DailyGobble Inc v Jain - Cross-Border Evidence Gathering Costs

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # England and Wales High Court (King's Bench Division) Decisions | | |
| You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >>

  DailyGobble Inc v Jain & Ors [2026] EWHC 749 (KB) (30 March 2026)

URL: https://www.bailii.org/ew/cases/EWHC/KB/2026/749.html
Cite as:
[2026] EWHC 749 (KB) | | |
[New search ]

[Printable PDF version ]

[Help ]

| | | Neutral Citation Number: [2026] EWHC 749 (KB) |
| | | Case No: KF-2025-014828 |
**IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

IN THE MATTER OF AN APPLICATION UNDER CPR 34.17 FOR ORDERS UNDER THE EVIDENCE (PROCEEDINGS IN OTHER JURISDICTIONS) ACT 1975
AND IN THE MATER OF THE HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL AND COMMERCIAL MATTERS
AND IN THE MATTER OF A CIVIL PROCEEDING NOW PENDING BEFORE THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES**

| | | |
| | | 30 March 2026 |
B e f o r e :

Senior Master Cook

Between:
| | DAILYGOBBLE INC | Applicant Plaintiff in US Proceedings |
| | - and ? | |
| | (1) AMIN JAIN
(2) ALLIANCE GROUP VENTURES LLC
(3) CHIRAG PATIL
(4) DOES 1-100 | Defendants in US Proceedings |
| | - and ? | |
| | ANSHU JAIN | Respondent |

**Phillip Patterson (instructed by Collyer Bristow) for the Applicant
Peter Head (instructed by Enyo Law) for the Respondent

