Edmar Financial Company, LLC & Ors v Colin Lloyd & Ors [2026] EWHC 925 (KB)

[2026] EWHC 925 (KB)Case No KF-2025-013253
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
IN THE MATTER OF the Evidence (Proceedings in Other Jurisdictions Act) 1975
AND IN THE MATTER OF Part II of Part 34 of the Civil Procedural Rules 1998
AND IN THE MATTER OF a commercial proceeding now before the United States District Court for the Southern District of New York, entitled as follows:
Case No. 21-cv-06598
Venue Royal Courts of Justice, Strand, London WC2A 2LLDate 13 February 2026
Before
SENIOR MASTER COOKB E T W E E N
Between
EDMAR FINANCIAL COMPANY, LLCDefendants/ApplicantsIRISH BLUE & GOLD, INC.Defendants/ApplicantsXTX MARKETS LIMITEDDefendants/ApplicantsDSQUARE TRADING LIMITEDDefendants/ApplicantsPlaintiffsDefendants/Applicantsand (1) CURRENEX, INC.Defendants/ApplicantsGOLDMAN SACHS & CO. LLCDefendants/ApplicantsHC TECHNOLOGIES, LLCDefendants/ApplicantsSTATE STREET BANK AND TRUST COMPANYDefendants/ApplicantsSTATE STREET GLOBAL MARKETS INTERNATIONAL LIMITEDDefendants/ApplicantsJOHN DOE DEFENDANTS 1-5Defendants/ApplicantsCOLIN LLOYDRespondentsCASPAR MARNEYRespondents
JASBIR DHILLION KC (instructed by Fieldfisher LLP) for ApplicantsJOSHUA FOLKARD (instructed by Quinn Emanuel Urquart and Sullivan UK LLP) for RespondentsHearing Hearing date : 27 January 2026APPROVED JUDGMENTThis Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.Digital Transcription by Marten Walsh Cherer Ltd2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTel No: 020 7067 2900. DX: 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.comSENIOR MASTER COOK:Introduction
[1]This is my judgment on the hearing of an application made on behalf of Currenex, State Street Bank, and State Street Global (“The Applicants”), pursuant to s.2 of the Evidence (Proceedings In Other Jurisdictions) Act 1975 (“1975 Act”) and CPR Part 34, for an order requiring the Respondents to produce specified documents and testimony pursuant to letters of request issued by the United States District Court for the Southern District of New York on 3 November 2025.[2]The Applicants are defendants in civil proceedings before the US District Court.[3]The Respondents are Colin Lloyd and Caspar Marney who oppose the application. On 19 November 2025 and in accordance with the usual procedure on such applications I considered the application on the papers and made an order in the form sought by the applicants. The parties have however agreed that the application should be reheard inter-partes and that my original order should be revoked.[4]The Court has considered the following evidence:(a) 3rd and 4th witness statements of John McElroy dated 7 November 2025 and 19 January 2026 filed on behalf of the Applicants;(b) Witness statements of Khaled Khatoun, Caspar Marney and Colin Lloyd all dated 7 January 2026, filed on behalf of the Respondents.[5]In his 4th Witness statement Mr Khatoun, having considered the arguments put forward on behalf of the respondents, proposes modified requests both in relation to the documents sought and the deposition evidence sought.[6]The position of the respondents remains that the letter of request should be set aside in its entirety for six principle reasons which were amplified by Mr Folkard in the course of his submissions;(a) The requests seek insufficiently particularised and merely conjectural documents;(b) They maintain requests which will return no evidence;(c) They offend English litigation privilege and confidentiality;(d) They are irrelevant;(e) They impermissibly seek to ask witnesses to state what documents are or have been in their possession, custody or power;(f) They are oppressive.[7]I should record at this point that a protective order was made in the US Proceedings on 18 October 2023, as a result of this order parts of the parties’ evidence (marked “CONFIDENTIAL” in the Hearing Bundle index) remain confidential under US law. In the circumstances I invited the parties to agree that they would:(a) file unredacted versions of the confidential material with the Court, to be included in a single hearing bundle;(b) make clear when reference to the confidential material was being referred to in the skeleton arguments; and(c) invite me to read any necessary confidential material to myself, with the Court sitting in private for short periods only if further submissions require to be made on any of the confidential material (for example, in response to any judicial questions).

