The decision confirms that material non-disclosure of facts at the ex parte stage, even where “more serious”, is not fatal to an application. Instead, the Court will exercise its discretion carefully, in a manner conditioned by the overall context of the non-disclosure.

Key takeaways

• Applicants seeking Letters Rogatory should ensure all material facts and procedural developments are disclosed when making ex parte applications
• Challenges based on non-disclosure may fail where omissions were not deliberate and no prejudice resulted to the affected party
• Witnesses subject to Letters Rogatory requests can seek to set aside orders before any examination takes place
• Courts are unlikely to reject Letters Rogatory requests solely because they involve document production or are alleged to be oppressive without clear supporting evidence

What is a Letters Rogatory procedure?

Letters Rogatory is the procedure by which an Irish court can make an order giving effect to a foreign court’s request for judicial assistance in obtaining evidence, typically testimony or documents from a witness located in Ireland, for use in proceedings abroad. It applies only where the requesting court sits outside the European Union (where the EU Evidence Regulation applies).¹ Typically, a foreign court makes its request for judicial assistance further to an application by a party to a case being heard by that court, and that party then applies to the Irish courts seeking an order giving effect to the request. The application is made on an ex parte basis, meaning the party against whom relief is sought is not present or represented at that initial hearing.

Because the order is made without the affected witness being heard, the witness may subsequently apply to the court to have the order set aside, as occurred in these proceedings. This safeguard is reinforced by an ongoing duty on the applicant to make full and frank disclosure of all material matters when making the ex parte application.

Background to the proceedings

In June 2026, the High Court made an ex parte order on the application of Runbuk Inc (“Runbuk”) giving effect to Letters Rogatory issued by the US District Court for the Southern District of Florida. The order required the witness, a non-party residing in Ireland, to be examined and to produce documents for use in trademark proceedings in Florida, United States between Runbuk and the defendants, Ice Cap Adventures and Mr David Kelly.

The witness was the original organiser of the World Marathon Challenge (“WMC”), to which Runbuk subsequently obtained the rights. In the Florida proceedings, Runbuk alleges that the defendants inter alia leveraged the timing of the transfer of the ownership of the WMC from the witness to Runbuk “in order to attract, divert, and confuse customers” and “to pass off” another event promoted by the defendants, known as The Great World Race, “as one organised by the same organisers as the WMC.” The Letters Rogatory sought the witness’ sworn testimony and supporting documents concerning the dispute. Soon after the Florida Court issued its request for judicial assistance to the Irish courts, it imposed an indefinite stay on the Florida proceedings. The witness also has separate, related proceedings against Runbuk pending in California which pre-date the proceedings in Florida.

Following receipt of the order of the High Court compelling him to attend for a witness deposition, the witness challenged the order to recognise the Letters Rogatory primarily on two grounds: (i) that Runbuk did not disclose the existence of the related California proceedings in its ex parte application before the Irish High Court; and (ii) that the request made by way of the Letters Rogatory was inter alia oppressive and in substance amounted to a request for the discovery of documents.

The decision

Mr Justice O’Donnell held that Runbuk should have disclosed both Mr Donovan’s related California proceedings and an intervening stay imposed by the Florida court, treating the latter omission as the “more serious” omission.

However, the Court nevertheless declined to set the ex parte High Court order aside, noting inter alia that (i) the non-disclosure was not deliberate; (ii) the witness was not required to submit to examination before he had the opportunity to challenge the order giving effect to the Letters Rogatory; (iii) the stay on the Florida proceedings had since been lifted; and (iv) Runbuk had offered to pause the examination until the stay was lifted.

The court also rejected the witness’ argument that the request was, in substance, one for discovery rather than testimony based on the facts of the case. Furthermore, the Court did not uphold his concerns that the Letters Rogatory request was oppressive.

Conclusion

This decision offers useful guidance for challenges to an order giving effect to a request for judicial assistance. While full and frank disclosure is required of an applicant, particularly in the context of an ex parte application, this decision demonstrates that the court will weigh up the context of an omission when a failure to make full and frank disclosure is identified. In particular, the Court was comforted by the fact that the relevant examination had not already taken place before the omissions became known and the witness had an opportunity to make the application to set aside.

We regularly advise and assist clients, from the US and elsewhere, on how to obtain evidence in this jurisdiction for use in foreign proceedings. If you require more information on anything discussed in this briefing, please contact a member of our Litigation, Dispute Resolution and Investigations Group.

This briefing is a general summary for information purposes only and does not constitute legal advice.

¹ Except in the case of Denmark.