the evidence for the trial does not establish that it is not discovery. The following factors show that this is in substance an application for discovery: (1) The parties themselves regarded this as simply part of the American pre-trial discovery process. (2) The American judge in dealing with the application treated it as being for discovery. (3) He did so too in the terms in which he expressed his decision to issue the letters rogatory. (4) He did not decide what relevant evidence, if any, the witnesses could give or which, if any, of the listed documents existed or contained or were likely to contain relevant material. (5) Neither side invited him to consider these questions. If he had considered these questions on the evidence before him he would not have concluded that all the named persons had or were likely to have relevant evidence to give. The same is true of the documents.

A subpoena duces tecum will not be given effect to if it is in substance asking for discovery. That also applies to letters rogatory. In relation to them there is a requirement that the documents must be sufficiently specified: see section 2 (2) of the Act of 1975. Throughout the schedule there occur the words "and any memoranda, correspondence or other documents relating thereto." That indicates "fishing," which the English courts should not assist by making the order sought. It is an exercise in discovery to say: "Do you have any documents in relation to such and such? If so, produce them." The schedule is seeking discovery under a disguise, picking out every document which the applicants can identify and using it as a peg to hang a wide request on.

[1978]		585
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

A "fishing" expedition is not justified by the suggestion that other memoranda, letters or notes are, no doubt, in existence because that is discovery, in effect a query to the party asked to produce the documents whether they do in fact exist. The underlying principle that discovery will not be required of a person not a party to the action is based on a wider principle that a person's documents are his own, subject to the interests of justice.

Both under the Foreign Tribunals Evidence Act 1856 and under the Act of 1975 the English court must be satisfied that what the foreign court requires is evidence; otherwise the English court has no power to make an order. Under the Act of 1975 there are two areas of limitation. If the English court considers that the application is for discovery, section 1 (b) is not satisfied and if there is not a request for evidence the power under section 2 does not arise. If there is power under section 2 that power is limited by sub-sections (3) and (4).

As to the terms of the letters rogatory: (1) Their terms are not consistent one with the other and so it has not been shown to the court that justice cannot be done without the material requested. (2) In the context the reference to evidence being used at the trial is no more than a statement that the relevant parts of the depositions will be put in at the trial, as opposed to the witness being recalled. (3) The letters rogatory were drawn up in advance by Westinghouse and their terms were not discussed before the American judge. (4) The "meat" of the letters rogatory is more significant than the recitals in revealing the true nature of the application. (5) The House can and should go behind the face of the letters rogatory. (6) The most important factor in determining the nature of the exercise is what the American judge said in the course of making the order. He regarded the application as extending to indirect material.

In this matter there are two steps. The first is whether discovery is being sought. Secondly, if it is not, and if a subpoena duces tecum is ordered the documents must be specified with sufficient particularity to inform the person receiving it what he must find. Section 2 (4) of the Act of 1975 is the parallel of the subpoena duces tecum in that respect but section 2 (3) goes much wider. No order should be made under section 2 (3) requiring discovery from a non-party, whether discovery by way of documents or. under the American procedure discovery by oral examination on depositions.

Should the "root and branch" argument that the order should be set aside altogether fail, there remains the "blue pencil" argument that the House should not confirm in form or in substance an order either "to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power" (section 2 (4) (a)) or "to produce any documents ... specified in the order as being documents appearing to the court ... to be, or to be likely to be, in his possession, custody or power" (section 2 (4) (b)). There are there three requirements: (1) The order must not require a person to state what documents relevant to the proceedings he has. (2) An order must not require a person to produce documents other than the particular documents specified. (3) It must not require a person to produce other documents than

[1978]		586
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

those appearing to the court to be, or to be likely to be in his possession. The mere possibility of the existence of the documents is not enough. The words "particular documents specified in the order" must be literally and strictly construed. The words are not "classes of documents." The word "specified" forbids one to describe types of documents. If the House confirms any order in relation to the documents it should be restricted to letters or other documents identified by reference to date, author and addressee or title. The House is not applying the common law but is construing the limitations in the Act of 1975. The documents asked for are not "particular documents specified." Merely because for the purposes of a subpoena it is enough to particularise the documents to such a degree that the person to where it is directed will know what to bring, it does not follow that the same applies under the Act of 1975 which introduced a greater degree of particularity. Minutes of identified meetings are "particular documents specified" but not agenda or "notes."

As to the rule in the case of a subpoena duces tecum, see Phipson on Evidence, 12th ed. (1976), p. 588, paras. 1464, 1465; and Newland v. Steere (1865) 13 W.R. 1014 where the principle is correctly stated. Soul v. Inland Revenue Commissioners (Practice Note) [1963] 1 W.L.R. 112 does not assist. So far as the witnesses are concerned a similar approach should be adopted under section 3 (3) of the Act of 1975 so that, unless the court is satisfied that they have or are likely to have relevant evidence to give, it is not permissible to order them to be examined on the chance that they may have something relevant to say.

If it is accepted that this is an exercise in discovery and no effect should be given to the application, so far as the documents are concerned, there remains the "back door" argument, in case the "root and branch" argument did not prevail as regarded the witnesses.

The main purpose of the application is to obtain the documents and the evidence of the witnesses is ancillary to that. The individuals are named in the letters rogatory as directors, employees, former directors or former employees. Now, though a company produces documents and answers interrogatories through its proper officers, it cannot give oral evidence. Otherwise the request would have been directed to R.T.Z. because the activities of the companies are in question. If the English court considered that no effect should be given to the request for discovery, it would be wrong for it in its discretion to order the individuals as officers or employees of the company to give evidence as to the existence or contents of documents, secondary evidence of matters in respect of which the best evidence was denied: see the Radio Corporation case [1956] 1 Q.B. 618, 649, per Lord Goddard C.J.

As regards privilege of documents the companies have a privilege under English law against production of the documents sought because it might expose them to a penalty or alternatively proceedings for the recovery of a penalty under articles 15 and 17 of the E.E.C. Council Regulation No. 17/62 for infringement of article 85 of the treaty which is now part of English law as a result of section 2 of the European Communities Act 1972.

As regards the oral examination there are two heads of privilege: (1) The individuals have a privilege against self-incrimination under the

[1978]		587
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Fifth Amendment to the United States Constitution; Judge Merhige upheld it. (There has been no decision by an English court.) (2) In so far as the examination of witnesses is sought in their capacity as directors or employees or former directors or former employees of R.T.Z. and in so far as the main object is to get a complete record of the cartel's activities, if the companies are entitled to privilege in respect of their documents, then, as a matter of discretion, the court should not order the oral examination of the individuals in relation to those matters. Alternatively, as a matter of law there is a privilege which can be invoked either by the company or the individual.

The enactment which enables a witness to take a foreign claim of privilege is section 3 (1) (b) and (2) of the Act of 1975. Here the claim for privilege was taken by the witnesses and was referred to Judge Merhige who upheld it in the terms of the Act of 1975. Accordingly the letters rogatory had run their course so far as the individuals were concerned and they should not be required to return for further questioning. The judge had no power to make them subject to recall. Anything that happened subsequently could only give rise to new letters rogatory.

As to the application by the Department of Justice for an order to compel testimony under U.S.C. sections 6002-6003 Judge Merhige had no power to make orders that an English court would recognise. It is an order compelling testimony for the purposes of a grand jury investigation. As a matter of American procedural law the judge was obliged to make the order and any testimony given pursuant to it would carry immunity. Since the immunity applies only to testimony given pursuant to the order, there is no immunity which the English courts will recognise, because there is no order which they will recognise. It does not follow from the order that the privilege claimed has been removed. The whole application for letters rogatory was tainted by this new order.

Under the Act of 1975 there is a discretion in relation to privilege (a) whether to make an order and (b) as to the terms on which it should be made: see section 2. There is also a discretion as to privilege at common law which survives the Act of 1968. Under section 14 (1) there is a right to claim privilege but that right is not exhaustive and there is a discretion to recognise privilege in other circumstances. The 16th report (Privilege in Civil Proceedings) of the Law Reform Committee 1967 (Cmnd. 3472) shows what was considered to be the state of the law before the Act: see p. 3, para. 1, p. 7, para. 11 and p. 17, para. 41.

Westinghouse are interested in the activities of the companies. The examination of the individuals is claimed because, it is said, they were involved in or had knowledge of the activities of the cartel of which the companies were members. If the officers and employees could be asked about the matters to which the documents relate, they could also be asked about the existence and contents of the documents which the company, through its proper officer, had declined to produce, the claim to privilege being then upheld. That would make the privilege useless and create an absurd situation. The company has a right to privilege and the court in its discretion may afford a privilege in respect of the oral examination of the company's officers and employees. If Westinghouse cannot get at the company's activities directly they ought not to be able to get at them

[1978]		588
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

indirectly. The judge could allow or disallow the privilege in a particular case. As there is a residual discretion which goes beyond section 14 of the Act of 1968, so there is a discretion in the court to take into account privilege beyond section 3 of the Act of 1975. Read in its context, it means that a witness should have the same privilege in an examination under the Act as he would in English proceedings.

In relation to privilege the relevant authorities are Halsbury's Laws of England, 4th ed., vol. 13 (1975), para. 92. p. 75; McFadzen v. Liverpool Corporation (1868) L.R. 3 Ex. 279, 281-282; Bray on Discovery (1885), pp. 82-85, 342-344, Gibbons v. Waterloo Bridge Co. Proprietors (1818) 5 Price 491; 1 Coop.Temp.Cott. 385; Parkhurst v. Lowten (1819) 2 Swans. 194, 214-216, which support the submission that, once it is established that the company has privilege, it should not be circumvented, just as it would not be circumvented in relation to legal professional privilege.

As to the collateral use of materials obtained, even if the matters in respect of which Westinghouse, through the application to the Virginian court, sought evidence by the letters rogatory, were relevant to the issues in that court, they were also central to the anti-trust suit in Illinois and to the grand jury investigation. Since it is likely that the material obtained would be used by Westinghouse in these proceedings, the court should make no order pursuant to the letters rogatory. If documents are obtained by one person from another, whether by discovery or under subpoena, they must not be used for a collateral purpose by the party who obtains them. There is an implied undertaking to that effect and the court may refuse to order production if the party requiring the documents cannot or will not give such an undertaking: see Bray on Discovery, pp. 238-239; Richardson v. Hastings (1844) 7 Beav. 354, 355-356; Alterskye v. Scott[1948] 1 All E.R. 469; Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613, 618-619, 620, 621; Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881, 895-896, 901, 902. In the case of one who is not a party to the proceedings the court must balance the interests of justice against the principle that a party's documents are his own. It is an a fortiori case. In this case an English court could not supervise the carrying out of any undertaking given. R.T.Z. might well be prejudiced by the material being used in the anti-trust proceedings. In any event, the principle is that material obtained by compulsion of law should not be used for any collateral purpose, not merely one to the prejudice of the person supplying the documents.

The subpoena in the grand jury proceedings overrides any confidentiality order. It is inconceivable that this material, if provided pursuant to the letters rogatory, will not get into the hands of the Department of Justice for the purposes of the grand jury investigation involving an investigation into the activities of R.T.Z. inter alios.

As to the intervention of the Department of Justice, to compel production under the letters rogatory would be to compel something which R.T.Z. would not have to do in like circumstances in English proceedings. It would be in breach of section 2 (3) of the Act of 1975. The purpose of grand jury proceedings is to consider whether criminal proceedings should be instituted and no application has been made under section 5 of the Act, dealing with criminal proceedings. If material is sought for that

[1978]		589
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purpose, it is not required solely for civil proceedings The material required must be for the purposes and only for the purposes of civil proceedings in the requesting court. No request could be made to the English courts for the purposes of the grand jury investigation.

Judge Merhige had no jurisdiction which the English courts would recognise to make the order under U.S.C. sections 6002-6003 and it should be ignored for the purposes of the letters rogatory. He had already ruled on the question of privilege. The examination is subject to the supervision of the English court, which is in overall charge of the examination and should not compel the witnesses to go back to answer questions.

The English courts should construe and apply the Act of 1975 in a spirit of comity but that does not require them to help the Department of Justice in relation to the activities of English companies outside the United States with a view to their possible prosecution in the United States or to confirm the order made under U.S.C. sections 6002-6003.