The factual background

[8]It is necessary to set out the factual background to the application which I take from the witness statements of Mr McElroy and from the Letters of Request.[9]The US Proceedings involve a claim for damages for alleged breaches of US anti-trust law, fraud and US anti-racketeering law arising out of an executable streaming prices trading model called the Platform operated by Currenex. The Platform is used by institutional FX traders to execute trades in the FX markets.[10]The US Proceedings were commenced by two named Plaintiffs, Edmar and Irish. Edmar and Irish’s claims have been dismissed and the current named Plaintiffs in the US Proceedings are XTX and DSquare. All the Plaintiffs claim to have placed orders for FX transactions on the Currenex Platform between 2005 and 2015. The Plaintiffs are seeking to certify a class of Plaintiffs in the US Proceedings comprising all persons who completed a spot FX trade on one of two specified stacks on the Platform between 2005 and 2015.[11]The Plaintiffs allege that Currenex had agreements with certain users of its Platform, named as defendants to the US Proceedings, to provide them with certain Platform benefits which entitle the Plaintiffs to damages on the basis of the causes of action alleged.[12]The Defendants deny the Plaintiffs’ claim on a number of grounds, including that the claims are time barred by the applicable statute of limitation, and they oppose certification of the proposed class of Plaintiffs.[13]Velador is a company which provides consulting services in relation to financial litigation claims and seeks to find claimants for those claims. Velador presented the potential claim against Currenex to Edmar and Irish as a result of which those Plaintiffs issued the US Proceedings. Mr Lloyd is a former employee of Velador and Mr Marney is the founder of Velador.[14]On 19 September 2025, the disclosure period in the US Proceedings closed. The Plaintiffs had withheld the Velador Emails which comprised 15 emails between Mr Edwards of Irish and Edmar and Velador between August 2018 and December 2020 on the ground of attorney-client privilege. This claim of attorney-client privilege by the Plaintiffs was challenged by the Defendants. The Plaintiffs and the Defendants then exchanged full written arguments on the claim of attorney-client privilege.[15]On 3 October 2025, Judge Kaplan granted the Defendants’ motion to compel production of the Velador Emails because he found that the Plaintiffs had not established the existence of the attorney-client privilege, in particular the (assumed) fact that Velador were working on behalf of unidentified law firms during the relevant period did not demonstrate that Velador’s communications with Mr Edwards of Edmar and Irish were made for the purpose of enabling any of those law firms to provide legal advice to their clients or prospective clients.[16]On 7 October 2025, the Velador Emails were produced to the Defendants. The Velador Emails demonstrated that Mr Edwards knew of Edmar and Irish’s claims in the US Proceedings more than two years before the US Complaint was filed. As a result, on 27 October 2025, Judge Kaplan granted the Plaintiffs' motion to dismiss Edmar’s and Irish’s claims in the US Proceedings with prejudice.[17]On 28 October 2025, the Defendants applied to Judge Kaplan for permission to issue the Letters of Request seeking the testimony from and production of specified documents by Mr Lloyd and Mr Marney. This application was supported by the Defendants’ Memorandum of Law which made detailed arguments in support of the issuance of the Letters of Request, including why the requested documents and testimony sought were relevant to the Defendants’ limitation defence in the US Proceedings in reliance on the Velador Emails. This application was also supported by the Declaration of the Applicants’ Leading Counsel, Jasbir Dhillon KC, which set out the requirements of the 1975 Act, including the requirement that the English Court will only permit deposition testimony and require the production of documents which are relevant to the issues for trial.[18]On 3 November 2025, Judge Kaplan granted the Defendants’ application and issued the Letters of Request in respect of Mr Lloyd and Mr Marney addressed to this Court.[19]After approval of the Letters of Request by Judge Kaplan, the Plaintiffs objected to them and on 4 November 2025 filed a Memorandum of Law in opposition to the Defendants’ application for the Letters of Request (which Judge Kaplan treated as a motion for reconsideration). The grounds of the Plaintiffs’ objection to the issue of the Letters of Request included:(1) they sought irrelevant information because Velador’s knowledge was irrelevant to the limitation defence; and(2) the depositions and documents sought would invade attorney-client privilege and work product privilege. The Plaintiffs’ objections to the Letters of Request were supported by a declaration of Mr Marney and Mr Lloyd, neither of which addressed whether Mr Marney and Mr Lloyd discussed the conduct at issue in the US Proceedings with members of the class of Plaintiffs which they seek certification for by the US District Court. On 7 November 2025, the Defendants filed a detailed opposition to the Plaintiffs’ motion for reconsideration of the Letters of Request.[20]On 18 November 2025, Judge Kaplan dismissed the Plaintiffs’ motion for reconsideration of the Letters of Request. In particular, Judge Kaplan concluded that:(1) In the light of the Velador Emails, it was reasonable to believe that depositions of Mr Lloyd and Mr Marney could lead to matters which could bear on the limitation defence;(2) The Plaintiffs’ arguments on attorney client privilege and work product privilege were dismissed because this was substantially the same argument that the Court rejected when ordering the disclosure of the Velador Emails; and the fact that Velador was working for identified law firms during the relevant period did not mean that Velador’s communications with unidentified FX traders were privileged or that such privileges would be for the Plaintiffs to invoke; and(3) The Plaintiffs’ argument that they had already produced all responsive communications between the Plaintiffs and Velador was rejected because (amongst other things) Velador may possess records of communications between Velador and members of the proposed Plaintiff class, i.e., other FX traders, which the named Plaintiffs could not have produced and which could pertain to class certification.[21]On 7 November 2025, the Applicants issued the present application in this Court seeking orders giving effect to the Letters of Request.

