This year, the Foreign, Commonwealth & Development Office (FCDO) published its guidance on the process for UK litigants wishing to arrange for the giving of evidence from abroad.

The Guidance confirms taking of evidence in civil and commercial matters is governed by The Hague Convention or bilateral agreements between the UK and other countries.

Whilst the Guidance is helpful insofar as it outlines a number of countries that will allow parties to adduce evidence from abroad, there are a number of notable omissions. By way of example, no mention is made of the following conventional holiday destinations for UK tour operators:

  • Cyprus
  • Egypt;
  • Greece;
  • Portugal;
  • Spain;
  • Tunisia

That is despite, for example, Cyprus, Greece and Portugal not objecting to UK litigants procuring direct evidence from those within its territory under The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

In addition, no reference is made in the Guidance to Annex 3 of the Practice Direction to Part 32 of the Civil Procedure Rules, which provides specific guidance as to the steps to be taken when considering and arranging video conferencing. Annex 3 confirms that not all foreign governments are willing to allow those within their jurisdiction to be examined by way of video conference and enquiries should be made with the Taking of Evidence Team at the FCDO ([email protected]).

The party seeking to arrange evidence by way of video conference must be able to inform the court that all enquiries have been made and what the outcome of those enquiries was. This is not without its difficulties, as identified by the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in their ‘Guide to Good Practice on the Use of Video-Link under the Evidence Convention’, which was updated to November 2019. This guide notes that whilst many of the contracting parties to the Hague Evidence Convention do not consider there to be legal obstacles in the use of video conferencing, the use of the same is inconsistent and the Convention is interpreted in different ways by different contracting parties. For example, some consider the direct taking of evidence is permitted under the Evidence Convention (i.e., a Judge or barristers in England putting questions directly to the witness in Greece via video link), whilst others do not agree the Convention allows for direct taking of evidence; this can have a significant impact in procuring evidence and successfully defending claim. Where direct evidence is permitted, some contracting parties require Letters of Request to be sent. In England & Wales, the Central Authority is the Foreign Process Section at the RCJ and all Letters of Request have to go via them to their foreign counterpart; this can add significant delay and cost to claims.

The HCCH periodically sends questionnaires to contracting parties in order to update the Conventions and their guidance. In 2017, there was a 53% return rate. A further questionnaire was prepared in December 2022 and sent to contracting parties with the purpose of seeking information to assist in the ongoing monitoring of the Evidence Convention and define any key issues to be discussed at the meeting of the Special Commission on the practical operation of the 1965 Service Convention, the 1970 Evidence Convention and the 1980 Access to Justice Convention, which is due to take place in November 2023. Responses were to be provided by 31 March 2023, although to date none have been uploaded to the HCCH website. The questionnaire goes into some detail regarding use of information technology and procedures for witness examination, therefore it is hoped a larger number of contracting parties have responded.

Thus, whilst a welcome initial step, it seems additional updates will be required, before the FCDO Guidance becomes a comprehensive one-stop-shop for cross-border practitioners. HCCH updates take on greater importance post-Brexit, as the UK has to place greater reliance on the Hague Conventions to facilitate cross-border work.