Samuel Silkin Q.C., A.-G., Harry Woolf and Nicholas D. Bratza for the Crown. Leave is sought to intervene and place before the House matters of public interest and importance involving the policy of Her Majesty's Government. Authorities establish the Attorney-General's right and, in some circumstances, duty to intervene in private litigation for this purpose. The relevant matter of public policy is one which is material to the exercise of the court's discretion in deciding whether or not to make an order under section 2 of the Act of 1975. Her Majesty's Government considers, as do the Governments of Canada, Australia and France, that the circumstances in which the United States is seeking evidence abroad through the Virginia proceedings give rise to a serious excess of sovereignty. The Attorney-General does not intervene in litigation concerning private rights unless there is an important public interest. The courts are most willing to accept the intervention where there would otherwise be a danger that the public interest represented by the courts and that represented by the executive would part company: see Adams v. Adams (Attorney-General intervening) [1971] P. 188, 197-198; Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388, 400, 405-406, 407, 412; The Fagernes [1927] P. 311, 323-324, 324-325, 329-330.

Considerations of public policy relevant to the functions of the English courts under the Act of 1975 and in particular the exercise of the discretion conferred by section 2 arise.

In the exercise of its discretion the court and now the House are not confined to the facts and matters existing when the application to give effect to the letters rogatory was first made. Subsequent events made it imperative for Her Majesty's Government to intervene.

The grand jury proceedings do not fall within the ambit of the Act of 1975, although they could lead ultimately to proceedings falling within the terms of section 5. Anti-trust proceedings are being simultaneously carried on in the Illinois court. The claim is for treble damages. Although the proceedings are in form civil, there is a strong penal element in them. Jones v. Jones (1889) 22 Q.B.D. 425, 427 was a case of somewhat analogous proceedings. The proceedings in the IIlinois court are in personam and the principles which govern the matter are summarised in Dicey & Morris, The Conflict of Laws, 9th ed. (1973), rule 180, pp. 993-994. The

[1978]		590
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Fifth Case is proceedings under the Foreign Judgments (Reciprocal Enforcement) Act 1933. The draft convention between the United Kingdom and the United States providing for the "Reciprocal Recognition and Enforcement of Judgments in Civil Matters" 1977 (Cmnd. 6771) excludes from enforcement judgments "to the extent that they are for punitive or multiple damages" (article 2 (2) (b)), the very type of proceedings initiated in Illinois. The Illinois court would not be recognised as having jurisdiction over the appellants. Huntington v. Attrill [1893] A.C. 150, 157-158, 159, 161 was dealing with quite a different question. Even though the sanction of enforcement consists of a private remedy for multiple damages, the matter is still penal. The Illinois proceedings were commenced on the very day of the issue of the letters rogatory, indicating a close connection between the two. Clearly, the evidence was desired for the grand jury proceedings. The order under U.S.C. sections 6002-6003, even apart from the question of excess of jurisdiction, could not be regarded as made pursuant to the Act of 1975 and it could not be right to require the witnesses to comply with it. The United States government were not only seeking to use the machinery of the Act of 1975 to get material for the grand jury investigation but were also seeking thereby to get evidence which the witnesses had been held privileged from disclosing in the Virginia proceedings.

The following submissions are made: (1) Section 2 of the Act of 1975 leaves to the court a discretion whether not to make an order. (2) That discretion enables, and where relevant requires, the court to take into account whether the giving effect to the letters of request would amount to an invasion of, or would prejudice, United Kingdom sovereignty. (3) In deciding whether the making of an order would amount to an invasion of, or would prejudice, United Kingdom sovereignty, the court should have regard to the questions (a) whether the United Kingdom considers that its sovereignty would be prejudiced by the making of an order; and (b) whether, in the light of all material circumstances, the court itself considers that the making of an order would amount to such invasion or prejudice. (4) In relation to the question contained in (3) (a), the court will take judicial notice of the information given to it by the Attorney-General on behalf of Her Majesty's Government. (5) As Attorney-General, I inform the House, on behalf of Her Majesty's Government, that the United Kingdom considers that its sovereignty would be prejudiced by the making of an order in the instant case. (6) In its consideration of the matters material to the question contained in (3) (b), where the court itself considers the matters, the court will have regard (a) to the principles affecting jurisdiction recognised by English law and (b), subject thereto, to the principles accepted as a settled policy by Her Majesty's Government. (7) On each of the questions set out in (3) the court should, in the instant case, conclude that the making of an order would amount to an invasion of, or prejudice, United Kingdom sovereignty. (8) If, contrary to the preceding submission, the court is not satisfied on the material before it that the making of an order would amount to such invasion or prejudice, it should, in the exercise of its discretion, give very great weight and, so far as possible, effect to the considered view of Her Majesty's Government. (9) In balancing the public

[1978]		591
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

interest for the purpose of the exercise of its discretion, the court should hold that the conclusions to be drawn in accordance with the foregoing statements outweigh any countervailing factors which may be apparent in the instant case. (10) The House should, in the exercise of that discretion, hold that effect should not be given to the order and should allow the appellants' appeal.

As to submission (1) reliance is placed on the plain meaning of sections 1 and 2 of the Act of 1975.

As to submission (2), what it means is that, when the court comes to decide whether it should make an order, it should ask itself whether the reality of the matter is that the foreign state is seeking, through this court, to invade or prejudice the sovereignty of the United Kingdom.

The purpose of the Act of 1975 was not simply the ratification of the convention. It applies on its face to requests from the courts of countries which have not signed or ratified the convention. It would be strange if Parliament had not intended the court's discretion to extend to the consideration of international factors brought to their notice by Her Majesty's Government. So far as the discretion is concerned the convention should be read in the light of the paramouncy of the United Kingdom: see articles 9 and 10 of the convention. Parliament cannot have intended to abandon the right to refuse to execute letters of request on the grounds of excess of sovereignty or prejudice to sovereignty. Although Her Majesty's Government did not take action under article 5 of the convention, that does not deprive the court of its discretion to decide whether it is proper for an order to be made. It is in accord with modern practice that the courts should assess competing claims of public interest.

As to submissions (3) and (4), in the context of the convention and this Act Her Majesty's Government speaks for the United Kingdom and the House will take judicial notice of the information the Attorney-General gives it.

As to submission (5) that information, given on behalf of Her Majesty's Government, is that the United Kingdom considers that the sovereignty would be prejudiced by the making of the order. The United Kingdom cannot speak for itself. The information goes further, in that it is submitted that it is a proper view for the United Kingdom to take. Her Majesty's Government's view is not the only matter to be considered, but, given a conflict, the court should give it the greatest possible weight.

As to submissions (6) and (7), it is necessary to look at the relevant matters from the point of view of English law. The two organs of the Crown should speak, as far as possible, with one voice on matters affecting sovereignty and international relations. On this the following additional submissions are presented:

1. U.S. Anti-Trust Laws. (1) The anti-trust laws of the United States of America ("U.S.") should not provide jurisdiction for U.S. courts to investigate non-U.S. companies and non-U.S. individuals in respect of their actions outside the U.S., although the U.S. claims to have such jurisdiction. (2) For the purposes of United Kingdom sovereignty the U.K. does not recognise any such investigation as having any validity or as being proper. (3) The matters set out above are rendered a fortiori by

[1978]		592
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

virtue of the penal character of the anti-trust laws. (4) Any use of the U.S. anti-trust laws or procedures for the above purposes, except with the authority of the U.K., is an invasion of and prejudicial to U.K. sovereignty. (5) In the instant case no such authority exists.

2. The Grand Jury. (1) The purpose of the grand jury is to investigate anti-trust activities related to uranium. (2) In the absence of evidence establishing that the R.T.Z. companies registered in the U.K. ("R.T.Z.-U.K.") carried on anti-trust activities in the U.S., the grand jury has, so far as English law is concerned, no jurisdiction to investigate them. (3) For the purposes of U.K. sovereignty the U.K. does not recognise any such investigation as having any validity or as being proper. (4) The matters set out above are rendered a fortiori by virtue of the grand jury's power to initiate criminal proceedings based upon its investigation. (5) The grand jury proceedings are proceedings of an inquisitorial character and are not such proceedings, either civil or criminal, as are within the contemplation of the Act of 1975.

3. The U.S. Department of Justice. (1) The proper inference to be drawn from all the evidence is that the U.S. Department of Justice is seeking to obtain for the purposes of the grand jury investigation evidence which is only obtainable through the Virginia proceedings. (2) Having regard to the claim to privilege upheld by Judge Merhige, that evidence cannot be obtained without the intervention in the Virginia proceedings of the Department of Justice. (3) The proper inference from that evidence is that the intervention of the Department of Justice in the Virginia proceedings is not for the purpose of enabling justice to be done between the parties to the Virginia proceedings, but for the purpose of the use of such evidence in the grand jury investigation; or alternatively that such is the predominant purpose. (4) The Department of Justice is seeking to enable evidence to be obtained through the Act of 1975 machinery for purposes other than those provided for by Parliament in that Act. (5) The Department of Justice is seeking to enable evidence to be obtained through the Act of 1975 machinery for purposes other than those provided for in the Hague Convention. (6) The Department of Justice is seeking to enable evidence to be obtained through the Act of 1975 machinery for purposes not recognised as proper by the U.K. and in the knowledge that the U.K. considers such purposes not to be proper. (7) The Department of Justice is seeking to enable evidence to be obtained through the Act of 1975 machinery for purposes for which and in circumstances in which there is no jurisdiction for the Department of Justice to obtain it, so far as English law is concerned. (8) For the said purpose the Department of Justice caused Judge Merhige to make a purported order which was ineffectual and an invasion of U.K. sovereignty and was penal in character in that in the U.S. disobedience to this order would be visited by penalties. (9) By its use in these circumstances of U.S.C. 6002-6003, admitted to be unique or virtually unique for such a purpose, the Department of Justice placed the U.K. in a position of considerable embarrassment in respect of the proper protection of its nationals and companies, as will be explained in greater detail later. (10) But for the said action of the Department of Justice the present proceedings would

[1978]		593
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

have become academic since the order made under the Act of 1975 would, even if still alive in law, have been exhausted in fact.

4. The Illinois proceedings. (1) There is no jurisdiction in the Illinois court to investigate the actions of or to pronounce judgment upon R.T.Z.-U.K. because (a) R.T.Z.-U.K. have not brought themselves within the jurisdiction of the Illinois court; (b) The proceedings have been brought for the purpose of enforcing U.S. anti-trust laws by penal provisions against R.T.Z.-U.K. which are not subject or amenable to such laws and provisions according to English law. (2) The machinery under the Act of 1975 could not lawfully be used to obtain evidence for the purposes of the Illinois proceedings, both for the reasons already explained and because in Her Majesty's Government's submission Illinois proceedings are not civil proceedings for the purposes of section 1 or criminal proceedings for the purposes of section 5 of the Act of 1975. (3) Notwithstanding the foregoing, evidence obtained in the present proceedings would be available for the purposes of the Illinois proceedings. (4) The proper inference to draw from the evidence as a whole is that the respondents are using the machinery of the Act of 1975 in the Virginia proceedings for the purpose, or predominantly for the purpose, of obtaining evidence in the Illinois proceedings.

When regard is had to the matters set out under paragraphs 1-4 as a whole to allow the order in the present proceedings to take effect would involve that evidence so obtained: (a) would be obtained for purposes other than those intended by Parliament; (b) would be obtained for purposes other than those for which there is jurisdiction to obtain it; (c) would be obtained for purposes and by methods which would amount to an invasion of or prejudice to U.K. sovereignty; (d) would be obtained for purposes and by methods which Her Majesty's Government considers to be improper and has represented to the U.S. to be improper and unjustifiable.

As to submission (8), on matters of sovereignty and international relations the Crown should not speak with two voices: The Fagernes[1927] P. 311, 313, 315-317, 319, 323, 324-325, 329-330. Even if the House is not wholly satisfied on submissions (6) and (7), it should, in exercising its discretion at the very least give the greatest possible weight to the considered view of Her Majesty's Government.