Hearing date: 9 March 2026**

HTML VERSION OF JUDGMENT APPROVED ____________________

Crown Copyright ©

1. This judgment was handed down by release to The National Archives on 30 March 2026 at 10.30am.
3. Senior Master Cook:
4. This hearing was listed for the court to consider two applications. First, an application by the Respondent witness ("Ms Jain") dated 6 February 2026 ("the Stay Application") for a stay of the varied Letter of Request order dated 30 January 2026 ("the Varied LoR Order"). Second, an application by the Applicant under CPR 34.10(2) dated 12 February 2026 for an order compelling Ms Jain to attend examination and produce documents ("the CPR 34.10 Application").
6. Shortly before the hearing I was informed that the parties had reached agreement on the substantive content of the applications on the basis that Ms Jain would give disclosure of documents by 18 March 2026 and attend an examination on 1 April 2026. Unfortunately, no agreement was possible in relation to the costs of the applications.
8. In the circumstances, I heard lengthy submissions from Mr Patterson and Mr Head which occupied the entire two hours that the substantive- hearing had been listed for. To say the issue was hard fought is an understatement. The Applicant maintained that it should have the costs of both applications on the indemnity basis together with the wasted costs of an examination which had been scheduled on 9 February 2026. The Respondent maintained that she should have her costs of both applications on the indemnity basis and should not be responsible for the wasted costs of the 9 February 2026 examination. Both parties maintained the conduct of the other was "outside the norm".
10. With that introduction it is necessary to look in greater detail at the background to the litigation in the United States and the events which have unfolded in this jurisdiction concerning the disclosure and evidence sought from Ms Jain.
12. In the US Proceedings the Applicant seeks damages against the US Defendants for fraudulent misrepresentation, fraudulent omissions, conversion, breach of fiduciary duties and the disgorgement of inside trading proceeds, all relating to the sale of shares in a company named Bridg by the Applicant to the Second US Defendant, Alliance Group Ventures LLC. It is alleged that shortly after the sale of the shares to Alliance, Bridg was sold to another company at a much higher valuation.
14. The Respondent is the sister of the First US Defendant, Mr Jain, who was the founder of Bridg. It is alleged that she indirectly held the shares in Brigd through her shareholding in Alliance and ultimately received a sum of around $4.6 million from the sale of Bridg which initially flowed through Mr Jain's bank accounts in the US before apparently being transferred to her or otherwise invested.
16. On 24 July 2025, Judge Randolf M. Hammock of the Superior Court of the State of California, County of Los Angeles issued a Letter of Request asking the High Court to assist in obtaining evidence from the Respondent.
18. On 8 December 2026, I made the LoR Order giving effect to the LoR. The examination was initially set to take place no later than 30 January 2026 Following an application to set aside the LoR made by the Respondent the parties agreed to vary the LoR order by way of consent order dated 30 January 2026 so that the scope of the examination was reduced and scheduled for 9 February 2026 between 14:00 and 20:00, and the scope of disclosure was reduced and was to be given by 4pm on 5 February 2026.
20. On 3 February 2026, Mr Jain applied to have the US Proceedings dismissed on the basis that it had been discovered the Applicant was not in good standing in Delaware, its State of incorporation, for failure to pay franchise taxes, a situation akin to a company being automatically struck off the register of companies.
22. On 4 February 2026 Judge Hammock declined to dismiss the US Proceedings but vacated the trial date to allow time for the Applicant to be put in good standing. In the course of that hearing he observed that a certificate of good standing or 'revival' would cure any issue with the Applicant's standing. It also seems that the Defendant's counsel informed Judge Hammock of their intention to file a motion for dismissal on the basis that the Applicant's prior void status meant that its claims were time barred under the relevant statute of limitations.
24. It would seem the Respondent's solicitor was informed of these developments overnight. Enyo Law then corresponded with the Applicant's English Counsel and the court initially requesting an extension to the 6 February 2026 to produce the documents required by paragraph 2 of the order of 30 January 2026 and at 11:26 on 5 February 2026 wrote to the Court in the following terms:
26. "We act for the Deponent Witness, Ms Jain, in the above proceedings.
27. ?Pursuant to paragraph 2 of the attached 30 January 2026 Consent Order (as amending the 8 December Letter of Request Order), Ms Jain was to provide documentary evidence to the Applicant by 4 pm today. The deposition itself is listed to occur on Monday, 9 February 2026, with a trial date was set in California for Monday, 2 March 2026.
28. Overnight, UK Counsel for the Plaintiff, Collyer Bristow LLP, and also my firm, Enyo Law LLP, have been informed by our US Counsel counterparts that a motion to dismiss the case was heard yesterday in California, arising out of to the fact that the Plaintiff Company, Daily Gobble Inc., is a void Delaware corporation and will require a Certificate of Revival. It has not been a company in good standing for a number of years and was not in good standing when the Hague Proceedings were brought.
