Guide to obtaining evidence in England and Wales for use in foreign proceedings

Requests of foreign courts to obtain evidence for use in civil proceedings being conducted in another jurisdiction from persons or corporate entities who are within the jurisdiction of the courts of England and Wales

Introduction

It is possible under English Law for an application to be made to obtain evidence or documents from an individual or a corporate entity present or resident in England and Wales for the purposes of civil proceedings in another jurisdiction, including the State and Federal courts of the United States of America.

Whilst this Guide addresses only the position of the High Court of England and Wales (“the English Court”), very similar provisions apply in respect of the courts of Scotland and Northern Ireland.

Purpose and subject matter of this guide

This Guide is intended to assist foreign lawyers and their clients involved in civil proceedings being conducted in their local courts where evidence is required from a witness, be that an individual or a corporate entity, present or resident within the jurisdiction of the English Court.

Special reference will be made as appropriate to the position in respect of civil proceedings being conducted in the State and Federal courts of the United States of America.

This Guide may also assist foreign lawyers and their clients who are present or resident within the jurisdiction of the English Court and who are requested or required to provide evidence in respect of civil proceedings being conducted in a foreign forum.

The Co-operative witness

If the witness concerned is prepared to co-operate voluntarily in giving evidence then in that event it will simply be necessary for agreement to be reached between the witness and the lawyers for the parties to the civil proceedings as to when and where the evidence taking will take place. Certain other terms will also need to be agreed with the witness, including the costs and expenses of the witness. It would then be up to the foreign lawyer concerned to ensure that the procedure followed at the agreed deposition taking satisfied the requirements of the relevant foreign court.

The Uncooperative witness

What though if the individual or corporate entity is unwilling, for whatever reason, to co-operate? Can an attendance be compelled and, if so, in what circumstances and to what extent? What are the rights and entitlements of such individuals or corporate entities in this regard?

These are some of the questions which will be considered in this Guide which covers, in broad terms, a complicated subject of considerable importance to foreign lawyers, but one containing many pitfalls for the unwary and where forward planning and experience are generally invaluable to a successful outcome.

In particular, the Guide will address:-

(i) the basis and extent of the power of the English Court to compel the attendance of a witness to give evidence in civil proceedings being conducted in a foreign jurisdiction; and

(ii) the procedure to be followed in seeking the assistance of the English Court in this respect; and

(iii) the matters that the English Court will take into account in considering whether to assist a foreign court and make an order compelling the attendance of a witness to give evidence; and

(iv) certain logistical considerations to be taken into account when instructing English lawyers to seek an appropriate order from the English Court.

The Basis and Extent of the Authority of the English Court

The Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the Act”)

The basis of the authority of the English Court is to be found in the above Act. This Act governs the ability of the English Court, as well as the Courts of Scotland and Northern Ireland, to make orders to assist courts in other jurisdictions to obtain evidence required for the purposes of proceedings in such jurisdictions and gives those courts powers to issue process effective in the United Kingdom to secure the attendance of witnesses and for purposes connected to such matters, including the provision of documentary materials for use in such proceedings.

Sections 1 to 4 of the Act deal with evidence for civil proceedings, which are defined as “proceedings in any civil or commercial matter”.

Basic Criteria for Obtaining an Order

Where an application is made to the English Court for an order for evidence to be obtained in England and Wales and the Court is satisfied that:-

(1) the application is made pursuant to a request (which is defined to include any commission, order or other process) issued on behalf of or by a court or tribunal (“the requesting court”) exercising jurisdiction in any country outside England and Wales; and

(2) the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted or are contemplated before the requesting court

(3) then the court may make such provision for obtaining evidence as may appear to the court to be appropriate for the purpose of giving effect to the request, to include making an order requiring any person specified in the request to take such steps as the court considers appropriate.

The Nature of the Order

An order may, and most commonly does, order the examination of witnesses either orally or in writing, require the production of documents or the inspection, photographing, preservation, custody or detention of property.

Disclosure of Documents

Under Section 2(4)(a) of the Act, the English Court is specifically prohibited from making an order against a stranger to the civil proceedings requiring him to make general disclosure of documents or to state what documents he has or has had in his possession, custody or control relevant to the issues in the proceedings. It will only require him to produce specific documents in his possession, power or custody which are adequately particularised, i.e. individual documents separately described, and which appear to the court on the basis of the evidence presented to it likely to be in that person’s possession. General words will not suffice. The onus of proof is on the applicant.

In other words the court will not permit a “fishing expedition”. Accordingly the court will refuse to make an order where the purpose of the request appears not to be to obtain, for the purpose of proof, admissible evidence relevant to the issues at trial, but rather to obtain general disclosure where a party is seeking some documentary material which might lead to the obtaining of admissible evidence at the trial. This is so even if the procedure of the foreign court allows such a practice as does, for example, Rule 26 of the U.S. Federal Rules of Civil Procedure, and as do many of the State Courts in the United States of America.

