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Published 12 April 2019
The recent case of Aureus Currency Fund and Credit Suisse Group AG v Mitesh Parikh provides a useful guide as to how the English court is approaching Letters of Request from foreign courts.Aureus applied for the examination of Mr Parikh in England and Wales as part of its ongoing US class action against a number of banks in respect of alleged FOREX rigging. Of 16 banks which Aureus was suing, 15 had settled. Credit Suisse was the lone holdout. Mr Parikh is a former Goldman Sachs banker, and Aureus had already settled with this bank.Mr Parikh challenged the Letter of Request application on two main grounds: (i) the topics were so broad that they constituted discovery rather than trial evidence, meaning the English court should disallow the whole Letter as an impermissible ‘fishing expedition’, and (ii) the Letter was oppressive. Mr Parikh argued various grounds of oppression, but principally he referred to ongoing investigations that could expose him personally to a real risk of criminal liability. However, the US law of privilege would apply to any examination of Mr Parikh, in addition to English law. Therefore Mr Parikh could always ‘plead the 5th’ and rely on the right against self-incrimination in the 5th Amendment to the US Constitution. Mr Parikh suggested that a regulator or court might draw an adverse inference from his sheltering behind the 5th Amendment. Mr Parikh’s arguments were not successful. The English court’s reasoning sheds some light on how it is treating Letters of Request in what is a discrete, but developing, jurisdiction.
This decision demonstrates that the English court will generally take a pragmatic approach and, subject to jurisdictional thresholds being met, will give effect to foreign Letters of Request as far as possible. It offers insight to the main areas where an application may be challenged, and highlights the importance of tightly drafting the issues to be put to witnesses to minimise the risk that the request will be deemed oppressive.
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