Summary

A decision not to order the issue of a letter of request under CPR r.34.13 was fundamentally flawed because without the letter of request the claimant would be denied the opportunity of relying on crucial evidence and would be denied justice.

Facts

The defendant (D) appealed against the refusal of an order for the issue of a letter of request under CPR r.34.13. D and the claimant (B), mother and daughter respectively, had owned a number of properties in the UK. Their relationship deteriorated and land transfers were executed in India that purported to transfer title of the properties to D. B disputed the authenticity of the transfers and alleged that her signature was forged. Two handwriting experts concluded that there was a likelihood that B's alleged signature was a forgery. A lawyer in India had allegedly witnessed the transfers but she was reluctant to give evidence on B's behalf. B applied for an order for the issue of a letter of request to the judicial authorities of India to arrange for the lawyer's evidence to be taken on the issue of authenticity. A deputy master dismissed the application on grounds that there was no evidence that the lawyer was unwilling to attend and that her evidence was not material to the central issue.

Held

The lawyer's evidence was likely to be crucial on the issue of forgery. The underlying consideration in the master's decision was fundamentally wrong. The most important principle that the court must apply when deciding how to exercise its discretion under CPR r.34.13 was the principle of achieving justice. To deny B the opportunity of relying on crucial evidence would deny B justice. Further there was evidence to indicate that the lawyer was unwilling to give evidence.

Appeal allowed.