As to submission (9), what is in issue is a statute intended to give effect to a convention. The two states immediately concerned have long been at issue as to the use of the convention, to assist extra-territorial jurisdiction in anti-trust matters in a manner prejudicial to the sovereignty of another state. The United Kingdom has taken a clear stand and the United States are seeking to circumvent it. In the circumstances no consideration of comity should carry any substantial weight. Other states have taken steps to prevent what they too regard as an invasion of their sovereignty. If there is to be a choice of comities Her Majesty's Government must choose that which would be prejudiced if we unlocked the door which other states have bolted. Canada, Australia and France associate themselves with the Attorney-General's intervention. The following additional submissions are made: (a) Matters relating to sovereignty and the limits of jurisdiction of the U.K. and of foreign

[1978]		594
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

countries are matters affecting the prerogative and are primarily for the executive to determine. (b) It is undesirable that the U.K. courts and Her Majesty's Government should take differing views on a question of this kind. Consequently unless Her Majesty's Government's conclusions are manifestly unreasonable or manifestly contrary to international law the courts should adopt the view taken by Her Majesty's Government. (c) Her Majesty's Government's conclusions are in fact reasonable for the reasons outlined in the principal submission and this is further confirmed by the fact that other governments agree and have adopted the same line as Her Majesty's Government.

No authority supports the United States claim to exercise penal jurisdiction over the actions outside the United States of non-United States nationals or companies of another country's nationality. The Lotus(1927) Permanent Court of International Justice Series A, No. 10, p. 27 is not an analogous case. The European Court has never applied the effects doctrine to justify a situation of substantive legislation against a party situated outside the European Community: see Imperial Chemical Industries Ltd. v. E.C. Commission [1972] C.M.L.R. 557; Bèguelin Import Co. v. G. L. Import Export S.A. [1972] C.M.L.R. 81; Brownlie, Principles of International Law, 2nd ed. (1973), pp. 305-306; American Banana Co. v. United Fruit Co. (1909) 213 U.S. 347, 356 and British Nylon Spinners Ltd. v. Imperial Chemical Industries Ltd. [1953] Ch. 19, 24-25.

The application of the effects doctrine to found jurisdiction in penal matters is regarded by Her Majesty's Government as being particularly objectionable in the field of anti-trust legislation. (1) The formation of a cartel and other activities against which anti-trust legislation is directed are not universally recognised as unlawful. Offences in the anti-trust category are wholly different from such offences as piracy which are universally regarded as unlawful. (2) The assertion of extraterritorial jurisdiction in anti-trust matters represents an extension of the economic policy of one state which is likely to conflict with that of other states. (3) The effects doctrine is particularly uncertain in operation when applied in the field of anti-trust legislation. As the United States courts have recognised, almost any limitation of competition effected between economic units acting outside the United States may have repercussions, direct or indirect, on the economic interests of the United States; so the potential application by United States legislation of the United States courts of the effects doctrine introduces some insecurity into the relations of corporate bodies carrying on business outside United States jurisdiction; this is highly undesirable. (4) The penal sanctions attaching to violations of United States anti-trust legislation include severe criminal penalties and penal damages. In this respect no valid distinction can be drawn between proceedings brought by the State and those brought by private individuals to enforce a monetary penalty.

The objection of Her Majesty's Government to the assumption of United States extraterritorial jurisdiction in the field of anti-trust legislation is exemplified by section 2 of the Shipping Contracts and Commercial Documents Act 1964. Similar protective legislation exists in the Netherlands, Switzerland, Denmark, Australia and Canada. Through the Act a modus vivendi with the United States was achieved whereby

[1978]		595
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

comity was preserved through their recognition of the primacy of territorial jurisdiction under that Act. It is important to establish a similar principle of comity and a modus vivendi operating through the discretion in the Act of 1975. This case presents such an opportunity. Here there are difficulties in the use of section 2 (1) (b) of the Act of 1964 but if at any stage it turned out to be available Her Majesty's Government would not hesitate to use it.

Here the considerations of comity are not of sufficient weight to justify the conclusion that the order should be upheld.

As to submission (10), the question of the discretion under section 2 of the Act of 1975 only arises if the respondents surmount the hurdle of section 1 of the Act. If the House is satisfied that the real and predominant purpose is to use the evidence in the Illinois or grand jury proceedings, the requirements of section I are not met. If the discretion under section 2 is invoked, again the House should consider the real and predominant purpose of the application. It is clear that the real and predominant purpose is to use the evidence in the grand jury and Illinois proceedings.

On all the material before the House the order should be set aside.

John Vinelott Q.C. and Timothy Walker for the respondents. There are three issues before the House: (a) Is the possible exposure to a fine under the E.E.C. regulations exposure to proceedings for the recovery of a penalty within section 14 of the Civil Evidence Act 1968? On this the respondents lost and have leave to appeal. (b) If the respondents are wrong on the first question, would the production of the documents specified tend to expose the R.T.Z. companies to proceedings for a fine? The respondents lost and were refused leave to appeal. (c) Did the intervention of the United States Attorney-General have the result that the application for letters rogatory ceased to be an application for evidence to be obtained for the purposes of civil proceedings? This relates to oral evidence.

The respondents seek leave to appeal on the second question for five reasons: (1) With the help of R.T.Z. cases have been prepared and are ready to be lodged, so there will be no administrative delays.

(2) The construction of the word "penalty" and the "tendency" point are closely related. In the field of the E.E.C. the penalty is imposed by administrative action by a body with unrestricted powers to make its own inquiries. If that is a penalty for the purposes of section 14 of the Act of 1968, how could the production of evidence which the E.E.C. has power to obtain tend to expose anyone to a penalty? It could only be because the public production might result in political pressure. That would be an extension of the words "tend to expose" in section 14.

(3) The penalty point was argued when the application of section 14 was hypothetical, no privilege having then been claimed. When privilege Was claimed the "tendency to expose" point was argued later. The argument was split in two. If it had not been, leave to appeal on both points would have been given.

(4) The range of additional evidence is very small and would add little to the length of the hearing.

(5) The claim is very great and there is a very wide range of issues.

[1978]		596
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Rokison Q.C. Five reasons were advanced for leave being given to pursue a fifth appeal: (1) The first was that cases had been prepared and exchanged in advance. Weight should not be given to that. The appellants only co-operated in that exercise to save time.

(2) The next was the "penalty" point, which is closely connected with the "tendency" point in that they both arise out of this dispute in relation to the letters rogatory and both arise in relation to the construction of section 14 of the Act of 1968. Under that there are three separate points: (a) Is the fine under the E.E.C. regulations a penalty? (b) Are the procedures for imposing or enforcing that fine a penalty? (c) Would the production of the documents requested tend to expose R.T.Z. to such proceedings? This last is the point of the fifth appeal. It was not raised in the Court of Appeal and depends on wholly separate evidence and argument. In the Court of Appeal Westinghouse were not handicapped by arguing the first two points and not the third.

(3) It was said that it was only by accident that Westinghouse did not have leave from the Court of Appeal to argue this point before the House of Lords. But that court, when it refused leave to appeal on the "tendency" point, was well aware that it had already given leave for the other points to be raised in the House.

(4) It was said that the range of additional evidence and the additional cost would be small and that it would add little time to the argument. But it would extend the hearing.

(5) Reliance was placed on the magnitude of the claim being made. But that in itself is not a ground for giving leave.

No real issue of principle arises on the fifth appeal. Westinghouse have not shown that they have a good arguable case on it.

On the assumption that the fine under the E.E.C. regulations is a penalty and that the procedure amounts to proceedings for the recovery of a penalty, the question, which is essentially one of fact, is: Would the production of the documents tend to expose the companies to that penalty? But if a party is seeking to obtain from the House of Lords leave to appeal when the Court of Appeal has refused leave the burden is on him to show that he has a good arguable case on a real point of principle. There is no point of substance to be raised here.

Vinelott Q.C. An important issue of principle is raised. The question is what test is to be applied. There is an unbroken line of authority from the early 19th century till 1939 to the effect that one who relies on privilege must show that there is a reasonable probability, a real risk, that the evidence, if disclosed, would lead to the imposition of a penalty: Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395. There is no real difference between the parties as to the effect of the evidence. It is the test which would have to be considered. The real issue is whether Triplex was wrongly decided.

[LORD WILBERFORCE: Their Lordships think it right to give leave to appeal.]

There are two questions: (1) Is a fine imposed by the E.E.C. a penalty? (2) If so, would the imposition of a fine be the result of proceedings for the recovery of a penalty within section 14 (1) of the Act of 1968? Section 16 is also relevant. The section must be construed

[1978]		597
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

in the context of the law as it was in 1968, when there was a very broad and ill-defined category of cases where privilege could be claimed extending to all cases where to produce a document or answer a question might tend to expose a witness to any penalty or forfeiture. See Mitford, Chancery Pleadings, 5th ed. (1847), pp. 229-235. A large area covered by the privilege was that of penalties recoverable in a civil action by common informers but they were abolished by the Common Informers Act 1951. There remained a vague field of penalties recoverable on the one side by the Crown and on the other by someone who had an interest in that he might have suffered by the offence. Sometimes a person injured is given a right, not simply to damages, but to a sum which bears no relation to actual damage, and that is a penalty: Jones v. Jones, 22 Q.B.D. 425. The only penalties remaining recoverable by the Crown in civil proceedings at the time of the Act of 1968 were those recoverable under section 499 (1) and (2) of the Income Tax Act 1952. The penalty under section 59 of that Act is imposed summarily, without proceedings, for a failure to appear and give evidence. It is hard to see how a question of privilege could arise in relation to it.

The rule was stated in very wide terms in the 19th century and applied to a penalty which might result from the disclosure of evidence, even though it did not result from any proceedings, e.g., deprivation of the Sacraments. Section 14, when it refers to "proceedings," in effect restricts the privilege to the case of penalties imposed as a result of proceedings. The draftsman may have had in mind the Act of 1952. The privilege should be construed in the limited sense.

The only question is whether the E.E.C. legislation relating to fines falls within or without the principle correctly defined. The relevant provisions are articles 85 and 86 of the E.E.C. Treaty. These are supplemented by E.E.C. Council Regulation No. 17, articles 1, 2, 11, 14, 15, 17. To imply in these provisions a rule against self-incrimination would stultify the power which is only to be used in cases where there is a suspected abuse of the treaty.

When a fine has been imposed by decision, the first stage, the person fined can appeal to the Court of Justice, an appeal against a penalty, liability for which has already arisen, the second stage. The third stage is that if, after an unsuccessful appeal, the fine is not paid, it can be recovered in this country by registration and an action founded on the registered entry: see the European Communities (Enforcement of Community Judgments) Order 1972 (S.I. 1972 No. 1590), paragraphs 1-4. A distinction must be drawn between proceedings which give rise to a liability for a penalty and ancillary proceedings under the orders which are necessary for the enforcement of a liability already created. The case of penalties under the revenue statute is different because the proceedings are necessary to establish the facts on proof of which the liability for a penalty becomes an immediate liability.

The E.E.C. can obtain the information by administrative action and in the circumstances it is unreal to apply the privilege on the ground of self-incrimination to the disclosure now sought. The E.E.C. have the Friends of the Earth documents and have known of the existence of the cartel since 1972.

[1978]		598
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Should the construction submitted be rejected the effects in English law would be far reaching. In civil litigation there would be many cases where, before our entry into the Community, discovery would have been plainly relevant and necessary to justice, but after it the request would be met with the claim that the defendant might have been guilty of an infringement of article 85, incurring liability to a penalty.

On the "tendency" point two conflicting requirements of public policy must be reconciled: (a) that a witness should not be required to answer questions which might tend to expose him to criminal proceedings or to a penalty; (b) that parties to litigation should be free to obtain and adduce all relevant documentary or other evidence so that justice may be done between the parties. A witness who relied on the rule against self-incrimination had to show (1) that the facts which the document or answer would reveal would assist in proving something which would be a crime or which would expose him to a penalty and (2) that the production of the document or the giving of the answer would give rise to a reasonable probability that proceedings would result. In 1939 it was laid down that the witness can rely on the rule against self-incrimination if he can show that the facts which the document or answer would tend to establish would be an offence and that the risk of proceedings is not merely fanciful: the Triplex case [1939] 2 K.B. 395, 402-408. See also Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253, 257. The burden is on the person who relies on the self-incrimination rule, whatever the test may be. The rule in Reg. v. Boyes (1861) 1 B. & S. 311, was that a person relying on the rule must show a real risk.

