Under the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”), English Courts will assist US Courts to obtain oral and documentary evidence from witnesses who are resident in England and Wales.
The Hague Convention is a multi-lateral treaty between signatory states, which provides for taking evidence in the form of a letter of request (previously referred to letters rogatory) by diplomatic channels or consular agents or commissioners. The Convention provides a unified approach to taking evidence compatible with both civil and common legal systems.
In England and Wales, the Evidence Act 1975, the Civil Procedure Rules and the Hague Convention authorise the High Court to make an order for an individual or a corporate entity resident in England and Wales to produce evidence or documents for use in foreign civil or commercial proceedings.
For a letter of request to be valid, the following conditions have to be met:
- The English Court must be satisfied that the applicable evidence is obtained for civil or commercial proceedings which have already started or are contemplated;
- The order must be for evidence which is to be obtained from within the jurisdiction (i.e. from within England and Wales); and
- The application must be made on behalf of a relevant Court (i.e. in the case of evidence for proceedings in the US, a US Court).
Additional limitations are imposed by the Evidence Act 1975.
According to the Evidence Act, the evidence in question must be relevant and for use at a relevant trial. This excludes obtaining evidence for preliminary hearings. The question of relevance is determined by the English Court and is not separately assessed by the US courts who simply rely upon the judgement of the English Court.
General Disclosure and “fishing expedition”
Requests for disclosure must be specific. General requests will be rejected. The Courts will reject applications which fail to request specific information or which amount to a “fishing expedition” aimed at obtaining evidence which is vaguely or insufficiently defined. The burden of proof is on the applicant to persuade the Court that their request is sufficiently specific to overcome this barrier.
Limitations on documents which can be produced
A Court will not compel a witness to produce evidence other than the specific documents which are specifically named in the request and which a witness has in their possession or custody. Additionally, disclosure will not be ordered if it is contrary to national security. Nor will the court order the UK government to provide documents or evidence.
Letter of Request
A letter of request (“order”) is a formal request for judicial assistance to obtain evidence from a signatory state where evidence is located to a court signatory state from which evidence is being sought intended to be used in civil or commercial proceedings.
A letter of request may be transmitted by means of diplomatic channels or consular agents. However, it is more efficient to instruct an English lawyer to contact the Courts directly.
A letter of request must comply with the formal requirements of Article 3 of the Hague Evidence Convention which require that a:
“Letter of Request shall specify:
a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;
b) the names and addresses of the parties to the proceedings and their representatives, if any;
c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;
d) the evidence to be obtained or other judicial act to be performed.”; and that
“Where appropriate, the Letter shall specify, inter alia:
e) the names and addresses of the persons to be examined;
f) the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;
g) the documents or other property, real or personal, to be inspected;
h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;
i) any special method or procedure to be followed under Article 9.”
Oral Evidence and Examination
Orders can also be made for oral evidence (also known as depositions) to be given by a witness at the hearing.
As an initial step, the English Courts will appoint an examiner for such a hearing. An examiner is someone who is considered “a fit and proper person”. In practice this will usually be a practising lawyer. The hearing will be in public or private, at the discretion of the examiner.
By default, an examiner will apply English Court procedures. It is, however, possible for a requesting Court to request that an examiner should apply different procedures (e.g. procedures under US law). Such a request will be followed unless the request is considered contrary to English law.
It is possible for questions to be put to a witness by video link where this is appropriate.
Whilst a witness will not be given legal representation at an examination, they are entitled and have the right to be represented by their own lawyer.
It is possible to specify a proposed date for a hearing on the application, provided this provides adequate notice to a witness. However, a Court is not obliged to follow such a request and in practice the date is negotiable between the parties and in most cases a hearing date for examination is set later by mutual agreement between the applicant, witness and the Court appointed examiner.
Disputing a Request
A witness can make an application for an order to be set aside or to dispute the manner, location or time where information is to be provided or the financial compensation which is to be provided to the witness. An opposing party can challenge such application and the Court will issue a ruling on the dispute.
Witness Compliance and Non-Attendance
If a witness fails to attend an initial order for examination, a certificate recording the refusal or failure is issued by the examiner.
If a witness is served with a second order requiring his/her attendance and the witness fails or refuses to attend, then the English court will issue a subpoena. The subpoena can compel the attendance of a witness, with him/her becoming liable to be committed to prison for contempt of Court if he/she disobeys.
Witnesses providing evidence are entitled to invoke privilege against disclosing documents to the Court. Such privilege may be raised under English law or under foreign law to the extent that such privilege is available in the foreign Court making the request (i.e. US law in the case of a request made via the US Courts).
There is no requirement under English law that the privilege which is invoked is also one which is available in the foreign jurisdiction making the request.
If a document is not considered privileged under English law, but is potentially privileged under the law of the jurisdiction making a request, then questions about the status of such documents have to be resolved before the documents are submitted to the Courts.