29. Consequently, the US Court has vacated the trial date of 2 March 2026, and we understand that a Certificate of Revival is urgently being sought for the Plaintiff Company. There will also be limitation arguments, so it is not clear at this time if revival alone will cure the defect.
30. In the circumstances, we attach an short draft Order in word requesting a delay until 6pm tomorrow to produce the documentation, in the hope that we will receive clarity on the position during the Californian working day today (and if needs be ? in the first hour of their Friday working day) as to what the status of Daily Gobble Inc. is - and if the document disclosure, and also the deposition can go ahead as planned on Monday - or if it needs to be pushed back again, due to the moving parts in Delaware and California re: standing and limitation.
31. Accordingly, we may need to trouble you for another short Order during the course of tomorrow, for which we apologise in advance.
32. Collyer Bristow have endorsed this course of action, and are copied to this email, but have stated that they are unable to sign a Consent Order on behalf of a Company that currently does not exist."
33. At 15:00 on 5 February 2026 Collier Bristow provided Enyo Law with a copy of a certificate of restoration for the Applicant. Enyo Law responded that they would need to take instructions from US Counsel.
35. At 1.00pm on 6 February 2026 I sent the following response to the parties:
37. "How (would) they like to proceed Collyer Bristow are undoubtedly right. I would be prepared to make an order of the courts own motion on the basis of the correspondence I have read if that helps them. They can submit a modified form of order if they want to go down this route."
38. Enyo Law responded to the court at 13:19 on 6 February 2026:
40. "Further to the below, a Certificate of Revival to the Delaware record has now been procured by the US Plaintiff's Counsel.
41. However, US Defendants' Counsel have stated that they are submitting motions in relation to statutes of limitations, as the Plaintiff was not in good standing during the litigation and at the time the Letter of Request was submitted. We understand such motions will be determined by the US Courts during the course of the coming 1-2 months.
42. Collyer Bristow have declined this morning to consent to a stay of the Letter of Request Order whilst those motions are pending in the US, and stated that disclosure and the examination should now proceed as ordered today and Monday.
43. In light of that correspondence, my firm will be formally applying this afternoon for such a stay, for the Senior Master's attention."
44. Enyo Law then issued the Notice of Application on 6 February 2026 supported by the second witness statement of Ms Orr of the same date. Following service of the Stay Application Collier Bristow, on behalf of the Applicant responded to Enyo Law at 20:43 on 6 February 2026:
46. "Our client opposes your client's application. However, with a view to minimise further costs, we are instructed to put forward the following proposal.
47. 1. The Examination will be postponed to a date no later than 6 March 2026. This will allow sufficient time for any motions by the US Defendants to be heard by the US Court.
48. 2. Your client will produce the documents by no later than 4pm on Friday 13 February 2026.
49. 3. Your client will pay the non-refundable expenses that our client has incurred in preparing for the Examination (i.e. videographer, stenographer, any examiner fees). We estimate these to be in the region of ?5,000 ? 8,000."
50. By letter dated 7 February 2026 Enyo Law responded rejecting the offer. The letter set out the following reasons for doing so:
52. "3. In order to allow for: (i) the time frame for the US Court to consider any motions on statutes of limitations and time bar, arising out of your client being void at the time of commencement of the litigation in the US (and indeed being void at this time of the issuing of the Letter of Request); (ii) Ms Jain's now imminent trip to India, which your client has been aware of for a month now; and (iii) given that there is now absolutely no urgency in this matter, as the hearing to fix a new trial date in the US Court is listed itself for 2 March 2026; and (iv) evidence taken pursuant to the Hague Convention should be for use at trial ? we propose the following solution, in order to allow for the above enunciated practicalities:
53. > > If the US Court rejects the statute of limitation motions by the Defendants and confirms that the trial will be continuing Ms Jain is to provide document disclosure 14 days after judgment of the US Court; and
54. > > Ms Jain's deposition examination to be completed within 28 days after receipt of the document disclosure.
55. 4. Such wording would ensure that we would not need to trouble the English Court with other orders, should the motions not be determined by the US Court within the timeframes of your proposal.
56. 5. Lastly, in relation to point 3 of your email, this is rejected, for the following reasons:
57. > 5.1 this situation has arisen as a consequence of the discovery that your client was void and had not been in good standing for many years ;
58. > 5.2 it is through no fault of our client that she was therefore unable to provide her documentation on Thursday, as planned, to a company that did not exist. Indeed your own firm rightly recognised that it did not have authority to even sign a Consent Order that day before it was restored to the Delaware register;