The legal principles to be applied under the 1975 Act

[22]By the time the parties had concluded their submissions there was not much disagreement between them as to the applicable legal principles to be applied, and which I now set out.[23]In dealing with a request for evidence from a foreign court, the English Court must first decide whether it has jurisdiction to make an order to give effect to the request and, secondly, if it has, whether as a matter of discretion it ought to make or refuse to make such an order.[24]The three jurisdictional requirements are set out in s.1 of the 1975 Act. They are:(i) there be an application for an order for evidence to be obtained in England and Wales;(ii) the application must be made pursuant to the request of a court exercising jurisdiction outside England and Wales; and(iii) the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.[25]There is no issue concerning jurisdiction in this case.[26]The discretion arises at s.2 of the 1975 Act. Although characterised as a discretion, it is in practice, very limited. The starting point for an English court in relation to letters of request from foreign states under the 1975 Act is that they ought to be given effect to so far as possible. This has been characterised as a duty which arises as a matter of judicial and international comity, as well as the UK’s international obligations under the Hague Convention. The best known expression of this duty is the dictum of Lord Denning MR in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [1978] AC 547 (HL) that “it is both our duty and our pleasure and our power under the Act of 1975 to assist, so far as we properly can”. Likewise in Re State of Norway’s Application [1987] QB 433 (CA) Kerr LJ held:
“The court should strive to give effect to the request of the foreign court unless it is driven to the clear conclusion that it cannot properly do so.”
[27]Insofar as discretion has a role to play, a two stage test must be applied. In First AmericanCorp v. Sheikh Zayed Al-Nahyan [1999] 1 WLR 1154 Sir Richard Scott summarised the task; the English court should:
“ask first whether the intended witnesses can reasonably be expected to have relevant evidence to give on the topics mentioned in the schedule of requested testimony and second, whether the intention underlying the formulation of these topics is an intention to obtain evidence for use at the trial or is some other investigatory, and therefore impermissible intention.”
