We have seen an increasing number of requests recently from parties in overseas litigation — primarily US proceedings—seeking information and evidence from third parties based in the United Kingdom. The latest High Court decision in Byju's Alpha Inc v OCI Ltd and others [2025] EWHC 271 (KB) (11 February 2025) demonstrates the courts' willingness to push back against overbroad or oppressive requests.
Byju’s Alpha Inc ("Alpha") brought claims in the US against several defendants arising out of transfers totalling US$ 533 million made shortly before Alpha's insolvency. The current whereabouts of these funds remain unknown. It emerged that funds were at some point transferred to OCI Limited ("OCI"), a British company.
Alpha sought assistance from the English courts under a letter of request issued by Judge Dorsey on 26 June 2024 (“the LOR”). The LOR aimed to compel the respondents — OCI and two individuals who were not parties to the US proceedings — to produce documents and provide testimony relevant to tracing the allegedly fraudulently transferred funds.
This request was initially granted by Senior Master Cook on 11 July 2024 but was subsequently challenged by the respondents. OCI contended that the LOR was oppressive and represented an illegitimate attempt to obtain pre-trial discovery material rather than evidence for trial.
The legal framework
The relevant law is the Hague Convention 1970 on the taking of evidence abroad in civil and commercial matters (the "Hague Convention") and The Evidence (Proceedings in other Jurisdictions) Act 1975 (the "1975 Act") (which gives effect to the UK's Hague Convention obligations). English law starts from the principle of comity. The 1975 Act gives the English court the power (but not a duty) to comply with LORs from judicial authorities in other jurisdictions.
In dealing with a LOR, the English court should generally exercise its discretion to make the order asked for, unless it is satisfied that the application would be regarded as frivolous, vexatious or an abuse of the process of court. In exercising its discretion, the English court should avoid second-guessing issues of relevance arising under US law but if the US court has not given consideration to the issue of relevance, the English court should do so.
As to documents, the English court will not permit general orders for disclosure. The relevant test is "individual documents separately described" (Rio Tinto Zinc v Westinghouse Electric [1978] A.C. 547 at 635), which means the identification of individual documents or a specific, clearly defined group of documents. The power is therefore a narrow one.
Furthermore, restrictions under subsections (3) and (4) of the 1975 Act preclude UK courts from making orders in the aid of pre-trial discovery.
Information vs evidence: Is this pre-trial discovery?
The judge in Byju's Alpha focused on the distinction between information and evidence. He held that while the use of the term "discovery" in the LOR was "not determinative of itself", the label was most accurate on substance. The LOR was essentially requesting information Alpha lacked, rather than evidence to prove matters at trial.
The judge noted that much of the LOR addressed points not yet pleaded in the US proceedings, as the information regarding OCI had emerged late. Crucially, the judge ruled that the purpose of the LOR was to obtain information from the respondents to enable Alpha to make litigation decisions, making it invalid under the 1975 Act.
Oppression analysis
The judge observed that while OCI was not a respondent in the US proceedings, it would likely become one if Alpha took steps to recover the money. As such, the effect of the LOR would be "to force the Respondents, under threat of committal, to provide evidence that will be used to consider and/or frame a fraud claim against them and to answer questions about the underlying facts from which such a claim will emerge but without knowing the actual claim to be brought against them".
This approach was oppressive because it would give Alpha an opportunity to obtain sworn testimony and documents from the respondents before formulating a claim against them.
Precision required
The judge further ruled that the document request was in any event impermissible, because it lacked specificity. The LOR took a class-based approach, requesting “all documents and communications” falling within certain categories.
The judge helpfully clarified that:
"What is required is a description which is sufficiently certain so that the recipient of the request knows the particular document or documents they need to bring with them. The object is to capture particular documents rather than a class of documents which gives the recipient the need to search and then consider whether any particular document falls within that class or not Requests under the 1975 Act cannot seek relevant information in general but only information which will be evidence of material facts."
He went on to say: "I suspect this is obvious but the inclusion of the expression 'including but not limited to' is something of a give-away" and ruled that the requests were impermissible.
Ultimately, whilst the judge emphasised the importance of comity, especially in international fraud cases, he set aside the Senior Master Cook’s order and refused enforcement of the LOR.
Key takeaways
This decision underscores the balance between inter-jurisdictional cooperation and protecting parties from undue litigation burdens.
It is a reminder of the high bar for such document requests:
- Class based document requests may be viewed as pre-trial discovery, which falls outside the scope of the 1975 Act.
- The purpose of a letter of request is not to help a party obtain information to inform litigation decisions, but to obtain evidence to prove specific allegations.
- Letters of request need to focus on specifically selected documents.
If you are the issuer or the subject of a letter of request and would like to discuss these matters further, please contact us.
