We previously considered how foreign courts may request assistance from the Irish courts in taking evidence from witnesses based in Ireland. Obtaining witness evidence for proceedings in EU Member States is subject to an efficient and straightforward system mandated by the EU Evidence Regulation[1]. However, since Ireland is not a party to the 1970 Hague Evidence Convention, the taking of evidence in Ireland for proceedings outside the EU must be pursued under the Foreign Tribunals Evidence Act 1856. The foreign court issues ‘letters rogatory’ or letters of request seeking the assistance of the Irish court to compel the examination of an Irish based witness. An ex parte application[2], made without notifying the other side or affected parties, is then made on foot of that letter to secure the attendance of the witness.
As is the case with all ex parte applications, an affected party may seek to set it aside. This is what happened in a recent case[3], where the witness challenged the order requiring him to give evidence. Among other grounds, he claimed there were material omissions that breached the duty of full and frank disclosure.
Background
At the request of the plaintiff, Runbuk Inc, the Irish High Court made an ex parte order to give effect to a letter of request from the US District Court in the Southern District of Florida. This required the witness, a non-party to the Florida proceedings but resident in Ireland, to be examined and produce documents for the purpose of those proceedings. That litigation related to a trademark claim brought by the plaintiff against the two defendants. The witness was the original organiser of a series of athletic events, the rights to which, including IP, he sold to Runbuk. The witness had been assisted in developing his business by the second named defendant, Mr Kelly.
Mr Kelly founded the first defendant company and they established a competing series of events. In the Florida proceedings, Runbuk claimed that the defendants had used their time, experience and links with the prior business, since acquired by Runbuk, to confuse and attract customers. Runbuk also claimed that the defendants had passed their events off as being run by the same organisers. Runbuk alleged that the witness had assisted the defendants in creating their competing business. The Florida court was satisfied to seek judicial assistance concerning the witness’ evidence regarding 11 lines of inquiry and the provision of related documents. The High Court granted the ex parte application to give effect to that request.
The challenge
The witness was not a party to the ex parte application, but he was entitled to apply to set the order aside, and he did so. He argued that the request was oppressive and amounted to discovery. His main complaint, however, was that two important facts had not been disclosed to the court. One related to the failure to disclose that a stay had been imposed in the Florida proceedings. The request for assistance was dated 4 June 2026 and the affidavit grounding the application was sworn on 10 June 2026. However, on 11 June 2026, the Florida court stayed the proceedings on its own motion. The witness argued that Runbuk should have told the High Court about the stay when it made the ex parte application on 15 June 2026. The other omission related to the failure to make known to the High Court that the witness himself had brought separate proceedings against Runbuk in California. He was concerned that Runbuk was seeking to use the letter of request process to obtain a litigious advantage in the California proceedings.
Decision
Mr Justice O’Donnell reviewed the law regarding the provision of assistance to foreign courts, including the impact of material non-disclosures.[4] He also looked at case law[5] regarding ex parte applications generally. He noted that, when deciding whether to set aside ex parte relief, the court should consider:
- The significance of the undisclosed fact
- The extent to which the omission was deliberate or culpable, and
- The justice of the case as a whole.
Although he warned that “the court must be alert to ensure that the requirement [of full and frank disclosure] is adhered to”, he said that the approach should be “case and context specific”. The judge also stated that:
The court’s discretion has to be exercised carefully but not in an automatic or algorithmic manner.”
In this instance, he concluded that Runbuk should have disclosed the California proceedings and the stay of the Florida proceedings.
Regarding the California proceedings, he said the fact that the person affected is engaged in litigation elsewhere is likely relevant, especially where it involves the same underlying issues. However, Runbuk had given a reasonable explanation of the Florida proceedings and the witness’ role, as well as why the request was being made. In addition, the Florida court’s request had not itself referred to the California proceedings. The High Court therefore concluded that the non-disclosure was not motivated by bad faith or intent to mislead. In addition, the witness had been given the opportunity to explain the position before being required to give evidence. The order would therefore not be set aside for that omission.
The other non-disclosure about the stay of the Florida proceedings was the “more serious” omission. Although the applicant’s Irish lawyers were unaware of the stay, the US lawyer’s “seemingly unilateral decision that the stay was not material clearly was a serious error of judgment.” The parties disagreed about what the stay actually did. The court preferred the view that it only affected deadlines and did not cancel or suspend the Florida court’s orders.[6] Mr Justice O’Donnell decided that, in the interests of justice, this omission was not a reason to set the order aside. The witness had not been required to submit to the examination before bringing his challenge. Additionally, not only had Runbuk offered to suspend any examination until the stay was lifted, but the stay had in fact been lifted by the Florida court.
Conclusion
The decision shows that material non-disclosures in ex parte applications do not always result in successful challenges. In particular, challenges may not succeed where the omission is not deliberate and if no harm is caused to the affected party. However, applicants should not rely on these arguments to defend a challenge. Instead, anyone making an ex parte application, especially one based on a letter of request, should make sure the court is told about all important facts and any recent developments in the proceedings. A prudent applicant should always err on the side of caution and should ideally seek fresh instructions immediately before the application with regard to any recent material developments.
We advise and assist clients from the US and elsewhere on how to obtain evidence in Ireland in support of their proceedings. For more information and expert advice on issues raised by this briefing, or commercial disputes generally, contact a member of our Commercial Disputes team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] Transposed into Irish law by the EU (Evidence in Civil or Commercial Matters) Regulations 2023.
[2] One side only.
[3] Runbuk Inc v Ice Cap Adventures and David Kelly [2026] IEHC 644.
[4] In particular, Cutler v Azur Pharma [2015] IR 167 per Noonan J., where the non-disclosure involved (being the failure to refer to the ongoing discovery process in the proceedings) was not “sufficiently serious to warrant a refusal of the request.” Central to this finding was that the omission was not deliberate, the discovery process was likely assumed in any event, there was no advantage obtained, nor was there and prejudice suffered.
[5] Bambrick v Cobley [2005] IEHC 42.
[6] Including regarding the taking of evidence.