[28]First, I deal with the question of “relevance”, the general rule is that if the letter of request states that a particular person is a necessary witness, then the English court should not embark on an investigation as to whether the requesting court is correct for the purpose of determining in advance whether the evidence is relevant and admissible. This proposition is supported by Lord Kieth in Rio Tinto Zinc where he held that: “… the court of request should not be astute to examine the issues in the action and the circumstances of the case with excessive particularity for the purpose of determining in advance whether the evidence of that person will be relevant and admissible. That is essentially a matter for the requesting court. Should it appear necessary to apply some safeguard against an excessively wide-ranging examination, that can be achieved by making the order for examination subject to a suitably worded limitation”.[29]This principle is subject to one caveat. If the requesting court has not considered questions of relevance and it is clear that the evidence is not relevant, then the English court may go on to consider relevance. The existence of this caveat is derived from the observations of Julian Knowles J in Atlantica Holdings Inc v. Sovereign Wealth Fund Samruk-Kazyna JSC [2019] EWHC 319 (QB) at [79] and Green J in CH (Ireland) Inc v. Credit Suisse Canada [2004] EWHC 626 (QB) at [15].[30]I then turn to the second stage, the intention to use the evidence at trial. A distinction is typically drawn between “evidence” and “information” which may lead to a line of inquiry which would disclose evidence. It is the search for material in the hope of being able to raise allegations of fact, as opposed to the elicitation of evidence to support allegations of fact”. Thus, a letter of request cannot be used to obtain information which is to assist in the selection of facts to form the basis of a claim. Where such information (as opposed to evidence) is sought, the request may be characterised as ‘fishing’, see Re State of Norway at p 428.[31]However, a letter of request cannot be characterised as such a ‘fishing expedition’, where there is good reason to believe that the intended witness may have some relevant evidence to give on topics relevant to issues in the action. In First AmericanCorp Sir Richard Scott VC held:
“[I]f there is good reason to believe that the intended witness has knowledge of matters in issue at the trial so as to be likely to be able to give evidence relevant to those issues, I do not understand how an application to have the intended witness orally examined can be described as ‘fishing.’ It cannot be necessary that it be known in advance what answers to the questions the witness can give. Nor can it be necessary that the answers will be determinative of one or other of the issues in the action … if there is sufficient ground for believing that an intended witness may have relevant evidence to give on topics which are relevant to the issues in the action, a letter of request seeking an order for the oral examination of the witness on those topics cannot be denied on the ground of fishing.”
[32]In my judgment it is preferable for the court to conduct its appraisal, not by reference to ‘fishing’, but asking a slightly different question: whether the intention is to obtain the witness’ evidence for use at trial and there is reason to believe that he has knowledge of matters relevant to issues at trial.[33]Finally, where the scope of examination is broader than would be permitted for the purpose of taking evidence in civil proceedings in England, the court may simply make such examination subject to terms that: “the examination of witnesses shall be for the purpose only of eliciting and recording testimony appropriate to be given at trial” (the so-called ‘Golden Eagle’ restriction, see Golden Eagle Refinery v. Associated International Insurance (unrep, 19 February 1988, ‘Golden Eagle’) at transcript, p9 per Buxton LJ.[34]I now turn to two final matters. First, there is no doubt that this court retains a discretion to decline to give effect to a letter of request on the grounds that doing so would be oppressive to the person or persons affected by it and, in particular, the requested court should not order an examination where it would be oppressive to the proposed witness. In this regard, “[t]he court must hold a fair balance between the interests of the requesting court and the interests of the witness”, see, United States of America v. Philip Morris Inc (British American Tobacco (Investments) Ltd intervening) [2004] EWCA Civ 330, [2004] 1 CLC 811 at [17].[35]Second, in relation to identification of documents. Section 2(4) of the 1975 Act expressly states that what is required are particular documents specified in the order’. It has been said that this test is demanding. In Rio Tinto Zinc Lord Wilberforce stated at p244:
“These provisions, and especially the words “particular documents specified in the order” (replacing “documents to be mentioned in the order” in the [Foreign Tribunals Evidence Act 1856]) together with the expressed duty of the English court to decide that the documents are or are likely to be in the possession, custody or power of the person called on to produce, show in my opinion that a strict attitude is to be taken by English courts in giving effect to foreign requests for the production of documents by non-party witnesses.”
[36]Taken at face value it may be thought that each and every document must be individually identified and described. But in my judgment that is to overstate the case. It is clear from the authorities that if total particularity is not possible then a compendious approach may be permitted, provided that what is contained in the compendious description is quite clear, see for example the remarks of Lord Fraser in Re Asbestos Insurance Cases [1985] 1 WLR 33 1,337:
“an order for production of the respondents’ “monthly bank statements for the year 1984 relating to his current account” with a named bank would satisfy the requirements of the paragraph, provided that the evidence showed that regular monthly statements had been sent to the respondent during the year and were likely to be still in his possession. But a general request for “all the respondent’s bank statements for 1984” would in my view refer to a class of documents and would not be admissible”
[37]Precisely how documents may be compendiously and yet individually described will depend upon the facts of a particular case. In Tajik Aluminium Plant v Hydro Aluminium AS [2005] EWCA Civ 1218 Moore-Bick LJ gave this guidance:
“ideally each document should be individually identified, but I do not think it is necessary to go that far in every case ... It is necessary to identify the documents to be produced with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do. In my view that is the test that should be applied ... It is unlikely to be met if the documents are described simply by reference to a particular transaction or event which is itself described in broad terms, although in cases where the transaction is self-contained and sufficiently well-defined that might be satisfactory. In general I think that doubts about the adequacy of the description should be resolved in favour of the witness.”
