Autonomy, Inc (aka HP Autonomy) & Anor v Hussain [2016] EWHC 3268 (QB) (16 December 2016)

Autonomy, Inc (aka HP Autonomy) & Anor v Hussain [2016] EWHC 3268 (QB) (16 December 2016)

The availability of the Fifth Amendment privilege against self-incrimination neutralises any oppression arising from the examination, as the witness cannot be compelled to answer incriminating questions. The assertion that the examination would be pointless is insufficient, as the witness’s intention to invoke privilege is not binding and he may choose to answer some questions. The Senior Master erred in concluding that oppression was not neutralised by the privilege and in finding a breach of Article 6 ECHR. The appeal is allowed and the order refusing the examination is set aside.

Citation
[2016] EWHC 3268 (QB)
Parties
Plaintiff: MicroTechnologies, LLC; Defendant and Plaintiff in Counterclaim/appellant: Autonomy, Inc (a/k/a HP Autonomy); Defendant and Plaintiff in Counterclaim/appellant: Autonomy Systems Limited; Non Party/respondent: Mr Sushovan Tareque Hussain
Jurisdiction
England and Wales
Judgment Date
16 December 2016
Procedural Posture
Appeal / Judgment on Appeal From Senior Master’s Order Refusing Application for Examination Under Evidence (proceedings in Other Jurisdictions) Act 1975
Outcome
Appeal allowed
Legal Topics
Letters of Request, Privilege Against Self Incrimination, Oppression in Evidence Gathering, Article 6 ECHR – Fair Trial Rights, Hague Convention on Taking of Evidence Abroad
Civil Procedure International Judicial Assistance Evidence Letters of Request Privilege Against Self Incrimination Oppression in Evidence Gathering Article 6 ECHR – Fair Trial Rights Hague Convention on Taking of Evidence Abroad

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Parties

MicroTechnologies, LLC

Plaintiff

Autonomy, Inc (a/k/a HP Autonomy)

Defendant and Plaintiff in Counterclaim/appellant

Autonomy Systems Limited

Defendant and Plaintiff in Counterclaim/appellant

Mr Sushovan Tareque Hussain

Non Party/respondent

Procedural Posture

Appeal / Judgment on Appeal From Senior Master’s Order Refusing Application for Examination Under Evidence (proceedings in Other Jurisdictions) Act 1975

Legal Issues

  1. 1 Whether the English court should give effect to a US court's letter of request for examination of a witness under the Evidence (Proceedings in Other Jurisdictions) Act 1975
  2. 2 Whether requiring the examination would be oppressive to the witness given parallel civil proceedings and potential criminal exposure
  3. 3 Whether the privilege against self-incrimination (Fifth Amendment) neutralises any oppression

Ratio Decidendi

The availability of the Fifth Amendment privilege against self-incrimination neutralises any oppression arising from the examination, as the witness cannot be compelled to answer incriminating questions. The assertion that the examination would be pointless is insufficient, as the witness’s intention to invoke privilege is not binding and he may choose to answer some questions. The Senior Master erred in concluding that oppression was not neutralised by the privilege and in finding a breach of Article 6 ECHR. The appeal is allowed and the order refusing the examination is set aside.

Court Disposition

Appeal allowed

Orders

  • Order of the Senior Master refusing the application for examination set aside
  • Application for examination of Mr Hussain pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975 granted