59. > 5.3 accordingly, it was obvious, during the course of Thursday that the deposition was highly unlikely to be able to proceed on Monday, and yet your client took no action to mitigate potential losses by cancelling or postponing the bookings of the Examiner, stenographer and videographer;
60. > 5.4 furthermore, as opposed to a sensible agreement for a deferral on Friday morning your client refused to postpone and therefore put our client to the time and cost of making an application themselves to the Court on Friday afternoon, and so unnecessary expense has been incurred by our client too;
61. > 5.5 your client has now rightly (but belatedly) recognised late last night this re-fixing of dates should be possible by agreement; and
62. > 5.6 in any event, pursuant to CPR 34.14(3) and PD 34, 1.2, the costs of the Examiner are to be borne by the Applicant, which is your client.
63. 6. In all the circumstances therefore, our client strongly rejects any suggestion that she should pay any funds to your client. Your client is further reminded that Ms Jain is not a Defendant, but a respondent third-party witness in this process.
64. 7. Please find attached a draft Consent Order in the above terms for your review and signature, which we trust can now be sensibly agreed, without further unnecessary costs to either of our clients."
65. At 16:48 on 8 February 2026 Collyer Bristow filed and served the third witness statement of Mr Henry in opposition to the Stay Application and in answer to Ms Orr's second witness statement. That witness statement largely rehearsed the history I have set out and concluded with the observation that the timing of disclosure was now critical and invited the Court to direct that disclosure should be provided by 18.00 on Sunday 8 February 2026 and that the examination should commence at 18:00 UK time on Monday 9 February 2026. Finally it was submitted that if the Applicant were not to attend the Examination on Monday 9 February the Court should order the Respondent to pay the Applicant's costs and expenses of the Examination. The covering email requested an urgent hearing on the Monday morning to hearing the Respondent's Stay Application.
67. Pausing there, I simply fail to understand how Collyer Bristow expected the Court to deal with such a request, made on a Sunday. If they truly believed that the matter was urgent and that the future of the Examination depended on it they should have attended at Court first thing on the Monday morning. They did not do so.
69. Enyo Law replied to Collyer Bristow and the Court at 8:30 on 9 February:
71. "We refer to the below email sent from Collyer Bristow, late on Sunday afternoon at 16:49, requesting an urgent hearing this morning to determine our client's on-the papers Stay Application, regarding whether a deposition should proceed this afternoon/ evening.
72. We do not agree that a hearing is urgent this morning in circumstances where:
73. the Trial date in California has been vacated last week;
74. there is no new trial date fixed, (and indeed the listing appointment for that fixing is not until 2 March 2026 in the US);
75. US Defendants' Counsels informed the US Court on 4 February 2026, that they would be filing motions on statutes of limitations, further to the discovery that US Plaintiff Company was not in good standing for many years ? including at the time of commencement of the proceedings and at the time of issuing of the Letter of Request - even if the Plaintiff company has now been restored to the register in Delaware in recent days; and
76. we are informed by US Defendants' Counsel, that the US Court previously indicated that any re-fixed trial would now potentially occur between late August 2026 and early April 2027.
77. We further note that Mr Henry has failed to include in his Exhibit RAH3, the enclosure to our letter sent to them on Saturday evening, which was the attached proposed draft Consent Order (cover email with letter also attached for ease).
78. Given that post the issuing of our Stay Application on Friday afternoon, Collyer Bristow wrote to our firm on Friday evening suggesting:
79. 1. that documents by provided by 13 February 2026;
80. 2. the deposition to occur by 6 March 2026, and
81. 3. our client pay the wasted costs of today's deposition
82. we are somewhat surprised that in response to our Saturday evening letter and proposed Consent Order, whereby we counter-proposed a mechanism that mean we did not need to trouble the English Court again on timings, with:
83. 1. disclosure 14 days after the US Court's judgment on the motions on limitation (if unsuccessful);
84. 2. the deposition to follow within 28 days thereafter; and
85. 3. no costs payment
86. Collyer Bristow have chosen instead to now push late afternoon on Sunday for an urgent hearing this morning. With respect, this matter should still be able to be dealt with by inter partes?agreement.
87. In the any event, there is simply an air of unreality to the suggestion in paragraph 67 of Mr Henry's Third Witness Statement, that Ms Jain should now be giving her evidence from 18:00 today for 6 hours, when his firm were already aware (and had previously agreed to) a hard finish of 20:00, so that Ms Jain can travel home to Milton Keynes. Any such order requiring her to give evidence into the small hours of tomorrow morning for the convenience of Californian Counsel would be oppressive of the witness. (We further note a factual inaccuracy in that paragraph - California is currently 8 hours behind London, not 7 hours). Indeed, it is no parties' interests for Ms Jain's evidence to be given today in such a fashion.
88. If the Senior Master is nevertheless minded to hold?an urgent hearing online this morning, we shall of course attend, but we would sincerely hope sensible agreement on a re-scheduling is still possible between the parties."