[38]The ideal course is for the court of request to issue an order limited to those documents the production of which, in its judgment, ought properly to be enforced. If it were otherwise, it would presumably be open to applicant to obtain from the requesting court fresh letters limited to the particular documents specified and come back for an order giving effect to them. This would involve considerable delay, and the end result would be the same as if the court of request had itself cut down the scope of the original letters rogatory. This has been called the “the blue pencil rule”. However this does not mean that, where the English court is minded to vary the terms of the evidence sought by a foreign court by way of letter of request, the English court is limited to making deletions. It has been made clear by Lord Keith in Rio Tinto Zinc and Cockerill J (as she then was) in Mudan v. Allergan Inc [2018] EWHC 307 (QB) that this approach brings the line to be adopted in relation to documents much closer to that applied for oral evidence and harmonises the approach more closely with CPR, r.31.17 and makes good sense since an amendment to recast a category may reduce the burden on a witness.

Discussion and Decisions

[39]In the interests of time I do not intend to set out the parties submissions at length, they have been set out with admirable clarity in the skeleton arguments prepared by Mr Dhillon KC and Mr Folkard.[40]The Letters of Request seek the depositions of Mr Lloyd and Mr Marney on the topics described in Appendix 1, 2 and 3 to the draft Order and production of documents by Mr Lloyd and Mr Marney as described in Appendix 1 to the draft Order and accompanying the Application. In light of Mr Lloyd’s evidence that the requested documents are not in his control (because he has no access to his Velador email account), and having confirmed that he has searched for but does not have the requested documents, the Applicants confirmed to me that they no longer pursue any documents from Mr Lloyd.[41]As I noted above, the Applicants have substantially narrowed the scope of the documents sought from Mr Marney to those described in McElroy 4 at para. 62.1 and the topics for the deposition Mr Marney to those described in McElroy 4 at para. 67.1.[42]It is clear to me and I accept the evidence establishes that Judge Kaplan stated in the Letters of Request (on the basis of the evidence before him) that he considered the evidence sought “is directly relevant to the claims and defences in the Action” and Mr Lloyd and Mr Marney “ha[ve] been identified as likely to have information that bear on the issues in dispute”. It is also clear from the evidence that after full argument and evidence from the Plaintiffs on their motion to reconsider the Letters of Request, Judge Kaplan concluded that the requested documents and deposition topics were relevant because they ask only about the nature and origins of the potential claims Mr Lloyd and Mr Marney presented at least two years before the US Proceedings were commenced to Edmar and Irish and “other FX traders that are members of the putative class”.[43]I also have in mind that Judge Kaplan was mindful of approach of the English Court when granting the Letters of Request as a result of the Declaration of the Applicants’ Leading Counsel before him. Judge Kaplan clearly took time to consider carefully the issues in the US Proceedings, the documents and oral evidence sought and the evidence and argument on behalf of the Plaintiffs before issuing the Letters of Request and subsequently dismissing the Plaintiffs’ motion for reconsideration. I accept Mr Dhillon KC’s submission that this was no mere rubber-stamping exercise by the US District Court and it was best placed to determine the issue of relevance to the US Proceedings.[44]In the circumstances and now that the documents and deposition testimony have been substantially narrowed in scope from that sought in the original Letters of Request, I am satisfied for the purposes of s.2(3) of the 1975 Act that the Applicants are not seeking disclosure which is wider than that to which they would be entitled to in English proceedings. I reject any suggestion that this is a “Fishing exercise”. The Letters of request make it clear that the evidence is sought for “use at trial” and is “directly relevant to the claims and defenses in the Action.”[45]Alternatively, if I were to be wrong and the Respondents could establish that the US District Court plainly did not consider relevance, I cannot possibly conclude on the evidence before me that it is clear, on a “broad examination”, that the documents and oral evidence sought are not relevant to the US Proceedings. I accept that the is likely to be relevant to the Defendants’ limitation defence in the US Proceedings, as Judge Kaplan found. Importantly, I accept Mr Dhillon KC’s submission the Defendants’ limitation defence is not confined to showing that any named Plaintiffs became aware of the conduct in issue more than two years before the commencement of the US Proceedings. The limitation issue also extends to the issue of the relevant knowledge of all potential members of the class of FX traders that the Plaintiffs have asked Judge Kaplan to certify as the class of Plaintiffs. The Respondents’ communications about the subject matter of the US Proceedings with any FX trader who traded on the Currenex Platform within the relevant time period will be highly relevant to the Defendants’ limitation defence to any such FX traders’ claim.