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1. By an Order made ex parte by me on 1 February 1999 on the application of Sabretech Inc (hereinafter called "the Applicant") I ordered, pursuant to the provisions of Section 1 of the Foreign Tribunals Evidence Act 1856, that Raymond Kazmaierczak (or other appropriate person) the records custodian of Shannon Aerospace Limited do appear before an Examiner to be examined on oath or affirmation on certain matters set forth in Exhibit "A" attached to a letter of request issued by Edward B Davis, Chief United States District Judge, Southern District of Florida on 22 September 1998, and further ordered that the said Raymond Kazmaierczak do produce on the same day all documents in his power or procurement referred to in the said exhibit "A".

Mr Kazmaierczak is head of the Engineering and Planning Department and Records Custodian of Shannon Aerospace Limited, and Shannon Aerospace Limited have applied to me to set aside the Order of 1 February 1999. They contend that in the circumstances the request from the United States Court does not come within section 1 of the Foreign Tribunals Evidence Act 1856.

That section reads:-

"Where, upon an application for this purpose, it is made to appear to any. Court or Judge having authority under this Act that any Court or Tribunal of competent jurisdiction in a foreign country, before which any civil or commercial matter is pending, is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction of such first mentioned Court, or of the Court to which such Judge belongs, or of such Judge, it shall be lawful for such Court or Judge to order the examination upon oath, upon interrogatories or otherwise, before any person or persons named in such Order, of such witness or witnesses accordingly; and it shall be lawful for the said Court or Judge, by the same Order, or for any such Court or Judge or any other Judge having authority under this Act, by any subsequent Order, to command the attendance of any person to be named in such Order, for the purpose of being examined, or the production of any writings or other documents to be mentioned in such Order, and to give all such directions as to the time, place, and manner of such examination, and all other matters connected therewith, as may appear reasonable and just; and any such Order may be enforced in like manner as an Order made by such Court or Judge in a cause depending in such Court or before such Judge."

It should be noted that it is a pre-condition of an Order tinder this section that the Applicant be desirous of obtaining "the testimony" of any witness, and that the Order is to be made to secure the attendance of the person for the purpose of being examined or the production of documents. This section does not authorise a Court to make an Order in the nature of an Order for Discovery of documents simpliciter.

In Eccles & Co v Louisville & Nashville Rail Road Company (1912) 1 KB 135 Vaughan Williams LJ said at page 142:-

"It is enough for the present purposes to say that it is an Act which, in the case of an action pending in the Court of a foreign country, enables that Court to request the English Court to take part in the trial of the action brought in the foreign country to this extent, namely that, on the request of the foreign Court, it empowers the English Court to make such an Order as will enable the evidence of a witness in this country to be given before a Commissioner appointed to take his evidence. This is not a power given to the Court in this country to order discovery of documents. It is a power to make an Order for the taking of evidence."

This passage was expressly approved more recently in Radio Corporation of America v Rauland Corporation and Another (1956) 1 QB 618, where Davlin J added a comment on the passage at page 645:-

"In that case all that was being considered was the discovery of documents, and it is plain that the view of the Court was that the testimony to which the Act referred could not include the discovery of documents. Equally, in my judgment, it could not include examining witnesses in order to ascertain what certain documents contained, or an Order to ask them questions as to matters arising out of or relating to the documents. The distinction is not whether what has to be obtained is documentary material or oral material. The distinction is whether it is a process by way of discovery and testimony for that purpose or whether it is testimony for the trial itself"

Assistance is also obtained from the case of American Express Warehousing Limited v Doe and Others (1967) 1 Lloyd's List Law Reports 222 in which an Order for examination of Lloyd's brokers in London was sought by an American Court, which also sought that they be ordered to produce a number of documents which were specified as being, inter alia, the "slips" and "code slips" related to each of the relevant insurances and also all memoranda, letters and other documents in it's files relating to the same insurances. Lord Denning MR said at page 225:-

"Where the documents are sufficiently specified, there is no objection to an Order being made on a person to give his testimony and to produce supporting documents as are ancillary to that testimony. That is so in the present case. This application, as I see it, is not a mere application for discovery. It is an application that the brokers should give testimony. The request to produce documents is only ancillary to their oral testimony. The documents are described as 'slips' and 'code slips' and also the correspondence in their 'files' relating to those particular insurances. That seems to me to be sufficient specification. It would satisfy a subpoena duces tecum: and satisfies a request of this kind for supporting documents".

