Appeal for reposition re international exhorto C11777-2020In the trial against HUL and CMN in an attempt to nullify the transfer of the Tesoros concessions, the Court granted an appeal for reposition on May 14, in response to Ms. Horsel's request. (Won't bore you with that.) The appealed resolution initially granted the plaintiff's request to extend again for another six months the extraordinary evidentiary period granted November 3, 2023 to take evidence in Canada from the witnesses Kurt Bedford, John Ahern, Judith Downes, Don Rowlatt, Curt Bernardi and Randy Smallwood.
Both JGTF and Ms. Horsel responded to the Court with their arguments. JGTF's response in favor of granting the additional six months follows:
JGTF, attorney for the plaintiff … C 11777-2020, to this Court I respectfully state:
For the present act, I come to reply to the notification conferred by resolution of May 14, 2024, regarding the appeal for reposition filed by the defendant in Folio 119, requesting its rejection in all its parts, as I will explain below:
- The request for an extension of the deadline for the completion of the international exhorto was made by this party within the time limit. The Court rightly extended the time limit on the grounds that for a reason not attributable to this part, it could not be processed. The six-month period is a prudent period to be able to process it. The Court must consider the reality. In order to complete it, on one hand there is its processing before the Supreme Court, before which one has a passive role in its processing. Then, once the exhorto has been granted, the documents are sent to the Ministry of Foreign Affairs. The latter orders that the pieces of the proceedings be brought in properly translated by an expert on the payroll of the courts of justice. Once delivery has been completed, the payment of fees must be made. Therefore, once the file has been processed and passed through the Embassy of Canada in Chile, the file is sent to Canada. The Embassy of Chile in Canada in Ottawa instructs the Provincial Prosecutor to serve the exhorto, depending on the Province in which the witness is domiciled, where one has a passive role, and the pressure that one may exert as a part to expedite the process does no interference whatsoever. In short, the Court rightly extended the processing of the international exhorto.
- In relation to the defendant’s mention that this extension constitutes a new evidentiary period, it is erroneous, since the evidentiary period was already granted by this Court, and therefore, its grounds have already been accepted by the Court. The extension is based only on a period that allows this party to comply with this procedure. In practice, and as I pointed out in the previous paragraph, its extension is based on a reality and this party has done everything within its power and responsibility to process it in a rapid manner. It is important that the Supreme Court has not rejected the criterion of the courts of justice of compliance with the international exhorto with periods of months or more, since in practice, in the best of cases for reasons not attributable to one party, it takes 3 months just to send an exhorto abroad.
- The jurisprudence of the courts of justice for processing of international exhortos sets realistic deadlines for these proceedings. This Court can appreciate it with the order in the case C 2418-2021 of the 7th Civil Court of Santiago. As to the alleged reason for wanted to delay this process, it is totally inadmissible. The witnesses, domiciled abroad, were justified in the deposition in these proceedings, as this Court well appreciated, and the defendant forgets that the processing of the exhorto has a high economic cost for my client, who has scarce resources, so that justice can be done with respect to himself.
- The counterparty is informed, if he is not already aware, that there is currently a process in progress for an international exhorto case 4867-2024, and that at the request of the Judicial Prosecutor of the Supreme Court, the Supreme Court requested the amendment of the form of the same Supreme Court. The appeal for reposition that was pending has in no way prevented the processing of this international exhorto.