English Court refuses to let the French hide their evidence

The Court of Appeal has refused to let English disclosure be blocked by the French Blocking Statute.

23 October 2013

The Court of Appeal has refused to let English disclosure be blocked by the French Blocking Statute. This concerns domestic French law which arguably prevents evidence (including documents) stored in France being disclosed in English proceedings.

The French law (dating from 1968) is quite odd from an English perspective, perhaps explained by the absence of a disclosure/discovery obligation in French proceedings. It appears to make it a criminal offence for evidence held in France to be taken out of the jurisdiction for the purposes of foreign proceedings. Arguably it is aimed at controlling excessive demands from US litigation being made against ‘innocent’ French parties although it is drafted much wider than that.

The prevention of evidence being exported would in principle apply both to French claimant companies and to French defendants as well as any other person or company operating in France and has led to obvious tactical use by litigants trying to limit or restrict their disclosure obligations. The issue raised its head in the Alstom v Eurostar claim in which Burges Salmon represented Eurostar, although settlement was reached before substantive judgment. It is also potentially relevant to data collection exercises (which might have to use mobile servers located in France) where a cross border dimension exists. Similar (but different) considerations apply to documents in Germany and a number of other states including some in the Middle East.

English judges, apparently to their surprise, were recently faced with applications in live English proceedings to prevent disclosure and to prevent the need to respond to a request for information based on the fact that the relevant information and documents were in France and subject to the somewhat pejoratively described ‘French Blocking Statute.’ The litigants suggested that the ‘correct’ and only way to obtain such information was through a court to court request under European Regulation 1206/2001 (which is a judicial means of seeking evidence, particularly witness evidence from individuals subject to another EU jurisdiction).

Although one first instance judge (Roth) made a request from the French court under 1206/2001 (and was told by that court that the request was unnecessary and would not be pursued) they both rejected the application and demanded answers and disclosure anyway. The Court of Appeal was asked to reconsider.

The Court of Appeal judges seemed equally unimpressed with the ‘Blocking Statute.’  In essence they confirmed that they were entitled to demand information and disclosure from the parties in front of them and that Regulation 1206/2001 did not limit their powers to do so to a cumbersome international request between courts. The chances of prosecution under the French Blocking Statute for complying with an English disclosure order were ‘highly unlikely.’

Which is the right result. Pending an appeal to the Supreme Court – points to take away:

  • Care needs to be taken in relation to evidence held in France or Germany (and certain other jurisdictions) to ensure that its capture and export is not contrary to local laws or is conducted in accordance with local procedures.
  • Nonetheless, the English courts expect disclosure to include documents held internationally and will not have much patience for apparently restrictive document retention laws elsewhere.

This legal update was written by senior associate Ian Tucker. If you would like further information, please contact David Hall.

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David Hall

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