89. To its credit, the Foreign Process Department did manage to forward me the e-mail correspondence between the parties however I was not able to deal with it until midday because of other court commitments. I responded at 16:17:
91. "I am not persuaded this matter is now urgent having regard to the fact that the Californian trial has been vacated and will now likely be heard in the period late August 2026 to early April 2027.
92. I would urge the parties to agree an appropriate order. I cannot possibly hear an urgent application of this nature until Thursday in any event."
93. Having been forwarded further e-mails from the parties I responded at 12:37 on 10 February 2026:
94. "Unless this is a consent order there should be a short hearing"
95. In the meantime, the Applicant pressed ahead with the arrangements for the Examination. They attended before the Examiner, Mr Halkerston and obtained a certificate of nonattendance from him issued under CPR 34.10.
97. On 10 February 2026, Collyer Bristow wrote to Enyo Law:
99. "We write further to your letter received on Monday at 13.49 and your letter received on Tuesday at 15.54.
100. It is disappointing that you considered it appropriate to let us know that your client was not going to attend the court ordered examination ten minutes before it was due to start. The fact that the court did not respond to your client's application did not alleviate her of the court ordered obligations. This is now the second time your client has breached a court order. As you know, the Examiner duly certified a Certificate of Failure which has been filed with the Court. These matters will be raised with the Court if necessary.
101. Our client's position has plainly been set out in the Third Witness Statement of Robin Henry. The Applicant maintains that the US Defendants' hypothetical motions (which have still not been served) are not appropriate means for staying your client's evidence.
102. Both the videographer and Examiner attended our offices on Monday. As you know their costs are non-refundable and would have been incurred in any event. Had you let us know that your client would not be attending the Examination earlier, perhaps the Examiner's travel fee and attendance could have been avoided as he may have been able to certify the Certificate of Failure remotely. However, you did not do so. Again this will be raised with the Court if necessary. Our client complied with its obligations under the court orders as did the Examiner. You would have seen Mr Halkerston's response to your Tuesday letter.
103. Our client does not agree to your draft consent order. Our client simply cannot agree to an open-ended extension/stay in circumstances where it cannot know when (or if) the US Defendants motions will be issued.
104. However with a view to avoid a further court hearing our client is willing to put forward the following offer:
105. 1. The Respondent will attending an examination by 31 of March 2026. We are instructed that this provides more than sufficient time for the US Defendants to have any motion heard.
106. 2. The Respondent will produce the documents ordered by 4pm no later than 7 days before the examination.
107. 3. The Respondent will pay the wasted expenses of Monday's examination. The stenographer and videographer's fees are USD 3,044.10. The Examiners fees are GBP ?1,655 + VAT.
108. 4. Any consent order would include a liberty to apply on 3 business days' notice in the event that any applications in the US Proceedings render the disclosure or examination obsolete.
109. If this offer is not agreed we are instructed to proceed with an application under CPR 34.10. We will be seeking all of our client's wasted costs and our legal fees on the indemnity basis."
110. Enyo Law responded the same day by return:
112. "Appropriate Order
113. 1. We refer to the first message from the Senior Master, received at 16:17 yesterday, whereby he stated:
114. > > "I am not persuaded this matter is now urgent having regard to the fact that the Californian trial has been vacated and will now likely be heard in the period late August 2026 to early April 2027.
115. > > I would urge the parties to agree an appropriate order. I cannot possibly hear an urgent application of this nature until Thursday in any event."
116. And the second message, received today at 12:37:
117. > > "Unless this is a consent order there should be a short hearing."
118. 2. In light of the above comments, we equally hope that common sense now prevails and invite your client to either: (i) sign the Consent Order as circulated on Saturday evening to avoid troubling the Senior Master unnecessarily; or (ii) meaningfully engage to find wording that would be capable of acceptance by both parties.
119. 3. With Mrs Jain shortly to be abroad until the end of the month, and the trial listing appointment in the US set for 2 March 2026, the parties now have a window of opportunity to sensibly come to an accommodation. We therefore invites you to provide any revised wording by 4pm on 12 February 2026 in the hope that we can agree a Consent Order during the course of this week without the need to have a hearing.
120. B. Certificate of failure
121. 4. We further refer to the Certificate of Failure served on our firm at 18:16 yesterday evening (the "Certificate")
122. 5. In circumstances where:
123. > 5.1 the logistical details of the examination were never finalised, (such as the online link being circulated for the parties from the US to join); and