Hitherto it has been easy for the court to weigh the necessary matters asking: (1) Is the suggested offence really an offence? and (2) Is what would emerge relevant to proving it? If the answers are affirmative the court will allow great latitude in claiming the privilege. But here it is hard to evaluate the risk that the Commission will be stirred out of inaction by the effect of public opinion. Although it is the initiating body, it does not act without a direction from the Council of Ministers. The Commission having known of the cartel since 1972, how does the production of the documents in question increase the risk that action will be taken under article 85? The only risk would be the activation of the ComMission's powers. The question is how far the production of the documents involves a real risk that the Commission will be tempted to do what it can already do.

Two earlier cases on the rule were Short v. Mercier (1851) 3 Mac. & G. 205, 214, 217-218, and Reg. v. Boyes, 1 B. & S. 311, 312-313, 329-331. The test is that the judge must insist on a witness answering a unless he is satisfied that the answer will tend to put him in peril, not an unsubstantial danger, a bare, remote possibility by which no reasonable man would be affected, but one which, looking at the ordinary course of law and the nature of the offence, was not an imaginary risk. Other 19th century cases like Reynolds v. Godlee (1858) 4 K. & J. 88 state the rule in the same terms. It was not till Triplex [1939] 2 K.B. 395 that the court declined to enter into the possibilities, save to say that they must not be so negligible that no serious man would entertain them. That shifted the burden away from free disclosure.

[1978]		599
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Article 85 (3) of the E.E.C. Treaty is inapplicable and the members of the cartel could not bring themselves within it. They cannot even be safe as a matter of legal theory. The question is whether in the context of this case, this is a foreseeable or real risk which could influence their conduct. The only explanation of the inactivity of the Commission is that this is a politically sensitive matter and if the extent and nature of the cartel becomes a matter of international debate, there may be political pressure on the Commission to do what article 85 requires. Article 89 provides that the Commission shall ensure the application of the principles of articles 85 and 86. The production of the documents, resulting in their becoming public property, would not lead to the risk of the Commission doing anything it would not otherwise have done. That the publicity might give rise to political pressure is the sort of risk the courts cannot evaluate. It is a wholly novel situation that a prosecution or the imposition of a penalty feared should be by someone wholly free as to when and how he makes the investigation, what evidence he requires and what fine he imposes. Article 175 of the treaty deals with the persons who can bring proceedings against the Commission for breach of duty.

The purpose of the application for the letters rogatory was to obtain evidence for the Virginia proceedings. The complaint by Westinghouse is that the cartel had effect in the United States and deliberately aimed at injuring Westinghouse there. The system of tendering meant that no real competition existed and it was designed to mislead. The cartel set out to eliminate powerful middlemen like Westinghouse. The domestic market in the United States was affected.

On the discovery point, the main question under section 1 of the Act of 1975 is the meaning of the words "to be obtained for the purpose of civil proceedings." In section 2 (1) the words "to be appropriate" are related to subsection (2) which says in effect what steps are appropriate. When there is a request for evidence the court has power to give effect to it by making an order which is appropriate, having regard to the nature of the request. What must appear to the court to be appropriate is the means to give effect to the request. In the context the court referred to in subsection (3) would be an English court. It is not directed to discovery, which is dealt with in subsection (4). Under subsection (4) there can be no order for discovery or production save one which would satisfy a subpoena duces tecum. The sort of pre-trial discovery which is permissible in the United States is wholly outside the contemplation of the Act. Lines of inquiry by interrogatories are not evidence for the purposes of these proceedings; it is preliminary material for the purpose of getting evidence for the proceedings. The wide pre-trial discovery of the United States cannot be the subject of an order under this Act. The limits are production of documents in a form which would answer a subpoena duces tecum or interrogatories which do not answer some preliminary "fishing" purpose.

The evidence sought by Westinghouse falls within the Act of 1975. Judge Merhige deliberately framed his order in a normal form so as to comply with the requirements of English law. The documentary evidence is directly relevant to the defence in the Virginian proceedings and

[1978]		600
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

Westinghouse intended to produce it. The oral evidence is equally relevant. The evidence passes the test in section 1 of the Act. The documents are sufficiently specified to form the subject matter for a subpoena duces tecum. They were so before the "blue pencil" used in the Court of Appeal, but, alternatively, they certainly are now. The Court of Appeal can make an order giving effect to the letters rogatory in part. If the court rejected the whole of the letters rogatory, they could be reissued in part. The court cannot widen the letters rogatory and, strictly speaking, it should not use a "blue pencil," but it can give effect to it in part.

For the purposes of a subpoena duces tecum a document must be specified with reasonable distinctiveness, giving the witness a description which will enable him to find the document sought with reasonable ease. If the person served with the subpoena has already identified and got together the documents requested (as is the case here) he cannot be heard to say that the description was too vague to enable him to do so. See Lee v. Angas (1866) L.R. 2 Eq. 59, 63-64. R.T.Z. cannot be asked to do more than search their records and files, see what they have which answers to the description and bring all those documents to the court. That they have already done. In the context of a subpoena duces tecum they can be compelled to produce precisely those documents. Having looked at section 1 of the Act and at section 2 (3) one must show that the letters rogatory sufficiently specify the documents: section 2 (4) (b).

Judge Merhige's ruling on privilege on June 14, 1977, did not exhaust the letters rogatory, as the appellants contend. They could not be exhausted until the statutory machinery represented by R.S.C., Ord. 70, r. 6 had been put into operation.

The "back door" argument for the appellants is that if a company claims privilege and is entitled to do so its servants cannot be examined on matters which might disclose what the privileged documents would have disclosed. But there is no authority for the proposition that a company's privilege can spill over to its servants. There is no authority either way: see Gibbons v. Waterloo Bridge Co. Proprietors, 5 Price 491, 493; McFadzen v. Liverpool Corporation (1868) L.R. 3 Ex. 279, 280, 281; Parkhurst v. Lowten, 2 Swans. 194, 215-217. The privilege against self-incrimination never applies to an agent, even one as confidential as a legal adviser.

The origin of the present letters rogatory is American Express Warehousing Ltd. v. Doe [1967] 1 Lloyd's Rep. 222, 224-247. It is plain from the background documents and the nature of the documents requested that they are directly relevant to the issues and the intention is to seek to adduce them in evidence. They are related to the existence and terms of the cartel, which are relevant to the matters in issue. Justice cannot be done without the testimony intended to be given at the trial; it is implicit that the documents will be produced at the trial. Admittedly it is not stated in the affidavit that the documents, when produced, will be admissible, but to require that it should be so stated would stultify any letters rogatory.

The appellants submitted that since the documents, if disclosed, would be used in the Illinois proceedings, the House of Lords has a discretion

[1978]		601
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

whether or not to order their production. The Illinois proceedings are civil, not criminal. Though proceedings for double or treble damages are proceedings for a penalty for the purposes of the rule against self-incrimination, it does not follow that proceedings for a penalty are no civil proceedings for the purposes of other rules, in particular the rule that English courts will not enforce penal laws of another state: see Huntington v. Attrill [1893] A.C. 150, 156, 157-158, 159. An action for treble damages given to a person who has suffered damage is remedial and not criminal.

Any documents and information obtained by a party to proceedings in the course of proceedings are privileged in the sense that that person is not bound to disclose them in other proceedings. They are privileged from disclosure in other proceedings and cannot be used for a collateral purpose. But once documents or depositions from interrogatories are actually read at the trial of an action, they enter the public domain and questions of privilege and duty disappear. See Goldstone v. Williams, Deacon & Co. [1899] 1 Ch. 47. There is an implied undertaking to the court not to use documents produced for a collateral purpose. But when documents are asked for by letters rogatory there can be no implied undertaking to the English court, which must leave it to the foreign court to say what use of the documents is to be permitted. Under American law Westinghouse, once it had got hold of the documents, could not be stopped effectively from using them in the Illinois proceedings. Westinghouse did not apply by letters rogatory in the Illinois proceedings as well as the Virginian proceedings because under American law the evidence was available for both.

As to the effect of the intervention of the United States Attorney-General, it is initially submitted: (1) The grand jury proceedings and later the subpoena of March 2, 1977, issued by the State Department to Westinghouse requiring production for the purposes of the grand jury of any documents in its possession are not a new factor. Once the evidence requested had been given in the Virginian proceedings it would be in the public domain and, subject to United States rules of admissibility, would be available in the grand jury proceedings.

(2) The Illinois proceedings are civil and not penal for the purposes of the rule of international law that one State does not enforce the penal laws of another.

(3) Judge Merhige's ruling on privilege did not exhaust the letters rogatory.

(4) The question whether the order under 18 U.S.C. 6002 and 6003 was properly made and what was its effect is one of American law. It was never contemplated that, so far as it required witnesses to attend, it was enforceable in England.

(5) As regards the orders of Master Jacob upheld by MacKenna J. and the Court of Appeal, strictly on appeal the court should consider whether it was justifiable in the circumstances which existed at that time, but the respondents are willing that the House of Lords should consider the evidence as if the order had been made in a subsequent application.

The substantial question is whether if a litigant in country A applies to the local court for letters rogatory addressed to country B and the

[1978]		602
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

person charged with the administration of the criminal law in country A, in order to make the examination under the letters rogatory more effective in extracting evidence or information of use to him, grants the witness immunity it can be said that the purpose of the letters rogatory is no longer that of obtaining evidence for use in civil proceedings. The answer is that the effect of the grant of immunity is that the purpose will be more effectively achieved and the motive of the person who granted the immunity is irrelevant.

Section 1 of the Act of 1975 is satisfied in the present case. Westinghouse applied for letters rogatory and judge Merhige issued them to obtain evidence in the Virginian proceedings. The fact that the request will be more effective because an order of immunity has been granted on the application of the State Department and the motive of the State Department is making that application are both irrelevant. The motive does not change the nature of the letters rogatory so as to make them no longer an application for evidence to be obtained in civil proceedings. The evidence was to be obtained for civil proceedings and for no other purpose.

There is a discretion under section 1, but this appeal should not be allowed on the ground that the evidence will be used in the grand jury proceedings. There is no want of good faith in Westinghouse in trying to use the letters rogatory to get evidence for some other proceedings. It should not fail to get vital evidence only because the fetter on compelling answers has been removed by the United States Attorney-General for some different purpose.

No order made under the Act of 1975 can violate United Kingdom sovereignty because such an order and any evidence taken under it are enforced under the powers of the United Kingdom courts. The convention ratified by the United Kingdom in 1976 is a treaty between the States which adhered to it, ratified it and signed it. The United Kingdom in effect undertook to introduce legislation giving effect to the principles of the convention. It did so in a way which did not prejudice its sovereignty. Therefore there was no need for the Act of 1965 to make any reservation giving a right to refuse letters of request if it was considered that sovereignty would be infringed. But it was necessary to preserve the right to object on grounds of security: see section 3 (3). Everything had to be done through the courts of the United Kingdom and enforcement was for them. Sovereignty was preserved. If there were any difficulties as to whether a letter of request was proper or within the spirit of the convention that was to be dealt with at a diplomatic level: see article 36 of the convention.

The effect of article 2 (2) (b) of the draft convention between the United Kingdom and the United States providing for the "Reciprocal Recognition and Enforcement of Judgments in Civil Matters" 1977 (Cmnd. 6771) is that, by reason of the words "to the extent" the judgments referred to would be enforceable to the extent of damages but not in excess of what is properly considered damage. This would apply to any damages recovered by Westinghouse in the Illinois proceedings.

As to Imperial Chemical Industries Ltd. v. E.C. Commission [1972] C.M.L.R. 557, 628-629 the court there looked to see whether there was

[1978]		603
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

a concerted practice and whether the conduct had effects within the Common Market, holding that because it had such effects it was carried on within the Common Market. Thus, if the acts complained of in the Illinois proceedings had taken place within the Common Market while R.T.Z. were outside it, the Common Market would have asserted jurisdiction. Article 85 of the treaty does not bring into English domestic law the whole of the effects doctrine because England has its own restrictive practices law but if what is alleged to have taken place in the United States were alleged to have taken place in Europe that would constitute an infringement of article 85, which is part of English law. Accordingly the United States are not asserting a jurisdiction over commercial matters which English law would regard as wholly improper.

No question of comity is properly before the court. If public interest privilege is claimed, the claim must be supported by a certificate and affidavit of the Minister.

