Another Example of the English Courts Flexing Their Muscles

British muscles

I blogged a while back on the long arm jurisdiction of the English courts. In that case, the English courts exercised jurisdiction over a foreign resident director of a foreign company which had submitted to the jurisdiction of the English courts.

I recently came across another interesting case from last year in which the extra territorial effect of an order by English court was considered in the context of something known as the “French Blocking Statute“.   The scope of this statute is astonishingly broad.   It prohibits any individuals from:

 … requesting, seeking or disclosing in writing, orally or in any other form, documents or information on an economic, commercial, industrial, financial or technical nature, with a view to establishing evidence in foreign judicial or administrative proceedings or in relation thereto.

It applies both to those requesting and those providing prohibited material, and Article 3 imposes criminal sanctions for breach being a maximum of 6 months in prison or a fine of €18,000 or €90,000 for legal entities.

When the English Court Requires Something Illegal in France…

The judgment of the Court of Appeal was delivered on three related appeals based on the facts of a claim brought by the Secretary of State for Health against Servier Laboratories Limited and others: SoS for Health v Servier Laboratories Ltd.  Servier had been ordered to provide a response to a request for further information in ongoing proceedings but objected on the basis that compliance would put it in breach of the French Statute.

The Court of Appeal reviewed the underlying authorities on the question of cross-border judicial orders before summarising the position as follows:

The domestic authorities to which we were referred show that the fact that such orders might, if complied with, expose the parties subject to them to the risk of prosecution under a foreign law provides no defence to their making.

In this case, the English Court concluded that it was inherently unlikely that the French law would be used by the French authorities to bring a prosecution against Servier (or against the other parties involved in the appeal) and therefore upheld the decision of the underlying court requiring Servier to comply.

In a robust ruling the Court spelled out the position:

Whether or not compliance with the orders of the English Court in the cases before us is illegal under French law, the English Court has jurisdiction to make them as part of the ordinary process of disclosure in several proceedings because such matters are covered by English law… In the exercise of its jurisdiction, it is legitimate for the Court to take account of the real risk of prosecution.

In other words if an English court concludes that your risk of prosecution under foreign law is slight, you will be compelled to comply with an order of the English court despite the residual risk of prosecution by a foreign State.

Whilst on one view, this is a pragmatic stance taken to ensure the smooth administration of English justice, it may give litigants cause for additional concerns.

About Francis Kean

Francis is an Executive Director in Willis Towers Watson's FINEX Global, where he specializes in insurance for Dir…
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