124. > 5.2 (presumably) where Mr Halkerston did not turn up in person at your offices; nor was US Plaintiffs' Counsel online; nor was a videographer or stenographer present at your offices,
125. > then a Certificate should not have been issued
126. 6. We can only presume that Mr Halkerston was not provided with our letter of yesterday timed at 13:48 which stated that our Stay Application was extant.
127. 7. Please confirm whether, as previously requested Mr Halkerston was kept properly apprised by you that:
128. > 7.1 both the LoR order and the Consent Order in these proceedings were issued at a time when your client was not in good standing in the US (and had not been for many years), and your firm subsequently had no authority to act on its behalf in England;
129. > 7.2 Your client was not in good standing when it commenced proceedings in the US nor when the Letter of Request was issued;
130. > 7.3 Even with the urgent restoration of your client to the Registry in Delaware your client's deficiencies are to be the subject of motions in the US Court on statute of limitations and time bar, which may result in the US Proceedings being dismissed;
131. > 7.4 The Judge in the US Proceedings has vacated the trial date of the 2 March 2026 and no new trial date has been fixed;
132. > 7.5 Trial of the US Proceedings is now not expected to take place until August 2026, at the very earliest, if it proceeds at all;
133. > 7.6 Your firm agreed on 5 February 2026 that our client could not disclose documents to your client since both our firms each understood that the US Plaintiff Company was non-existent at the time. Further your firm's position that it could not sign a consent order agreeing an extension of time to do so - an approach that the Senior Master endorsed;
134. > 7.7 Ms Jain issued a Stay Application on 6 February in relation to the LoR Order (as amended by the Consent Order), which is currently pending before the Senior Master, requesting that the LoR Order be stayed pending a ruling from the US Court on the statute of limitation and time-bar motions; and
135. > 7.8 The Senior Master expressly rejected your firm's position that the matter was urgent and urged the " parties to agree an appropriate order " pursuant to his e-mail of 16:17 yesterday, as copied above.
136. 8. Given the circumstances as described in paragraphs 5-7 above, it is our experience that an experienced Examiner of the Court as appointed by the Lord Chancellor pursuant to public appointment, would have declined to issue the Certificate if requested by the Applicant.
137. 9. In any event the Certificate is deficient in that it should state whether it is issued pursuant to CPR 34.10 (1) (a) OR (b) - which this Certificate does not.
138. 10. In the circumstances any attempt to use the Certificate pursuant to CPR 34.10 (2) or (4) will be vigorously defended by our client.
139. 11. We have copied Mr Halkerston into this correspondence so he is fully appraised of the position and he can consider if he may wish to now withdraw this Certificate if any of the above information was not provided to him by your firm.
140. 12. In the meantime all our clients rights are reserved."
141. On 12 February 2026 the Applicant issued its application under CPR 34.10 (2) for an order requiring the Respondent to attend her examination and for the costs of the failed examination. The 34.10 Application stated that it was a "cross application to the Respondent's application on 6 February to stay the disclosure examination". The 34.10 Application was supported by the 4 th witness statement of Mr Henry of the same date.
143. The relevant provisions of the CPR.
144. Applications for the examination of a witness under the Evidence (Proceedings in Other Jurisdictions) Act 1975 are made in accordance with CPR 34.17. CPR 34.18 (2) provides that unless the court orders otherwise, the examination will be conducted as provided by CPR 34.9 and 34.10.
146. The starting point is that the fees and expenses due to an examiner must be paid by the party who obtained the order for examination, see CPR 34.14 (3). However, CPR 34.14 (6) makes it clear that the court retains a complete discretion over who is ultimately to bear the costs of the examination. It is important to bear in mind that when granting assistance to a foreign court for the purpose of obtaining evidence for the purpose of proceedings in that court the English Court will do so, as far as is it can and in accordance with the principles of English law, see ? Seyfang v GD Searle & Co [1973] Q.B. 148 at 151. This reflects established principles of judicial and international comity.
148. In this case the court is providing assistance to the Superior Court of the State of California, however the evidence sought by way of examination is to be deployed in litigation before that court and strictly speaking the costs of obtaining that evidence are incurred in that litigation. This seems to me to inform the usual position which is reflected in CPR 34.14 (3). In order to depart from that position, the court will primarily be looking at conduct issues but also may take into a count success or failure on associated legal issues such as the scope of the request with applying its discretion under CPR 44.2.
150. An order made by the court made for the purpose of the examination of a witness is not a witness summons requiring the witness to attend. It is an order of the court which in its ordinary course should be obeyed. In most cases the witness will be willing to attend the examination and give evidence. If a person served with such an order fails to comply CPR 34.10 provides:
152. " Enforcing attendance of witness
153. 34.10
154. (1) If a person served with an order to attend before an examiner