To satisfy the test the evidence must be shown to be required for the purpose of civil proceedings in the court issuing the letters rogatory. If that is the present purpose it is no objection that there is also a present intention to hand the evidence on, when it becomes public, to use it in other civil proceedings or even to hand it to the criminal authorities to enable them to start criminal proceedings, but if it can be shown that there is no real intention to use the evidence in the civil proceedings in the court issuing the letters rogatory, the test is not satisfied. But that is not the position here.

Rokison Q.C. in reply. The letters rogatory should not be looked at simply on their face value. Looking at the matter as a whole, this is a "fishing" operation not limited to directly relevant material for use at the trial.

On the claim of privilege under section 14 of the Act of 1968 the question is: Would the production of the documents requested by Westinghouse tend to expose the companies to proceedings for the recovery of a penalty? Two points are now raised: (1) whether the imposition of the fine results from "proceedings" and (2) whether the production of the documents would be likely to result in the imposition of a fine. The first question is misconceived. It should be whether R.T.Z. would be exposed to proceedings for the recovery of a penalty.

The method whereby any penalty imposed by the Commission would be enforced against R.T.Z. would be by proceedings for the recovery of the appropriate penalty. Before the Act of 1968 the privilege in respect of exposure to penalties was very wide and was not restricted to penalties which resulted from legal proceedings. There is a principle that a statute should be construed, as far as possible, as not altering the common law.

If the appellants are wrong on the point of proceedings for enforcement under the English order, then the imposition, as opposed to the recovery, of a fine in these circumstances would be the result of "proceedings" broadly construed.

On the point of "tendency to expose" the questions are: (a) What is the test? (b) Have R.T.Z. satisfied it? The test depends on two principles: (1) A witness claiming privilege must depose on oath or affirmation to a belief that the answer to the question or the production of

[1978]		604
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

the document will or may tend to expose him to incrimination or a penalty; the mere assertion that advice has been received to that effect is not enough. (2) The oath will not be conclusive and the court must also be satisfied from the subjective point of view that the claim is not made in bad faith and also, objectively, that there is a reasonable apprehension of a real risk as opposed to an imaginary or fanciful risk. If these tests are satisfied the court will allow great latitude to the witness to judge for himself the extent of the exposure and will not balance the degree of likelihood that proceedings may result: see Maccallum v. Turton (1828) 2 Y. & J. 183; Reg. v. Boyes, 1 B. & S. 311; the Triplex case [1939] 2 K.B. 395. Here it cannot be said that there is only a fanciful risk, one of which a reasonable man would not take account.

Under the Act of 1975 there is a double filter. (1) If the request is not for the obtaining of evidence as there exposed the discretion of the court under section 2 does not arise, since the court has no power to make an order. (2) If it is a request for the obtaining of evidence, section 2 imposes limits on the orders the English court can make to steps which could be compelled in English proceedings. In any event, section 2 (3) precludes the making of an order for discovery in the wide sense from a non-party, whether oral or documentary, which section 2 (4) imposes a filter as to documents. The court has an overall discretion.

The important features in considering whether or not this is discovery: (1) The request was in effect at the time of the application for all the documents relating to uranium. The witnesses included "any other person with knowledge." Clearly this is "fishing." (2) From what Judge Merhige said when he decided to issue the letters rogatory it appears that this was a fishing expedition not restricted to directly relevant material which might lead to the discovery of directly relevant material. (3) Westinghouse did not deny that this was pre-trial discovery. (4) The circumstances of the making of the application were that the cases were only consolidated before Judge Merhige for pre-trial purposes; the issues which would be before the court had not been finally determined and the process of discovery in a wide sense was going on among domestic producers. (5) The evidence Westinghouse were seeking from the foreign producers was regarded by them in the same light as the pre-trial discovery they were taking from the domestic producers. (6) The scope of the discovery has not been been limited by the order of the court, nor is there anything in the letters rogatory in relation to the oral testimony limiting the scope of the examination. This is relevant to the stage of the first filter in section 1 when one is considering whether this is a fishing expedition. It is only when one reaches section 2 and the second filter that the court must consider whether to make an order and on what terms.

The extent to which the documents are sufficiently specified is relevant to the question whether this is a "fishing" expedition. If the documents are of very broad categories that would indicate a "fishing" expedition. Under section 2 (4) (b) of the Act of 1975 the question arises whether the documents are "particular documents specified." The filter there is very fine. Cases before that Act are not helpful, since before it there was no definition of the degree to which documents had to be specified.

[1978]		605
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

It is not helpful to consider whether the document would have been sufficiently specified for the purposes of a subpoena duces tecum.

If the appellants fail on the discovery point the order made should be limited to the minutes of meetings, with date and location, and letters, with dates and addressee. When Westinghouse ask for the reply to such a letter the onus is on them to show, on a balance of probabilities, the likelihood that there was a reply and that it is in the possession, custody or control of R.T.Z.

Lee v. Angas, L.R. 2 Eq. 59, 64, has no application to the present case. No question of waiver could arise in this case. Further the position there contrasts with the limitations of section 2 (4) of the Act of 1975.

On privilege in respect of the oral testimony, the letters rogatory were exhausted by the ruling of Judge Merhige. Even if they were not exhausted the examination of the witnesses who attended was completed. The Act of 1975 contemplates that they should face questioning once and that the requesting court should rule on privilege once: see section 3 (2). The judge of the requesting court, so far as procedure under the Act is concerned, has one function only i.e. to rule on the question of privilege referred to him.

When purporting to sit in London as a judge of the Virginia court and purporting to keep the witnesses under recall Judge Merhige misunderstood his position and his powers. He had no power to keep them under recall. He was purporting to act in three capacities, ruling on privilege as judge of the requesting court, taking the examination of the witnesses as examiner and making orders for the future conduct of the proceedings as judge of the Virginia court.

As to the point that it does not make sense, if one can get round a company's privilege by getting the same information out of its servants, its officers are no more than its mouthpiece; cf. Earl of Suffolk v. Green(1739) 1 Atk. 450. Where the interest of the company and the individual are the same and the individual is being questioned because he is the very person alleged to have been concerned in the relevant activity of the company it is an abuse to ask for the material through his mouth. It is the company's privilege, but he can claim it on behalf of the company. Effect should be given to the company's privilege which it has claimed directly by allowing that privilege to be claimed indirectly.

The question in what circumstances the individual is to be identified with the company arises in other areas of the law. The admission of an employee is evidence against a company if he has overall control of its activities or is responsible for the particular business in question: see Phipson on Evidence, 12th ed., p. 316, para. 728, p. 317, para. 731, p. 318, para. 732; Reg. v. Andrews-Weatherfoil Ltd. [1972] 1 W.L.R. 118.

Apart from the discretionary privilege, there is the overall discretion vested in the court under the Act of 1975 and by virtue of the discretion the court would not confirm an order to testify if the individuals through their oral testimony would be likely to render the company's privilege nugatory.

As to the other proceedings in America, where it is apparent to the English courts that the material sought is also required for other purposes,

[1978]		606
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))

no order should be made. The court in the exercise of its discretion can prevent the material getting into the public domain by refusing to make the order sought. When an English defendant is not within the jurisdiction of the foreign court and has taken no part in the proceedings there the English court will not help the foreign court or the foreign plaintiff through it to get evidence from the defendant. That is independent of the submission that the anti-trust proceedings which have been initiated are penal and will not be given effect to by an English court.

As to the intervention of the Department of Justice, it made it clear that the oral depositions are required for a collateral purpose, which is now the dominant one. It has also made the evidence compellable in the United States. Judge Merhige's order under U.S.C. sections 6002/3 may have been valid under American law but the question whether an English court will give effect to it is one of English law. Judge Merhige was purporting to exercise an extra-territorial jurisdiction by making an order compelling Englishmen to testify in England. The order compelling testimony has no effect in England and the English courts should not disregard the compulsion and concentrate on the immunity from prosecution given to the witnesses. Since the intervention of the Department of Justice the demand has been for evidence for the purposes of the grand jury investigation.

Westinghouse could not apply the letters rogatory procedure to the grand jury investigation because no proceedings were pending. Both Westinghouse and the Department of Justice were blocked in their tracks. Therefore they tried to ride on the back of the letters rogatory in the Virginia court, to get evidence which otherwise they could not.

Vinelott Q.C. in reply on the cross-appeal. The relevant words are "proceedings ... for the recovery of a penalty "in section 14 (1) of the Act of 1968. The question is whether they should be read as proceedings to impose liability to a penalty or proceedings for payment of a penalty. The Act plainly altered the pre-existing law. Section 14 looks to penalties imposed as a result of proceedings.

As to the "tendency" point, the documents sought would add nothing to what the Commission already knew and it is under a duty to act and has the power to act.

Their Lordships took time for consideration.

December 1, 1977. LORD WILBERFORCE. My Lords, on October 28, 1976, an ex parte order was made in the High Court, Queen's Bench Division, under section 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 Corporation ("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

[1978]		607
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

in damages. Westinghouse put forward (inter alia) a defence of commercial impracticability arising from an alleged uranium producers' cartel.

The letters rogatory, issued on October 21, 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 Corporation Ltd. ("R.T.Z.") and R.T.Z. Services Ltd. ("R.T.Z. Services") which collectively I shall refer to as "the R.T.Z. 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 R.T.Z. companies. The present appeals are brought by the R.T.Z. 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 October 28, 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 May 26, 1977, the Court of Appeal (1) dismissed the appellants' 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 (2) - in favour of the R.T.Z. companies - that penalties provided for by article 15 of regulation 17 of the General Regulations of the European Economic Community for breach of articles 85-86 of the Treaty of Rome (which deals with restrictive or concerted practices) constituted a "penalty" within the meaning of section 14 of the Civil Evidence Act 1968 so as to provide the foundation for a claim for privilege against the production of documents. The R.T.Z. 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 appellants to privilege under the law of the United States, viz., the Fifth Amendment to the Constitution (self-incrimination). I shall state the facts relevant to this claim later when I come to consider it. The second concerns the documents. On June 10, 1977, in proceedings under the letters rogatory at the United States Embassy in London, the R.T.Z. companies, pursuant to the judgment of the Court of Appeal of May 26, 1977, claimed privilege against production of all (save six) of the scheduled documents on the ground that production would tend to expose the R.T.Z companies to proceedings for the recovery of a penalty (section 14 of the Civil Evidence Act 1968). This claim was challenged by Westinghouse but on July 11, 1977, the Court of Appeal 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 October 28, 1976, giving effect to the letters rogatory to have been set aside?

2. Can the R.T.Z. companies claim privilege against production of the scheduled documents?

[1978]		608
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

3. Can the individual appellants claim privilege against self-incrimination under the law of the United States?

1. The law in England which provides for giving effect to letters rogatory is the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the "Act of 1975"). Before 1975 this matter was regulated by the Foreign Tribunals Evidence Act 1856, as amended and supplemented by various later statutes. The Act of 1975 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 (Cmnd. 3991, 6727) which the United Kingdom ratified in 1976. The 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 Act - particularly section 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 rules 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 R.T.Z. companies are not parties to the Richmond proceedings.) The nature of these powers was well summarised by Devlin J. as follows:

"... it is plain that that principle [of discovery] has been carried very much further in the United States of America than it has been carried in this country. In the United States of America it is not restricted merely to obtaining a disclosure of documents from the other party to the suit, but there is a procedure ... which allows interrogation not merely of the parties to the suit but also of persons who may be witnesses in the suit, or whom it may be thought may be witnesses in the suit, and which requires them to answer questions and produce documents. The questions would not necessarily be restricted to matters which were relevant in the suit, nor would the production be necessarily restricted to admissible evidence, but they might be such as would lead to a train of inquiry which might itself lead to relevant material": see Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618, 643-644.

That case - not dissimilar on its facts from the present - arose under the Act of 1856, section 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 draftsmen of the Act of 1975.

In the first place, the 1970 convention by article 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 section 2 (4) of the Act of 1975. In the Act itself, section 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 Corporation case [1956] 1 Q.B. 618

[1978]		609
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

is preserved in section 2 (3) and (4). Subsection (3) states that an order (s.c. of the English High Court) giving effect to the request "shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order ..." and subsection (4) that an order under section 2

"shall not require a person - (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."

