The High Court set aside an order requiring James Greaney to give evidence in Ireland for two civil cases in Israel, finding that the Israeli courts had not requested assistance from the Irish court and that the proposed examination was oppressive ahead of an imminent arbitration hearing.
In a judgment delivered on 7 July 2017, Mr Justice Eagar set aside an order made by Mr Justice Humphreys on 15 May 2017. That earlier order had been made without notice to Mr Greaney and directed that he be examined under oath under the Foreign Tribunals Evidence Act 1856, court rules or the High Court’s inherent jurisdiction.
U. Dori Construction Limited sought Mr Greaney’s evidence for its defence in claims brought by two subcontractors in the Tel Aviv Jaffa District Court. The company said its defence relied on “back to back” clauses, under which it was not obliged to pay subcontractors unless it had received the corresponding payment from G.T.S. Power Solutions Ltd. It argued that Mr Greaney’s evidence about payments was relevant and necessary to prove that defence.
Mr Greaney, a director of G.T.S., was due to be G.T.S.’s primary witness in an International Chamber of Commerce arbitration in London scheduled for 17 to 28 July 2017. His side argued that an examination in Ireland shortly beforehand would disrupt his preparation and give U. Dori an advance cross-examination. The original order also did not specify the examination’s subject matter or the procedures to be followed.
The court said the Israeli courts had not themselves asked the Irish court to obtain the evidence. No letter rogatory or other request from an Israeli authority had been put before it. Although Israeli judges had made orders concerning Mr Greaney’s evidence, Justice Eagar said the judgment showed growing reservations in Israel about the evidence’s importance. The judgment also records that an Israeli court had identified a procedure under the 1998 International Legal Assistance Law for requesting evidence abroad.
Justice Eagar said the principle of comity would favour assistance if the Israeli courts requested it. He set aside the order because no such request had been made and because the examination would be oppressive in light of the imminent London arbitration. He noted that it could give U. Dori a significant procedural advantage in that arbitration, but said this was not the basis on which he set aside the order.
The judgment records that the court found no evidence that U. Dori had failed to disclose relevant Israeli court orders. It does not record a decision on the underlying subcontractor claims or the arbitration dispute.