155. > (a) fails to attend; or
156. > (b) refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document at the examination,
157. a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.
158. (2) On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.
159. (3) An application for an order under this rule may be made without notice.
160. (4) The court may order the person against whom an order is made under this rule to pay any costs resulting from his failure or refusal."
161. Once an examiner has issued a certificate of "failure" or "refusal" the party seeking the deposition may apply to the court for an order requiring the witness to attend. As 34.10(4) makes clear such conduct on the part of a witness may amount to conduct which would justify a costs order being made against them. If the witness were to fail to comply with an order to attend examination the Court's contempt jurisdiction under CPR 81.6 would be invoked.
163. The parties' submissions
164. On behalf of the Applicant Mr Patterson submitted that costs should follow the event; its 34.10 Application has substantively succeeded and the Respondent's Stay Application is not pursued. In the circumstances it is for the Respondent to demonstrate why the usual costs order should not follow.
166. In relation to the Respondent's application to stay my order of 8 December 2025 Mr Smith-Roberts submitted that it had not been pursued and was in any event fundamentally flawed and based on a wholly mistaken premise, namely that the US Defendants would be making Motions for Judgment which would lead to the dismissal of the US Proceedings and that they had not done so.
168. Mr Patterson submitted that the Applicant's stance was entirely reasonable. He relied upon four central propositions:
170. i) At 08:14 on 6 February 2026, the Respondent's solicitor invited the Applicant to agree to a stay "until the determination of the US Court as to the validity of the action". As the Respondent was aware, the Applicant's legal team in the UK were in no position to take updated instructions in relation to the proposed stay as a result of the client being in California and asleep.
171. ii) As soon as instructions were received (late into the evening on Friday 6 February 2026), an entirely reasonable proposal was put to the Respondent which would have allowed for the orderly rescheduling of the examination and the provision of disclosure, avoiding the need for any parties to attend on 9 February 2026. The only condition attached to this proposal was that the Respondent pay the relatively modest costs thrown away as a result of the contractual commitments made to third parties necessary for the conduct of the examination.
172. iii) A further reasonable proposal was made by the Applicant on 10 February 2026, a proposal which (leaving to one side costs) is virtually indistinguishable from what came to be agreed on 5 March 2026. The Respondent was warned that a failure to accept this offer would result in an application being made for indemnity costs. The offer was rejected in correspondence which described the Applicant's conduct as "vexatious" and "oppressive".
173. iv) The Applicant accepts that an administrative issue arose in relation to its standing. However, this was entirely resolved on 4 February 2026 and the Respondent was told that it had been resolved on 5 February 2026. Thereafter, the costs arising in both the Stay Application and the 34.10 Application have been incurred solely as a result of the Respondent's own flawed decisions. The Respondent must bear those costs.
174. Accordingly, Mr Smith Roberts sought an order requiring the Respondent to pay:
176. i) The Applicant's costs of the Stay Application on the indemnity basis;
177. ii) The Applicant's costs of the 34.10 Application on the indemnity basis; and
178. iii) The costs and expenses incurred by the Applicant in respect of the examination on 9 February 2026 to which the Respondent did not attend.
179. On behalf of the Respondent Mr Head referred me to the provisions of CPR 34.10. He distilled the following questions for the Court:
181. i) Is this a case where it was necessary and appropriate for the Applicant to apply under CPR 34.10(2) for an order compelling Ms Jain to attend for examination under the threat of potential contempt proceedings if she failed to do so?
182. And;
183. ii) In all the circumstances, is this a case in which it would be appropriate for the Court to make such an order in the exercise of its discretion?
184. Mr Head suggested that the answer to both questions was a resounding "no". He submitted that this was not a case of a delinquent or non-cooperative witness who has wilfully failed to attend an examination. On the contrary, he pointed out it has been made clear that the Respondent is perfectly willing to attend and examination, for example she agreed to the varied LoR Order.
186. Mr Head submitted that the reason the Respondent did not attend on 9 February 2026 was as a result of failings on the part of the Applicant itself relating to its own corporate existence. It was this fundamental failing that gave rise to Stay Application. The consequence of the Applicant not being in good standing is that the trial date in the US Proceedings was vacated with the consequence that there was no urgency in the examination proceeding thereafter and the Defendants to the US Proceedings indicated an intention to Judge Hammock that they would file motions that would be potentially dispositive of the entire case. The Stay Application was in the circumstances entirely justified.