Privilege of a Witness

The privilege of a witness is protected by the provisions of Section 3 of the Act. In brief, the witness is entitled to claim such privilege from answering questions as would be available to him or her under English law or under the applicable foreign law; for example, the privilege afforded by the Fifth Amendment to the U.S. Constitution, which is available to individuals but not to companies. By the same token, a witness cannot be required to produce documents which under English law or the relevant foreign law are privileged from production.

Subpoena

If, having been served with an order requiring his or her attendance, a witness fails or refuses to attend, the English Court will issue a subpoena to compel the attendance of a witness, who would then be liable to be committed to prison for contempt of court if he disobeyed. This is rarely necessary.

The procedure for obtaining an order

The Letter of Request

The first step for the foreign lawyer seeking to require a witness present or resident within the jurisdiction of the English Court to give evidence is to obtain a letter of request from his or her local court addressed to the English Court. There is a prescribed form under the English Court rules, though a request in any suitable form will be accepted.

Once obtained, this order needs to be forwarded by the foreign lawyer, together with all other relevant information and documentation, to an English lawyer familiar with applications of this nature to enable him or her to prepare and make the appropriate application to the English Court.

The Application

If it is necessary to seek the assistance of the English Court an application must be made to a Master of the Queen’s Bench Division of the High Court. The application is made without notice, supported by an affidavit, usually sworn by the English lawyer instructed, but often by the foreign lawyer or his client. It must exhibit the request of the requesting court pursuant to which the court is being asked to make an order and, if this is not in English, a translation.

Normally an order will be made without notice, but it is open to the court to order that the proposed witness be served with a summons for hearing at a later fixed time between the parties. (Which will inevitably delay the obtaining of an order and the deposition taking).

The witness to whom the order is addressed can make an application for the order to be set aside or varied. The witness can utilise this procedure to apply to the court if he or she is dissatisfied with the order made in any respect. This procedure is often resorted to in order to resolve disputes as to, for instance, when the evidence taking should take place, or to resolve in advance how and on what basis a witness will be compensated financially for his or her time.

The opposing party in the foreign proceedings also has standing to challenge any condition or term of the order made.

Hearing Date for Examination

It should normally be possible to obtain an order from the court within one week of the application being made. The hearing date for the examination will normally be fixed later by agreement between the applicant, the witness and the Examiner (who the court will appoint) to give the witness proper notice. It is possible to specify a date or alternative dates in the application which, if giving adequate notice to the witness, are usually adhered to unless the witness has other more pressing or existing commitments on those dates. It is usual for there to be some negotiation on dates.

Procedural Rules Generally – Civil Procedure Rules, Rule 34

The relevant court rules which have been made as to the manner in which an application for an order is to be made are found in the Civil Procedure Rules (“the Rules”), at Rule 34. This Rule gives effect to the Act and the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970; to which Convention the United Kingdom is a signatory as, amongst other countries, is the United States of America. The Act and the Rules need to be read carefully and in close conjunction. They provide a self contained code of practice to be applied.

The Act and Rules do not affect the taking of evidence pursuant to any of the bilateral civil procedure conventions which the United Kingdom has with certain foreign countries (though there are none insofar as the United States is concerned) nor, as stated, do they affect the taking of evidence for the purposes of proceedings abroad where this is voluntarily given by the person or corporate entity concerned. Clearly where evidence can be obtained voluntarily this should be the preferred and adopted route. It is only where this is not possible that the Act and Rules come into play. Knowledge of the powers of the English Court to order a witness to attend to give evidence may well assist in persuading a reluctant witness to co-operate so as to avoid the need to make an application to court.

The Examiner

An order made by the court for the examination of any person may, and usually does, order the examination to be taken before any fit and proper person nominated by the applicant, before an Examiner of the English Court or before such other qualified person as the court deem fit, usually an independent English lawyer acceptable to the court, though in theory it could be a foreign lawyer qualified in the jurisdiction of the requesting court and based in England, or based elsewhere but willing to travel to England. In that case the foreign lawyer would need to have knowledge of English procedural rules. It is for this reason that it is usual to appoint an English lawyer or have the Court appoint an Examiner from its panel.

The Examiner is entitled to and should be provided with copies of such documents in the action as are necessary to inform him of the questions in issue. The Examiner may also put questions to the witness, though this is rare.

Manner of Examination

Subject to any special directions contained in the order made by the court, the examination of the witness must be taken in the manner provided for by the Rules of the English Court (see Rules 34.9 and 34.18 in particular). This means that the witness is examined first by those who called him or her, then cross examined by those representing the other party in the proceedings and finally re-examined, if required, by the party who called the witness.

If a request from the foreign court contains a request for a particular manner of deposition taking to be employed, the English Court will generally seek to accede to that request, unless the manner proposed is too contrary to English established procedures when the English Court will not permit it. For example, the English Court would usually allow a request for the deposition taking to be taped or a video recording made, as this would be admissible in the English Court, if done outside of the court.

The Evidence which can be sought – Rules of Evidence

Whilst the evidence taking will generally be effected in the English mode, that does not necessarily mean that the evidence which can be obtained is limited to that which would be admissible under English law.