[46]Further I accept, as Judge Kaplan found, the evidence sought will likely be relevant to whether the Plaintiffs’ motion to certify the class of Plaintiffs in the US Proceedings will be granted because evidence of outreach by Velador to members of the putative class of plaintiffs would support the Defendants’ position that an individual factual assessment for each member of the potential class is required to determine whether their claim was time barred and that it is relevant to whether class certification is appropriate.[47]I also accept Mr Dhillon KC’s submission in relation to the evidence Mr Lloyd and Mr Marney that it is striking they do not deny that they communicated with FX traders (other than the named Plaintiffs), who are potential members of the plaintiff class, in relation to the subject matter of the US Proceedings. Particularly where; Velador were, at the relevant time, actively soliciting potential plaintiffs for the US Proceedings, Mr Lloyd and Marney specifically address in their evidence their dealings with XTX and DSquare, The Velador Emails demonstrate Velador’s solicitation of Irish and Edmar; and Mr Lloyd and Mr Marney do not deny (or even address) they had dealings with other FX traders in relation to their solicitation efforts for what became the US Proceedings. In the circumstances one reasonable inference is that Mr Lloyd and Marney had such communications with FX traders and those are highly relevant to the issue of limitation and class certification in the US Proceedings.[48]Mr Folkhard submitted that the requested evidence is protected by privilege under English law on the ground that it concerns communications between an expert and potential claimants in relation to potential claims where litigation is in reasonable contemplation.[49]I accept that section 3(1)(a) of the 1975 Act has the effect that the Court will not order the Respondents to give evidence that they could not be compelled to give in English civil proceedings, However, in my judgment and as submitted by Mr Dhillon KC the Respondents’ claim of English law privilege is misconceived and provides no good reason to refuse to make the orders sought.[50]Firstly, the argument that the communications between Velador and potential plaintiffs were protected by attorney-client and work product privileges under US law was advanced by the Plaintiffs on two separate occasions in the US Proceedings and were dismissed by Judge Kaplan as summarised at paragraphs 14(f)-(g) and (k)-(l) of his reasons. He found that the fact Velador was working on behalf of law firms during the relevant period did not demonstrate that Velador’s communications with the named Plaintiffs, Edmar and Irish, or unidentified FX traders were made for the purpose of enabling any of those law firms to provide legal advice to their clients or prospective clients and so those communications were not protected by attorney-client or work product privileges. He also rejected the privilege arguments advanced by the Plaintiffs on the ground that any such privilege could not be invoked by the Plaintiffs.[51]I accept the submission that the Respondents claims of privilege under English law are just as misconceived as they are under US law. There is no legal advice privilege in respect of Velador’s communications with FX traders because Velador is not a lawyer, and there is no evidence demonstrating that the FX traders were the clients of any lawyer at the time of the relevant communications, and/or that those communications were for the dominant purpose of giving or obtaining any legal advice. In the circumstances no litigation privilege can exisit because the Respondents have not demonstrated by evidence that the FX traders Velador communicated with were the clients of lawyers at the relevant time or that the dominant purpose of the communications was to seek or request legal advice, or to seek or obtain evidence or information to be used in potential litigation. Lastley, as found by Judge Kaplan any privilege, found to exist, would be for the FX traders, as clients, to invoke, and Velador would have no right to invoke that privilege, certainly in the absence of any evidence that the FX traders wanted to invoke it.[52]Finally and in the event that a witness, on being examined, claimed to be exempt from giving particular evidence in the requesting jurisdiction and that claim was not conceded the procedure provided by CPR 34.20 for the evidence to be taken separately and only released to the requesting court once the requesting court has ruled to admit the evidence would be available.[53]Confidentiality. Mr Folkhard was at some pains to point out that Mr Marney’s evidence was that Velador’s discussions with potential claimants concerning potential claims were subject to contractually binding non-disclosure agreements. He submitted, relying upon the observations of Kerr LJ in Re State of Norway at 486 G, that the obligations import a “balancing exercise” which pits assisting the foreign court against the “great weight” to be given to “the desirability of upholding the duty of confidence” in relationships such as those of banker-client; and which way the balance tilts will depend upon “the weight which is properly to be given to all the other circumstances of the case” and in the circumstances the balance tilts firmly against compelling witnesses to violate confidence.