188. Mr Head submitted that, given the state of flux that had arisen in the previous days as a result of the Applicant's own conduct, the examination could never have been effective. He pointed out that Collyer Bristow had themselves written to the Court on the previous day seeking an urgent hearing of the Stay Application on the morning of 9 February 2026 and submitted that ploughing on regardless was not reasonable conduct. The Respondent is represented by highly experienced and reputable solicitors who have made abundantly clear that she has no objection in principle to attending and the circumstances of her non-attendance on 9 February 2026 do not in any way give rise to an inference that she is wilfully refusing to engage in the process such that she needs to be compelled to attend by way of a coercive order from the Court.
190. Mr Head submitted that the Stay Application has been superseded. He pointed that the Respondent through her lawyers had proposed a revised timetable i.e. with a deposition on 1 April 2026 and document production on 18 March 2026 which had now been agreed.
192. Accordingly, Mr Head sought an order requiring the Applicant to pay the Respondent's costs of the 34.10 Application and the Stay Application on the indemnity basis. Lastly, the Applicant should be responsible for the costs of the examiner or of the Videographer and Stenographer.
194. Decision
195. I have concluded that the Applicant should pay the costs of the 34.10 Application and the Stay Application on the standard basis. The Applicant should also bear the wasted Examiner, Videographer and Stenographer costs.
197. In my judgment the root cause of the ineffective Examination in this case was the fact that Applicant had failed to pay sums lawfully required of it and as a result became a void Delaware Corporation. As pointed out by Mr Head, the Applicant had no legal existence when the LoR was issued or when the LoR Order was made.
199. This difficulty directly resulted in the adjournment of the US trial which had been listed for 2 March 2026. It also resulted in the US Defendant informing Judge Hammock of an intention to file a motion for judgment. Faced with these developments it was entirely reasonable for the Respondent to request the postponement of the document disclosure to 6pm on 6 February 2026. It is also worthy of note that Collyer Bristow did not initially object to this course and maintained that they would not be able to sign a consent order because their client had " ceased to exist".
201. On Friday 6 March 2026 matters were clearly in a state of-flux. The time lag in communication with the USA did not assist matters. I accept that Collyer Bristow had managed to obtain a copy of the Applicant's certificate of revival at some point on 5 February 2026, however by this time the US trial had been vacated and the Respondent reasonably believed that the US Defendants might make an application challenging the US Court's jurisdiction. I reject any suggestion, that the Respondent was somehow in league with the US Defendants and is seeking to frustrate the Applicant's attempts to gather evidence as being against the weight of the evidence before me.
203. In my judgment it must have been obvious to the Applicant and Collyer Bristow by the close of business on 6 February that the Examination planned for 9 February would not be able to proceed. However the Applicant decided to file evidence and wrote to the Court seeking an urgent hearing of the Stay Application on Sunday 8 February. It must have been equally obvious to Collyer Bristow that there was very little likelihood of the Court being able to respond to this request immediately. I note that my response to the parties was not made until 16:17 on Monday 9 February, see paragraph 20 above.
205. Mr Halkerston, the Examiner, cannot be criticised. He was faced with an Order for the examination to take place at 14.00 on 9 February 2026 and the non-attendance of the witness. In the circumstances he had no option but to provide a certificate of non-attendance under CPR 34.10 (1). Whilst such a certificate must be filed with the court, it was not mandatory for the Applicant to make an application under CPR 34.10 (2). Having set out the correspondence between the parties at some length at paragraphs 22 to 24 above I can find no suggestion that the Respondent was refusing to produce documents or attend an Examination, in fact the opposite is the case, the only real issues between the parties related to the timing of the process and the fact that the Applicant was demanding the costs of the failed Examination.
207. I do not regard this as an appropriate case for costs of the Applications to be paid on the indemnity basis. In? Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 879; [2002] CP Rep 67, CA, the Court of Appeal held that the making of a costs order on the indemnity basis would be appropriate in circumstances where:
209. i) the conduct of the parties or
210. ii) other particular circumstances of the case, or both, were such as to take the situation "out of the norm" in a way which justifies an order for indemnity costs.
211. The discretion to award costs on the indemnity basis is ultimately to be exercised so as to deal with the case justly. Whilst I have held that the Applicant should have realised the Examination would be ineffective what took place was against a quickly developing set of facts occurring outside the jurisdiction. The Applicant's conduct may be criticized but it is not wholly out of the norm.
213. In the circumstances it is also appropriate that the wasted costs of the Examination should be borne by the Applicant.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWHC/KB/2026/749.html