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Davies v Davies [2005] EWCA Civ 216

The power of a court to request a deposition from a person in another EU member state under CPR 1998, r 34.23 applies equally to the county courts as it does to the High Court.

Davies v Davies [2005] EWCA Civ 216

Court of Appeal: Potter LJ (17 February 2005)

Summary
The power of a court to request a deposition from a person in another EU member state under CPR 1998, r 34.23 applies equally to the county courts as it does to the High Court.

Background
This was a second appeal in a matter, arising out of ancillary relief proceedings, by which the applicant sought to have the ancillary relief proceedings transferred to the High Court. Before the district judge, the applicant's main contention was that the proceedings should be transferred because he wanted to issue witness summonses against persons in Poland.
The circuit judge, who heard the appeal against the district judge's refusal to transfer, confirmed the decision at first instance that CPR 1998, r 34.23, which permits a party to take a deposition from a person who is in another EU member state, applies equally in the county courts as it does in the High Court.

By this appeal, for which the applicant listed 22 separate grounds of appeal, the principal legal issue for the court was whether to affirm the circuit judge's decision that the county court had the power to make the evidential orders sought by the applicant.

Furthermore, because this was a second appeal, the test to be applied by the court as to whether to grant permission to appeal was whether (a) the appeal would raise an important point of principle or practice, or (b) there was some other compelling reason for the Court of Appeal to hear it (see CPR 1998, r 52.13(2)). The recent judgment of the Court of Appeal in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 clarified the scope of this test.

Judgment
Held, dismissing the appeal, that none of the grounds advanced crossed the threshold of the strict test for granting permission to appeal on a second appeal: no important point of principle or practice was raised; the circuit judge's conclusions as to the meaning of 'court' in r 34.21(2) were correct and well-founded; and there were no other compelling reasons for the court to hear the appeal.

Read the full text of the judgment