Background and initial considerations
The Hague Evidence Convention has 62 signatories and was incorporated into law by the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the Act). The Act sets out a procedure that begins with a Letter of Request, which is a request by a court in one jurisdiction to a court in another jurisdiction to order the taking of evidence and transmit that evidence to the requesting court for use in judicial proceedings.
A practical tip is to consider whether the witness provider would be willing to cooperate voluntarily. If a witness is willing to give evidence in support of US proceedings, there is generally no need to involve the English courts. Local lawyers can make all the necessary arrangements to obtain the evidence and ensure that it is admissible in the US Court. Of course, this is subject to whether there is a risk that the evidence provider is likely to evade service if put on notice.
Letters of Request
English courts will only have jurisdiction to order the examination of the witness if the application is made pursuant to a request from the US court. The English courts then have the power, not the duty, to comply with the request. To this end, it is vital that the Letter of Request is suitably drafted to ensure that the English court is willing to grant the request.
In particular, the Letter of Request must comply with the requirements set out in the Civil Procedure Rules (CPR) and incorporate guidance from the Treasury Solicitor. In brief, the Letter of Request should set out:
- the name and address of the witness
- a statement of the relevant issues
- a list of questions, the subject matter of questions or any documents required to be given as evidence; and
- a draft order (see below).
If, as we would advise, local solicitors are instructed as agents in England and Wales, the Letter of Request should also contain those solicitor's details.
The order – what can it contain?
The Act makes clear that, on receipt of a Letter of Request from a US court, the English court may grant such order as it sees fit to give effect to the request. The potential orders the English court can make include:
- an examination of witness(es)
- the production of document(s)
- inspection, preservation and/or custody of property
- taking of samples from the property; and
- medical examination (e.g. blood samples).
Procedure – obtaining the evidence
Where the English court is satisfied by the Letter of Request, it is likely to grant an order for the witness to be examined before any fit and proper person nominated by the person applying for the order, an examiner of the court, or any other suitable person. In practice, the court will normally appoint a practicing lawyer to act as the examiner of the witness, who can be compelled to attend by the English courts. The examination must comply with the CPR, but can, if required, take effect much like a deposition, which is often the preferred method used in US proceedings.
Having taken the evidence, the examiner will then send it to the appropriate representative of the English courts, who will give a certificate with the seal of the English senior courts for use out of the jurisdiction. It can then be passed back to the US court for use in the ongoing proceedings.
The Act places a number of restrictions that have developed into problem areas for overseas litigants. Examples include the following:
- Applicant has a right to vary the order: the CPR allow the evidence provider to make an application to vary or discharge the order granted by the English court. Local solicitors will be able to advise on and defend such applications.
- Fishing expeditions: the Act is clear that a Letter of Request cannot be wide-ranging or investigatory in nature. This means that there must be a clear reason for requiring such evidence in accordance with the CPR. The rules in the CPR are often much more restrictive than those of the requesting court, this is particularly the case when an application is received from the US. Therefore, the party making the application to the US court must ensure that the drafting is sufficiently clear so as to demonstrate to the English court that the relevant information held by the evidence provider is material to the issues of proceeding.
- Privilege: the Act provides that the laws of privilege from both the US and England and Wales apply to protect the party giving evidence. Privilege is a complex and nuanced are of law, it requires careful consideration when putting together the Letter of Request. If, say, the US applicant requests evidence that is not privileged by US law but is by English law, the evidence provider is able to have the request refused on the grounds of privilege. If this issue is not considered properly, it is likely to cause severe delays to proceedings. Indeed, if the evidence provider claims the information is privileged, the English court is likely to order a further hearing allowing the evidence provider to raise specific objections.
- Where your witness provider is a company incorporated in England and Wales: case law indicates that a company cannot give witness evidence. However, a director is able to produce documents where specified in the Letter of Request. The Letter of Request therefore must clearly identify the evidence provider, alongside their authority to give evidence.
For further advice, and for details surrounding obtaining evidence in the UK from other jurisdictions, please contact Daden Hunt or another member of the Litigation and Dispute Resolution Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2022.