These provisions, and especially the words "particular documents specified in the order" (replacing "documents to be mentioned in the order" in the Act of 1856) 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 upon 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 C.J., not to countenance "fishing" expeditions: Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618, 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 M.R. referred to a submission for R.T.Z. that the case was similar to the Radio Corporation 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 article 23. (Unfortunately the print of Cmnd. 3991 does not contain the reservation.) So he could not accept counsel's general submissions. Roskill L.J. seems to have been under the same impression for he too put the Radio Corporation case on one side. I think that the Court of Appeal, while correctly stating that the Act of 1975 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 upon the terms of the letters rogatory and some observations by the learned United States District Judge at Richmond (Judge Merhige). The letters in relation to the R.T.Z. Corporation recite that,

"it has been suggested to us that justice cannot be done among the said parties without the testimony which is intended to be given at the trial of the actions, of the following persons ... nor without the production of certain documents in the possession of the Rio Tinto-Zinc Corporation Ltd. such testimony and such documents being related to the existence and terms of various agreements, arrangements or concerted practices between Rio Tinto-Zinc Corporation

[1978]		610
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

Ltd. and" (numerous other named companies) "and further that the existence and terms of such agreements, arrangements or concerted practices are relevant to the matters in issue in the actions at present in this court ...". (My emphasis.)

The letters in relation to R.T.Z. Services Ltd. are 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 Corporation of America case [1956] 1 Q.B. 618, 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 inquiry extending (impermissibly) to trains of inquiry 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 Act of 1975 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 R.T.Z. 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 face of the descriptions, or copies, or originals of them, might be in the possession of one of the R.T.Z. 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," i.e., it deleted (as under section 2 of the Act of 1975 it is entitled to do) a number of items, and (more doubtfully)

[1978]		611
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

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 is 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 Act of 1975 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 R.T.Z. 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 October 15, 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 R.T.Z. 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 R.T.Z. 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 R.T.Z. 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,

[1978]		612
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

on the whole, I am of opinion that following the spirit of the 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: 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 October 28, 1976, on the ground that it provided for illegitimate discovery.

2. I now deal with the question whether the R.T.Z. companies can claim privilege against production of the documents requested under section 14 of the Civil Evidence Act 1968. This, as section 3 (1) (a) of the Act of 1975 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 May 26, 1977, and July 11, 1977, and I am satisfied with their reasoning. These judgments establish: (a) that fines imposable by the Commission of the European Communities under articles 85 and 86 of the Treaty of Rome and article 15 of general regulation 17 are penalties - this was not disputed in this House; (b) that section 14 of the Act of 1968 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, section 14 (1) (a)); (d) that production of the documents would tend to expose the R.T.Z. companies to proceedings for the recovery of a penalty, none the less though the Commission: (i) has knowledge of the "environmentalist" documents; (ii) has extensive powers of investigation; (iii) has a duty to enforce articles 85 and 86 - see article 89.

I base that conclusion in part upon evidence which was before and considered by the High Court and the Court of Appeal and in part upon 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 R.T.Z. 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. [1939] 2 K.B. 395.

In my opinion the R.T.Z. companies make good their claim to privilege against production of the scheduled documents except those conceded and quoad these 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 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 (Act of 1975, section 3 (1) (b)).

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.

[1978]		613
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

On June 8, 1977, one of the individual appellants, 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 so under section 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 upon this question and sat at the United States Embassy from June 13-16. All the seven witnesses - appellants - claimed the Fifth Amendment privilege and on June 14, 1977, his Honour 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 June 15, 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 D.C. 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 June 16, 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 any application in a civil case to which the United States Government was not a party for an order under 18 U.S.C. sections 6002-6003 (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 July 18, 1977, made application to Judge Merhige in Richmond for an order to compel testimony under 18 U.S.C. sections 6002-6003. These provisions are, so far as relevant, as follow:

"6002. Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to (1) a court or grand jury of the United States ... (3) ... and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his

[1978]		614
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

privilege against self-incrimination; but no testimony or other information compelled under the order ... may be used against the witness in any criminal case, except ..." (not relevant)

"6003. (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part. (b) A United States attorney may, with the approval of the Attorney-General, the Deputy Attorney-General, or any designated Assistant Attorney-General, request an order under subsection (a) of this section when in his judgment - (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination."

The request was accompanied by two letters:

1. A letter dated July 11, 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 sections 6002-6003, 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.)

2. A letter dated July 12, 1977, signed by the Attorney-General of the United States also addressed to the U.S. Attorney Eastern District of Virginia, stating that the writer concurred in the request. This letter contained the following:

[1978]		615
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

jury, and (6) The subject matter of this grand jury is of particular importance."

On July 18, 1977, Judge Merhige, as he was obliged to do under section 6003 (a), made an order in respect of each of the witnesses named compelling his testimony in the terms provided for by sections 6002-6003. He expressed the opinion that the matter of sanctions might be tested in the English court and said that he encouraged that course. On July 25, 1977, the witness appellant 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 Act of 1975. 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: section 3 (1) (b). 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 upon is the order made by the District Judge under the provisions of 18 U.S.C. sections 6002-6003. 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 June 15 and July 11 and 12, 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 section 1 (b) of the Act of 1975, so that to use the procedure of the Act of 1975 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 the Act of 1975, section 5, 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 section 5, and the procedure is an attempt to get the evidence in spite of that fact. Thirdly, the evidence is sought

[1978]		616
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

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 Act of 1975 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 R.T.Z. companies was an infringement of United Kingdom sovereignty - see British Nylon Spinners Ltd. v. Imperial Chemical Industries Ltd. [1953] Ch. 19. But in the present case, there has been an intervention by H.M. 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.

1. 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.

2. 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.

3. That the intervention of the United States Government followed by the grant of the order and immunity of July 18, 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 prejudice to the sovereignty of the United Kingdom - that is expressly provided for in article 12 (b) of the Hague Convention. 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 July 18, 1977, and the letter of July 12, 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 June 16, 1977, and repeated in the letter of the Attorney-General of the United States of July 12, 1977, that there is a firm policy against seeking orders under sections 6002-6003 in private litigation.

[1978]		617
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Wilberforce

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 extraterritorially against United Kingdom companies. The courts should in such matters speak with the same voice as the executive (see The Fagernes [1927] P. 311): 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 July 18, 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 June 14, 1977, that the witnesses were entitled to privilege under the Fifth Amendment.

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 upon it now.

I would allow the appeals of the R.T.Z. 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 March 18, 1970, the United Kingdom signed at The Hague a convention "on the Taking of Evidence Abroad in Civil or Commercial Matters" designed "to improve mutual judicial co-operation in civil or commercial matters" (Cmnd. 6727). It was ratified on July 16, 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

[1978]		618
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

would be prejudiced thereby: and 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" (Reservations and Declarations, United Kingdom, paragraph 3) and understood letters which required a person

"(a) to state what documents relevant to the proceedings to which the letter of request relates are or have been in his possession, custody or power; or (b) to produce any documents, other than particular documents specified in the letter of request, as being documents appearing to the requested court to be, or to be likely to be, in his possession, custody or power"

to be "letters of request issued for the purpose of obtaining pre-trial discovery of documents."

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 Act of 1975") 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.

In the interests of comity, it is, and I trust will continue to be, as Lord Denning M.R. said in this case in the Court of Appeal (ante, p. 560H) "our duty and our pleasure to do all that we can to assist" the requesting court.

The powers possessed by United Kingdom courts in this regard are now contained and defined in the Act of 1975 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 that where an application is made for an order for evidence to be obtained in the United Kingdom

"and the court is satisfied - (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal ('the requesting court') exercising jurisdiction ... in a country or territory outside the United Kingdom; and (b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated,"

then, and I stress only then, has the court the powers conferred by the following provisions of the Act and able to give effect to the request.

[1978]		619
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

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 Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618 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 Court of Appeal held that what was being sought was material relating to pre-trial discovery, material which might lead to a line of inquiry 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 Act 1856, section 1, now replaced by "evidence" in the Act of 1975) "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 C.J. said at p. 641 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 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, at p. 649, "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 Act of 1975 has a different meaning to "testimony" in the Act of 1856. 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 Act of 1975. 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 section 1 (a). It is clearly satisfied.

The appellants contend that section 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 D.C.

The material put before us does not suffice to enable me to decide

[1978]		620
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

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 section 1 (b) being satisfied for it is not disputed 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 1bs. 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 1b. in 1973 to about $41 a 1b. The respondents had not covered themselves against this liability and by September 1975 were short of approximately 75 million 1bs. of uranium. In that month they gave notice to the other parties to the 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 section 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 section 5 of this 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 appellant companies, with uranium producers (including governments) from France, Canada, Australia and South Africa, were members.

On October 15, 1976, the respondents started civil proceedings for breach of anti-trust laws in Illinois against the appellant companies and many others. In that action they claimed treble damages, a sum in the region of $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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

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) on the ground 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 October 21. 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."

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

"including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

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.

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

Each contained recitals, one saying:

"It has been suggested to us 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 ... being directors and/or employees and/or former directors and/or former employees of the Rio Tinto Zinc Corporation ..."

Then five persons are named and the recital goes on

"or such other director or other person who has knowledge of the facts as to which evidence is desired as hereinafter stated, nor without the production of certain documents in the possession of" that company "such testimony and such documents being related to the existence and terms of various agreements, arrangements or concerted practices, between" that company "as well as others whose identities are presently unknown."

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

"Said agreements, arrangements or concerted practices identities relate to past, present and future uranium prices, uranium supply, uranium demand, allocation of uranium markets, relationships of uranium producers with 'middlemen,' including their willingness or lack, of same to make sales to 'middlemen' and the terms and conditions under which such sales should be made, if at all, the terms of contracts for the sale of uranium to uranium consumers and the United States embargo on the importation of enriched uranium. And whereas the existence and terms of such agreements, arrangements or concerted practices are relevant to the matters in issue in the actions at present in this court."

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 the Rio Tinto Zinc Corporation 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 paragraph 16 which asked for the production of

"copies of all contracts, letters of intent, enquiries and quotations

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

together with invoices of actual deliveries of uranium, thorium and their ores and compounds provided by members of the organisation or organisations known variously as the 'Uranium Marketing Research Organisation,' the 'Uranium Producers' Club,' the 'Secretariat' and 'Sociètè D'Études et de Recherches D'Uranium' ('S.E.R.U.')."

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 Corporation of America case [1956] 1 Q.B. 618 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 persons 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. 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 in so far as it related to the production of documents. On appeal Devlin J., with whose judgment Lord Goddard C.J. and Hilbery J. agreed, expressed the view [1956] 1 Q.B. 618, 648 that Barry J. ought logically to have gone on and disallowed the order for the examination of Sir George Nelson and Mr. Nelson,

"because exactly the same principle applies to both. If he had not power to do one he had not power to do the other, and the reason why he had not power to do it was because it was not made clear to him that the foreign court was desirous of obtaining ... evidence which may be used at the trial and not in proceedings for inspection and discovery before the trial."

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 schedule 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.

The 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, are 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

that part satisfies section 1 of the 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 Corporation of America case [1956] 1 Q.B. 618, 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 Corporation case 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 paragraph 16 of schedule 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 paragraph 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 section 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 section 1 of the Act of 1975 the letters have to be considered in the form in which they are received.

In this case, as in the Radio Corporation 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 C.J. said at p. 641 in that case, one must look "at the substance of the matter."

I have naturally carefully considered the judgments of Lord Denning M.R., of Roskill L.J. 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,

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

which, as I have said, includes discovery of matters which may lead to the securing of evidence.

Not being so satisfied, as section 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.

It was also contended on behalf of the appellants that if section 1 of the 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 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 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) contain restrictions on the exercise of that power, subsection (3) providing that:

"An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order. ..."

Subsection (4) reads as follows:

"An order under this section shall not require a person - (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."

This subsection states in statutory form 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 section 2 of the 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

[1978]		626
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

documents. Subsection (3) is of general application. As Lord Goddard said in the Radio Corporation of America case [1956] 1 Q.B. 618 "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 section 1 of the Act is satisfied, have been made for the examination of any witness or for the production of any documents.

On October 28, 1976, Master Creightmore ordered the examination of the persons named in the letters rogatory and the production of the documents asked for in schedule B.