[54]I agree with Mr Dhillon KC’s observation that it is striking the Respondents did not raise this issue before Judge Kaplan when they could have done so as part of their evidence before the US District Court in support of the Plaintiffs’ opposition to the Letters of Request. The US District Court would have been best placed to balance the relevance of the evidence sought to the issues against the strength of any confidentiality concerns. In these circumstances I give little weight to the Respondents’ purported concerns as to confidentiality as they chose not to raise such concerns with Judge Kaplan despite tendering evidence to the US District Court in support of other objections they wished to make about the Letters of Request.[55]The fact that there is a contractual confidentiality agreement is in my judgment completely outweighed by the public interest and the interests of justice in disclosing relevant evidence which is limited to what is reasonably necessary for the US District Court to determine a substantial civil claim where serious allegations are made against the Defendants, including fraud. Further, I note that, clause 2.3 of the Non-Disclosure Agreement permits disclosure of any confidential information that is required by court order to be disclosed so there would appear to be no bar in any event.[56]Finally, Both the US District Court and this Court are well versed in dealing with confidential material in the context open justice and can make and have made limited orders to protect the confidential nature of material where required.[57]Particularisation of the documents. As indicated above the Applicants have addressed the concerns of the Respondent as to the width and particularity of the documents sought. Mr Marney is now requested to produce: “Notes of calls evidencing” a) “[T]he communications that Mr Marney had with DSquare between 1 January 2018 and 4 August 2019 regarding potential claims relating to allegedly undisclosed tiebreaking mechanisms on the Currenex platform” b) “[T]he communications that Mr Marney or Mr Lloyd had with FX traders that are members of the putative class in this case relating to allegedly undisclosed tiebreaking mechanisms on the Currenex platform against Currenex in the US Proceedings between 1 January 2018 and 4 August 2019 regarding potential claims relating to allegedly undisclosed tiebreaking mechanisms on Currenex platform [sic]” c) “[W]hen Mr Marney, Mr Lloyd and Velador came to learn of potential claims against Currenex relating to allegedly undisclosed tie breaking mechanisms on the Currenex platform”: a) “[T]he communications that Mr Marney had with DSquare between 1 January 2018 and 4 August 2019 regarding potential claims relating to allegedly undisclosed tiebreaking mechanisms on the Currenex platform” b) “[T]he communications that Mr Marney or Mr Lloyd had with FX traders that are members of the putative class in this case relating to allegedly undisclosed tiebreaking mechanisms on the Currenex platform against Currenex in the US Proceedings between 1 January 2018 and 4 August 2019 regarding potential claims relating to allegedly undisclosed tiebreaking mechanisms on Currenex platform [sic]” c) “[W]hen Mr Marney, Mr Lloyd and Velador came to learn of potential claims against Currenex relating to allegedly undisclosed tie breaking mechanisms on the Currenex platform”:[58]In my judgment and having regard to the circumstances the above descriptions can, in their context, leave Mr Marney with no doubt about what he must do. The narrower date range also reduces the burden on him. I therefore reject Mr Folkard’s submission that the documents have been inadequately particularised.[59]Finally, Mr Folkard submitted, in the event I were to permit the deposition of Mr Lloyd and Mr Marney, that any depositions ordered should take place with the Respondents’ Counsel present and before a High Court Judge, rather than a Court-appointed Examiner. He made the point that neither Mr Marney nor Mr Lloyd are legally qualified and a Court appointed Examiner has very limited powers to protect a witness and can only opine on privilege issues. This proposal, he suggested would allow the policing of questions to ensure, in particular, the protection of any third-party privilege or confidentiality, it would also prevent wasted time and costs in the event the deposition has to be paused for matters to be determined by the High Court and then referred back for further examination.[60]Given my conclusion on the privilege argument above, I can see no real likelihood of such issues arising in the course of the examination. The appointment of a High Court Judge to conduct such an examination is an exceptional step which would not be justified in the circumstances of this case. The witnesses interests will be adequately protected by the fact that their counsel will attend the examination and will be able to make submissions to the Court Examiner in accordance with CPR 34.20.[61]In the circumstances, I will make the order in the form now sought by the Applicant.