The foreign court will be afforded the fullest help by the English Court, and where the foreign court’s rules of evidence are known, effect will be given to them as far as possible. In substantial cases, it is frequently the case that the foreign lawyers involved wish to deal with the deposition taking themselves. In those circumstances, there is generally no difficulty in applying the rules of evidence of the foreign court (i.e. in U.S. proceedings the relevant rules of evidence of the State or Federal court). Where, however, an attendance in England cannot be justified in terms of costs, a suitable précis of the relevant rules of evidence to assist the English lawyer acting on their behalf is usually sufficient. If difficulties arise they can, as a last resort, be referred back to the English or U.S. Court, as appropriate, for clarification and/or a ruling – though this may necessitate an adjournment of the evidence taking.

Generally, the English Court will allow questions that would shed any light on the issues in the proceedings.

Legal Representation of a Witness

A witness can be legally represented but must answer questions without the intervention of legal advisers, unless the Examiner determines that the witness is not capable of an informed judgment when the Examiner may allow the independent legal adviser to object and formulate the grounds of objection to the question put to the witness. Witness Refusing to Answer If a witness refuses to answer a question, the Examiner should note that fact in the record, stating the ground for the refusal. Where a witness refuses to answer a question he is obliged to answer, a certificate of his refusal, signed by the Examiner, must be filed and an application made to the court for an order that the specific question be answered by the witness. It may take some time to get a ruling on this. In those circumstances, the examination will otherwise be completed and the evidence hearing adjourned.

A refusal to answer by a witness where time is short may mean that the matter is not ruled on before the time when the evidence is required in the foreign proceedings.

Costs and Expenses of a Witness

Any person who is required to attend at any place will be entitled to the same conduct money and payment of expenses and loss of time as if on an attendance as a witness in civil proceedings before the court making the order. This includes an entitlement to a fee to cover what the witness and his or her employers have lost in wages or salary while attending upon the evidence taking. This can include some time spent travelling. It also includes the costs of travelling, board and sustenance and, in the discretion of the court taxing officer, hotel expenses.

Form of Recording of Evidence

Whilst formally the Examiner has this obligation it is usually discharged by having a court reporter/stenographer present and this is usually arranged through the English Lawyer or direct by the foreign lawyer.

In the absence of problems, once the deposition has been concluded it is signed by the witness and transmitted by the Examiner to the court for certification. It is then transmitted to the requesting court. However, where the depositions are recorded by a court reporter, stenographer, etc. it is not uncommon, if time is short, for copies to be utilised in the foreign proceedings even before certification and transmittal by the court. It is also not necessary for the witness to sign the transcript of the deposition where a stenographer/court reporter is used, though this is prudent.

Position of Corporate Entities

A corporate entity cannot be ordered to attend for examination on oath, but can be ordered to attend and produce specified documents by its proper officer, and named individuals employed by a corporate entity can be ordered to attend.

The Considerations of the English Court

When receiving a letter request from the requesting court the English court will first consider whether it has the jurisdiction to make an order, and if satisfied that it has, whether it should exercise its discretion to make the order as asked, with conditions attaching, or to refuse it in the light of the provisions of the Act and the Rules referred to above.

Mention should be made in this context of the Protection of Trading Interests Act 1980 (“PITA”) which provides protection for persons in the UK from certain measures taken under extra territorial jurisdiction asserted by foreign countries when their effect would be to damage the trading interests of the UK or otherwise be prejudicial to its sovereignty or security.

In short, if a foreign court orders a person in the UK to provide a document or information to it the Secretary of State can prohibit compliance with that order in appropriate circumstances.

Other Logistical Considerations

For reasons which will be apparent it is always worthwhile, time permitting, for the foreign lawyer to discuss his or her requirements with any English lawyer to be instructed at the earliest opportunity so as to ensure a successful application can be made which meets all the requirements of the English court, the foreign requesting court and particularly those of the foreign lawyer and his or her client. This is best done before the letter of request is sought and obtained by the local lawyer from the requesting court.

A full Letter of Instruction to the English lawyer is of great value and it is suggested that it should, at least, do the following:

(1) provide a short précis of the civil proceedings being conducted in the foreign Court;

(2) provide a complete set of the pleadings in the action;

(3) identify the witness whose deposition is required, the witness’ address for service of any order obtained and details of the witness’ legal advisers in England, if any;

(4) provide any relevant correspondence with the witness or his or her legal advisers;

(5) provide details of the nature of the evidence to be sought from the witness together with details explaining the grounds for believing that the witness can give that evidence;

(6) provide details of the grounds for believing that the witness is within the jurisdiction of the English Court;

(7) advise at the earliest opportunity as to any deadline for the obtaining of the evidence required;

(8) advise a preferred date or dates for the proposed deposition taking;

(9) confirm whether the foreign lawyer intends to conduct the deposition taking or wishes the English lawyer to do so;

(10) provide details of the foreign lawyer representing the other party to the proceedings and, if known, their English correspondent firm or agents;

(11) advise whether a court reporter/stenographer is required to be provided by the English lawyer and if so, any particular requirements as to the required/format for the transcript.