On February 22, 1977, Master Jacob refused to set aside his order and MacKenna J. dismissed the appeal from his decision. On May 26, 1977, the Court of Appeal as I have said, amended schedule B, and subject thereto, allowed the order to stand.

On June 8, consequently, three of the persons named attended before a consular officer at the United States Embassy and on June 10 the appellant companies appeared by their proper officer. Those persons and the companies claimed privilege.

Section 3 (1) of the Act provides that

"A person shall not be compelled by virtue of an order under section 2 above to give any evidence which he could not be compelled to give - (a) in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction; or (b) subject to subsection (2) below, in civil proceedings in the country or territory in which the requesting court exercises jurisdiction."

Subsection (2) reads as follows:

"Subsection (1) (b) above shall not apply unless the claim of the person in question to be exempt from giving the evidence is either - (a) supported by a statement contained in the request ...; or (b) conceded by the applicant for the order; and where such a claim made by any person is not supported or conceded as aforesaid he may (subject to the other provisions of this section) be required to give the evidence to which the claim relates but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim."

The three named persons claimed that under the Fifth Amendment to the United States Constitution they could not be compelled to give evidence and the companies claimed privilege under section 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 Treaty of Rome (E.E.C. Treaty) prohibits it.

"1. ... incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the common market ..."

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

For infringement of this article the Commission may impose a fine of "from 1,000 to one million 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: see E.E.C. Council Regulation No. 17 of February 6, 1962, article 15, paragraph 2.

In this House it was not contended that a fine imposed for breach of article 85 was not a penalty within the meaning of section 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 upon 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 appellant 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 companies were disclosed.

In Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395 the judgment of the Court of Appeal, of which Sir Wilfrid Greene M.R. was a member, was delivered by du Parcq L.J. He said at p. 404 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 his being compelled to answer: Reg. v. Boyes per cur. (1861) 1 B. & S. 330." 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 M.R. said p (ante, p. 573F-G) that he doubted whether that case would be decided in the same way today. It may be that it 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 as criticising the reasoning in the Triplex case but only its application.

Lord Denning M.R. went on to say at p. 574 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.'" He went on to say:

"It may be improbable that they "(proceedings)" will be taken, but nevertheless, if there is some risk of their being taken - a real and appreciable risk - as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents."

With these observations I respectfully agree. It was suggested that the

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

reasoning in the Triplex case had reduced the burden which formerly lay on a person claiming privilege but I do nat think that that is the case. In his judgment du Parcq L.J. reviewed the earlier cases and based his conclusions on them. Lord Denning 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 appellant 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 article 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 Amendment. Instead of the procedure laid down by R.S.C., Ord. 70, r. 6 being followed Judge Merhige came to London to the United States Embassy and there, on June 14, 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 June 15, 1977, Judge Merhige received a letter from the Deputy Assistant Attorney-General, Anti-Trust Division, of the United States in the following terms:

"Dear Judge Merhige,

"The United States Department of Justice ('Department') has been informed by counsel for Westinghouse Electric Corporation that to date the depositions of certain employees of the Rio Tinto Zinc Corporation, which are being taken in England pursuant to letters rogatory issued by your court ... have been totally unproductive due to assertions of the United States Fifth Amendment privilege by the witnesses. We have also been informed that counsel for the letters rogatory deponents have indicated that all future witnesses will likewise assert their privilege against self-incrimination and refuse to testify.

"As you undoubtedly know, the department is currently conducting a grand jury investigation into certain aspects of the domestic and international uranium industry, including the possibility that non-U.S. uranium producers, one of which is Rio Tinto Zinc Corporation Ltd., have engaged in conduct violative of United States anti-trust laws. In the course of this investigation the Department has attempted, with little or no success, to obtain information directly from foreign uranium

[1978]		629
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

producers and their officers and employees. We therefore believe that the depositions taken pursuant to the letters rogatory issued by this court might well be the sole opportunity for our grand jury to obtain information vital to its investigation and deem it necessary to its orderly functioning that full discovery pursuant to the letters rogatory be had.

"Accordingly to eliminate what may be a major obstacle to discovery in the letters rogatory proceedings, the Government represents to this court and to the letters rogatory deponents listed below that it will not utilise, either directly or indirectly, the deposition testimony of a witness which is given pursuant to letters rogatory issued by this court as a basis for criminal prosecution of that witness for a violation of any United States law. This representation applies to the following individuals."

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 June 16, 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 finn 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 Justice Department had asked him to issue letters rogatory, whether he would not have done so as there was no case before his court of a criminal nature.

An aide-mèmoire dated June 27 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-mèmoire, on July 11, 1977, the United States Deputy Assistant Attorney-General, Anti-Trust Division, authorised an application to Judge Merhige at Richmond for an order under U.S.C. paragraphs 6002-6003 that Lord Shackleton should give evidence.

U.S.C. paragraph 6003 provides that a United States District Court shall, on the request of the United States Attorney for the district, issue an

[1978]		630
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

order requiring a witness to testify despite his refusal to do so on the ground that it might incriminate him; and U.S.C. paragraph 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 July 12 the Attorney-General for the United States wrote to the United States authority for the district a letter which, so far as material, reads as follows:

"These immunity requests are for the purpose of permitting testimony to be compelled in a civil litigation to which the United States is not a party. As you know, the Department of Justice has a firm policy against seeking such orders in private litigation except in the most extraordinary circumstances. In my judgment, the testimony of the individuals for whom orders are to be sought is necessary to the public interest. The extraordinary circumstances which led me to this conclusion include the following: (1) Those persons whose testimony is sought have refused to testify on the basis of their privilege against self-incrimination, and they are outside the personal jurisdiction of the United States courts; (2) These persons are not likely to come within the personal jurisdiction of United States courts so long as the Department of Justice continues a sitting grand jury investigation of the international uranium industry; (3) These persons are British subjects and we have determined that it is highly unlikely that their testimony could be obtained through existing arrangements for law enforcement co-operation between the United States and the United Kingdom; (4) The Department of Justice has been largely unable to obtain information from these foreign persons about the subject matter of this investigation; (5) The testimony these persons give may well be indispensable to the work of the grand jury and (6) the subject matter of this grand jury is of particular importance. It is on this basis that I approve of the requests for orders requiring these individuals to give testimony."

On July 18 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 June 16 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 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

[1978]		631
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

States Attorney, it is clear that the High Court could not, if they had been issued on his application, have made an order under section 2 of the Act of 1975 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 Act of 1975 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 June 16, it is clear that the persons named could not have been compelled to testify. The question now is, should they now be required to do so consequent upon the intervention of the United States Attorney-General who wants to compel the giving of evidence by persons who, his letter of July 12, 1967, 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 section 2 of the 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 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.

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.

[1978]		632
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Viscount Dilhorne

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 section 2 of the Act of 1975, or whether the fact that those proceedings are penal and against, among others, the appellant companies not subject to United States jurisdiction, justifies the conclusion that they constitute an invasion of sovereignty of the United Kingdom in so far as they relate to those companies.

Mr. Rokison advanced the interesting argument that the privilege to which the appellant 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 company 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 appellant 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 other appellants' claims to privilege upheld by Judge Merhige on June 16 meant that, in consequence of section 3 (1) (b) of the Act of 1975, 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 their 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 sections 1 and 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, and nowhere else. The Act of 1975 was passed, in part (which includes sections 1, 2 and 3), to enable the United Kingdom to ratify the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters done at The Hague on March 18, 1970. Ratification by the United Kingdom took place on July 16, 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 Act of 1975 in conformity with previous decisions of English courts as to the meaning of different words used in a previous statute, the Foreign Tribunals Evidence

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Act 1856, which was repealed by the Act of 1975. 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 Act of 1975. Section 1 is the section which confers upon the High Court jurisdiction to make an order under the Act; section 2 defines what provisions the court has power to include in such an order; while section 3 deals with the right of witnesses to refuse to give oral or documentary evidence under the order.

Under section 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:

"(b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated."

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 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 March 18, 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 section 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 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 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

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Act. Any limitation on the use of this procedure for the purpose of "fishing" discovery is, in my view, to be found in section 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 Act of 1975 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 R.T.Z. 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 subsections (3) and (4) of section 2 of the Act of 1975. They read as follows:

"(3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court. (4) An order under this section shall not require a person - (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."

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 rule 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.

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Diplock

The difficulty involved in the application of subsection (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 inquiry 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.

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 R.T.Z. 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 witnesses, however, Westinghouse were in possession of photostat copies of documents of considerable probative weight, even if technically inadmissible at the trial in the Virginia proceedings, which linked the two R.T.Z. 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 R.T.Z. companies must not only satisfy the requirements of subsection (3) which exclude fishing discovery, but also the stricter requirements of subsection (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 M.R. 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 subsection (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 May 26, 1977. The Court of Appeal were, in my view, bound by subsection (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" - s.c. 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

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satisfy the requirements of subsection (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 May 26, 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 upon which the R.T.Z. companies or the individual witnesses were entitled to rely under section 3 (1) (a) or (b) of the Act of 1975. This reads as follows:

"(1) A person shall not be compelled by virtue of an order under section 2 above to give any evidence which he could not be compelled to give - (a) in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction; or (b) subject to subsection (2) below, in civil proceedings in the country or territory in which the requesting court exercises jurisdiction."

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

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

"(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty - (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; ..."

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 Law Reform Committee 16th Report (1967) Cmnd. 3472.

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 article 15 of regulation 17 of February 6, 1962, for intentionally or negligently acting in breach of article 85 of the Treaty of Rome. 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 regulation 17. For the reasons given by the Court of Appeal in their judgments of May 26, 1977, I agree that a fine imposed by the Commission under the regulation is a "penalty" for the purposes of section 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 1972.

The companies took their claim to privilege under section 3 (1) (a)

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before the examiner. It was upheld by MacKenna J. and on appeal by the Court of Appeal in their judgment of July 11, 1977. The argument for Westinghouse, rejected by the Court of Appeal, that has been pressed in this House was that whatever risk the R.T.Z. companies ran of having a fine imposed upon 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 article 85 (1) of the Treaty of Rome. The argument does not involve the proposition that the companies are not infringing article 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 article 85 (3), which empowers the Commission to declare article 85 (1) to be inapplicable to cartels which satisfy certain conditions.

My Lords, article 89 of the Treaty imposes upon the Commission the duty of seeing to the application of article 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 upon to do so under article 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 regulation 17 they have wide powers of investigation under which they could, if they thought fit, themselves compel the 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 companies speedier and severer action than they might otherwise have done and that such action might well include the imposition of penalties under article 15 of regulation 17. The Court of Appeal in my opinion were right in upholding the refusal of the two R.T.Z. companies to produce the documents requested in the letter rogatory.

It was submitted that since the 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 section 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Diplock

old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of this 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 section 3 (1) (b) of the Act of 1975 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 Act of 1975, 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 R.S.C., 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 July 18, 1977, ostensibly under the Organised Crime Control Act of 1970, 18 U.S.C., section 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 upon principles which transcend any irregularities in procedure.

The essential facts are:

(1) On June 14, 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 June 15, 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 July 16, 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 his previous ruling; but added that if an application were to be made to him under 18 U.S.C., sections 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 July 18, 1977, applications were made to Judge Merhige, with the written approval of the United States Attorney-General, for orders under sections 6002 and 6003 in respect of each of the named persons;

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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 section 3 (2) of the Act of 1975, 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 June 14 and 16, 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 sections 1 and 2 of the Act of 1975. In so far 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, section 5 (1) (b) of the Act of 1975 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 sections 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's General's belief that the testimony sought may well be indispensable to the work of the grand jury, include the following statement:

"These persons are British subjects and we have determined that it is highly unlikely that their testimony could be obtained through existing arrangements for law enforcement co-operation between the United States and the United Kingdom."

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

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in respect of the intervention of the Department of Justice in the proceedings in the instant case before Judge Merhige on June 16, 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, that 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 Act of 1975 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 sections 6002-6003 on July 18, 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 Act of 1975. 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 section 5 (1) (b) of the Act of 1975. I do not find it necessary to inquire 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 July 18, 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 R.T.Z. companies, is also spent by reason of their claim to privilege being upheld by this House, I would discharge the whole order as from July 18, 1977.