Accordingly it appears to me that what I have to determine is whether the request in this case is in reality merely a request for discovery of documents, or whether it is a request that Mr Kazmaierczak produces the documents as ancillary to his oral testimony. To determine that it is necessary to outline briefly the nature of the action in the United States. It arises out of an air disaster in Florida which took place on 11 May 1996 and in which there were a large number of fatalities. The relatives of those killed in the crash have taken proceedings before the United States District Court, Southern District of Florida claiming damages against a number of Defendants. Among them are Valujet Airlines Inc, who were the owners and operators of the aircraft which crashed, and the Applicants, which is an aircraft maintenance company which had removed certain oxygen generators from three aircraft belonging to Valujet Inc and returned them to Miami International Airport where they were loaded on to the aircraft which crashed. The Plaintiffs in the action in the United States allege that the generators caused a fire in the cargo hold which was the cause of the crash.

Shannon Aerospace Limited had similarly removed oxygen generators from an aircraft belonging to Valujet Inc, and the evidence sought by the Applicant concerns the practices and procedures concerning the maintenance, removal, replacement and disposal of such generators. Evidence has apparently been given on deposition in the United States case on behalf of Valujet that the oxygen generators removed by Shannon Aerospace Limited were treated by them as hazardous material and disposed of as such. The Applicants state herein that they wish to obtain the evidence of Mr Kazmaierczak and all relevant documentation in relation to this matter.

Mr Kazmaierczak deposes in his Affidavit that as head of the Engineering and Planning Department in Shannon Aerospace Limited he has been involved since January 1996 in the production of job cards for aircraft maintenance work, and that he was also appointed records custodian in that month. He further deposes that he has no knowledge or recollection of having any involvement whatever in relation to the Valujet aircraft referred to by the Applicants nor with the removal, replacement, storage or disposal of the oxygen generators therein. He states that he did not carry out any work on that aircraft and did not supervise any work thereon, although he did co-sign a form approving a number of modifications to it. He therefore states that he has no oral evidence to offer in relation to the matters at issue. This testimony is not controverted.

Although the authorities I have quoted above are not binding on me, I accept that they constitute a correct interpretation of the Foreign Tribunals Evidence Act 1856. In particular, I am quite satisfied that I have no power to order discovery of documents tinder that section, nor have I any power to order the taking of evidence which in reality solely amounts to discovery of documents. Mr Kazmaierczak cannot give any evidence directly relating to the work carried out by Shannon Aerospace Limited on the Valujet aircraft concerned, as he took no part in such work. All that he can do is produce documents from the records of Shannon Aerospace Limited. This would seem to me to come clearly within the class of evidence which Devlin J excluded from the Act, namely "examining witnesses in order to ascertain what certain documents contained, or an Order to ask them questions as to matters arising out of or relating to the documents." It seems to me that this is the only testimony which could be given by Mr Kazmaierczak. While he can prove that the documents sought are in the custody of Shannon Aerospace Limited, he cannot give any evidence as to the truth of the contents of any documents, even if they do relate to work carried out on the specific aircraft. The real basis for seeking his evidence is to obtain the equivalent of discovery of documents, and this is borne out by the earlier attempts of the Applicant to take a deposition from Mr Kazmaierczak, who is not specifically named, but only as "records custodian" and which states that "the records may be mailed in lieu of attending deposition." Furthermore, the United States District Court issued a subpoena, again purely to the "records custodian" commanding him to produce and permit inspection and copying of certain documents. I think it is quite clear that what was required by the Applicant were the documents in the custody of Shannon Aerospace Limited, and not any testimony from Mr Kazmaierczak such as is referred to in section 1 of the 1856 Act.

Accordingly, I will allow this application and set aside the Order of 1 February 1999.