LORD FRASER OF TULLYBELTON. My Lords, on October 21, 1976, Judge Merhige, sitting in the United States District Court for the Eastern District of Virginia at Richmond, Virginia, 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, in the case of one of the letters, and of R.T.Z. Services Limited in the case of the other letter. Both these companies ("the R.T.Z. companies") are registered in England and neither of them is a party to the

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

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 October 28, 1976, Master Creightmore upon the ex parte application of Westinghouse, made orders under section 2 of the Evidence (Procedure in Other Jurisdictions) Act 1975 ("the Act of 1975") 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 R.T.Z. 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 October 28, 1976, has been taken by the 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 Act of 1975. There is no difference between the objections taken by the two R.T.Z. 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 Act of 1975 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 March 18, 1970, on the Taking of Evidence Abroad in Civil or Commercial Matters, though in one respect at least, it goes beyond the convention - see section 5 of the Act dealing with evidence for the purposes of foreign criminal proceedings. Section 1 of the Act of 1975 provides as follows:

"Where an application is made to the High Court ... for an order for evidence to be obtained in the part of the United Kingdom in which it exercises jurisdiction, and the court is satisfied - (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal ('the requesting court') exercising jurisdiction ... in a country or territory outside the United Kingdom; and (b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated, the High Court ... shall have the powers conferred on it by the following provisions of this Act."

The first question in the instant appeals is whether the court should be satisfied, as required by paragraph (b) of section 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.

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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 Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618. 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 section 1 of the Act of 1975. Devlin J. said, at p. 646:

"In [Burchard v. Macfarlane, Ex parte Tindall [1891] 2 Q.B. 241] the distinction is made plain between discovery or 'indirect' material on the one hand and proof or 'direct' material on the other hand, and that is the true distinction with which one must approach the word 'testimony' in this Act. Testimony which is in the nature of proof for the purpose of the trial is permissible. Testimony, if it can be called 'testimony,' which consists of mere answers to questions on the discovery proceedings designed to lead to a train of inquiry, is not permissible. Into which category does the present fall? It is perhaps enough to say that it is plain from what I have said of the nature of the proceedings in the court of Illinois that they fall into the latter category; they are pre-trial proceedings, proceedings by way of discovery. But if there be any doubt about that I do not think that one need do more than to look at the reasons which Judge Igoe, in the District Court of Illinois, gave when he granted the letters rogatory in this case. One passage is sufficient for my purpose. He said: 'I can find no authority, and none has been cited, for the proposition that a party must show what relevant and material evidence proposed witnesses have in their possession as a condition precedent to taking of depositions of alleged co-conspirators in an anti-trust case. It seems obvious that examination of the officers and agents of alleged co-conspirators may lead to the discovery of relevant evidence, and that is all that is required.' That shows, I think, plainly enough what the object of this procedure is."

The distinction between evidence and discovery is recognised in article 23 of the Hague Convention, and in section 2 (4) of the Act of 1975, 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, 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

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 May 20, 1977, which was relied on by Lord Denning M.R. and Roskill L.J. (ante, pp. 560F-H, 568H) 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 inquiry 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 M.R. (ante, p. 561G-H) referred to article 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 L.J., at p. 567F, also referred to article 23 and was apparently under the same misapprehension. The instrument of ratification of the United Kingdom contains a declaration that in accordance with article 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 section 2 (4) of the Act of 1975. 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 section 1 of the Act of 1975 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

think I am entitled to have regard to that statement, just as the court in the Radio Corporation case [1956] 1 Q.B. 618 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 schedule 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 section 1 of the Act of 1975. A typical specimen of the objectionable matter is in paragraph 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 R.T.Z. 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 section 2 (4) of the Act of 1975. That subsection provides as follows:

"(4) An order under this section shall not require a person - (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."

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 paragraph (a) of section 2 (4) of the Act of 1975, an attempt which should not be allowed to succeed. Moreover, I think that many of the items in schedule would be contrary to paragraph (b) of section 2 (4) 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

the letters 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 section 1 or under section 2 (4) of the Act of 1975, the whole request in the letters would have to be refused. The court has to look at the substance of the matter: see Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618, 641 per Lord Goddard C.J. In this case, having regard to the very wide range of documents that would fall within the description in schedule 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 section 1 of the Act of 1975. 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 section 2 (4). I am therefore of opinion that the order of October 28, 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 Act of 1975, that they ought not to receive effect, even in an amended form. I would therefore set aside the order of October 28 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 October 28, 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 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 R.T.Z. 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 dismissed an appeal by Westinghouse against his decision. Westinghouse are now appealing to your Lordships' House in what was referred to as the fifth appeal. It turns upon section 14 (1) of the Civil Evidence Act 1968 which provides as follows:

"The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty - (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; ..."

The R.T.Z. companies rely on that subsection because they say that production of the documents called for in schedule B would tend to expose them to proceedings for recovery of a penalty, namely a fine under General Regulation 17 of the European Economic Community, which was passed in implementation of articles 85 and 86 of the Treaty of Rome. Regulation 17 now forms part of the law of England by virtue of article 189 of the Treaty of Rome, and the European Communities Act 1972 section 2 and therefore the penalty would be a penalty provided for by the law of a 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 section 3 (1) (a) of the Act of 1975. In the Court of Appeal, Westinghouse argued that a fine imposed by the Common Market was not a "penalty" in the sense of section 14 of the Act of 1968, 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 article 15 (2) of regulation 17 the Commission have power to impose fines for infringement of article 85 of the Treaty summarily by "decision." I have some doubt whether that part of the argument is well founded, because the European Court of Justice has power under article 17 of regulation 17 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 section 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. Mr. Vinelott 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 article 14 of regulation 17 to investigate and to compel the disclosure of documents that might be evidence of infringement of article 85 of the Treaty; (3) the Commission has a duty under article 89 of the Treaty to ensure the application of the principles of article 85 against cartels, to investigate cases of

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

suspected infringement and to propose appropriate means to bring it to an end; (4) there is machinery under article 175 of the Treaty for member states and other persons and organisations to bring to the notice of the Court of Justice of the Community any failure by the Commission to act; (5) no "negative clearance" under article 2 of regulation 17 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 companies are already exposed, of proceedings for recovery of penalties.

There is force in Mr. Vinelott's 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 have the question of investigating the possible infringement of article 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 article 175 of the Treaty to force the Commission to act.

Mr. Vinelott 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 upon them. In my opinion that criticism was not justified. The test was stated in Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 K.B. 395, 403-404, where du Parcq L.J. said:

"Since the decision of the Court of Appeal in Ex parte Reynolds(1882) 20 Ch.D. 294 approving the decision of the Court of Queen's Bench in Reg. v. Boyes, 1 B. & S. 311, it has not been in doubt that the power of the court to insist on an answer is not limited to a case of mala fides. It extends to any case in which it is not made to appear to the court 'that there is reasonable ground to apprehend danger [of proceedings for a penalty] to the witness from his being compelled to answer': Reg. v. Boyes, per cur."

Although the members of the Court of Appeal expressed themselves in various words they all purported to follow the decision in Triplex. 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 nine individual witnesses claimed privilege under the Fifth Amendment to the United States Constitution and their claim was upheld by Judge Merhige on June 14, 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

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 acting 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 June 16, 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 Government 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 June 16, 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 fully 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 paragraphs 6002-6003 of the Organised Crime Control Act 1970, 18 U.S.C., 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:

"We are firmly convinced that we would not have even considered this letter if we had had an opportunity to get further direct information on this alleged cartel, but at present that opportunity seems slim, perhaps not at all."

Later on June 16, 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 paragraphs 6002-6003 were made he would have no option but to make an order and grant immunity. The result was that his ruling of June 14 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 on July 11, 1977.

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

Since that date an event has occurred which has profoundly altered the situation. On July 18 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 witnesses under paragraph 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 July 11, 1977, from the Department of Justice bearing the significant heading "Re: Grand Jury Investigation of the Uranium Industry." The other letter was dated July 12, 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:

"In my judgment, the testimony of the individuals for whom orders are to be sought is necessary to the public interest. The extraordinary circumstances which led me to this conclusion include the following: (1) Those persons whose testimony is sought have refused to testify on the basis of their privilege against self-incrimination, and they are outside the personal jurisdiction of the United States courts; (2) These persons are not likely to come within the personal jurisdiction of the United States courts so long as the Department of Justice continues a sitting grand jury investigation of the international uranium industry; (3) These persons are British subjects and we have determined that it is highly unlikely that their testimony could be obtained through existing arrangements for law enforcement co-operation between the United States and the United Kingdom; (4) The Department of Justice has been largely unable to obtain information from these foreign persons about the subject matter of this investigation; (5) The testimony these persons give may well be indispensable to the work of the grand jury; and (6) The subject matter of this grand jury is of particular importance."

I draw particular attention to numbered paragraph (3) of these reasons.

Judge Merhige on July 18, 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:

"Therefore it is hereby ordered that: in accordance with the Organised Crime Control Act of 1970, 18 U.S.C. paragraph 6001 et seq., [the named witness] give testimony or provide other information in response to questions propounded pursuant to letters rogatory issued by this court and that any testimony given by [the named witness] pursuant to this order shall be subject to the immunity provisions of that Act as provided in 18 U.S.C. paragraph 6002."

Mr. Rokison submitted that any evidence given by a witness before the consular officer in London would not be given pursuant to the order of July 18 by Judge Merhige as that order could not have extra-territorial

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

effect in England on a British subject. Any evidence, he said, would be given pursuant to an order of the 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 upon 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 official as examiner and to answer questions propounded under the letters 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 antitrust 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 article 12 (b) of the Hague Convention which provides:

"The execution of a letter of request may be refused only to the extent that - ... (b) The state addressed considers that its sovereignty or security would be prejudiced thereby ..."

The exception relating to security is given statutory effect by section 3 (3) of the Act of 1975, 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

not be its duty to act upon 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, 324 per Atkin L.J.

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 letters rogatory depends upon the Act of 1975 and section 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 legislation 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 Act of 1975, or otherwise, to make orders for giving effect to requests for evidence to be used for such investigatory purposes. They do have power, under section 5 of the Act of 1975, to make orders in relation 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 the 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 paragraph 3 of the Attorney-General's letter of July 12, 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 Act of 1975 for obtaining evidence for civil proceedings for the quite different purpose of investigatory proceedings before a grand jury. That is a purpose altogether outside the Act of 1975 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 on May 26, before Judge Merhige's ruling and before the application by the Department of Justice, should be reversed.

An interesting submission was made by Mr. Rokison on a question

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Fraser of Tullybelton

that would have arisen if your Lordships had held that the witnesses have no privilege but that the R.T.Z. companies have privilege. In such an event the privilege of the companies could be rendered useless if its directors and officers could be compelled to give evidence incriminating the company. Mr. Rokison 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 October 28, 1976, made by Master Creightmore so far as it relates to production of documents by the R.T.Z. companies. If that course does not commend itself to your Lordships, I would agree with the order proposed by my noble and learned friend on the Woolsack.

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 October 28, 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 schedule 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 (Burchard v. Macfarlane, Ex parte Tindall[1891] 2 Q.B. 241 and Radio Corporation of America v. Rauland Corporation[1956] 1 Q.B. 618). Thus it was not open to the court, in view of the terms of section 2 (3) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, to make an order allowing this to be done. Further, section 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 schedule 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 schedule 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 R.T.Z. 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Keith of Kinkel

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 R.T.Z. companies.

The answer to this question depends, in my opinion, upon 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 section 2 of the Act of 1975, having regard in particular to subsections (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 Act of 1975. 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. 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 Act of 1859 a somewhat narrow view was taken by the English courts in connection with the enforcement in England of a Scottish commission and diligence for the recovery of documents. (See Burchard v. Macfarlane[1891] 2 Q.B. 241.) 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

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A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Keith of Kinkel

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 Act of 1975 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 Act of 1975 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 schedule 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 section 2 (4) of the Act of 1975 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 upon the question of privilege against self-incrimination arising under section 3 (1) of the Act of 1975, or upon 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 R.T.Z. companies and the

[1978]		655
A.C.	In re Westinghouse Uranium Contract (H.L.(E.))	Lord Keith of Kinkel

individual appellants should be allowed, that the order giving effect to the letters rogatory should be discharged, and that the appeals of Westinghouse should be dismissed.

Appeals allowed.

Cross-appeals dismissed.

Solicitors: Linklaters & Paines; Freshfields; Treasury Solicitor.

F. C.