Commissions Rogatoires, more usually known in English as Letters Rogatory or Letters of Request, are formal requests for judicial assistance sent by a foreign judicial authority to the Bailiff of Guernsey. The most usual requests in practice are for evidence to be taken on oath or for documents to be produced in Guernsey for use in civil or commercial proceedings which are taking place before a foreign court.
The Material Legislation
Requests for assistance may be made pursuant to the Hague Convention on the Taking of Evidence in Civil or Commercial Matters, concluded 18 March 1970, and pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975, as extended to Guernsey by the Evidence (Proceedings in Other Jurisdictions) (Guernsey) Order 1980. Whilst requests (in the appropriate forum) should always be transmitted formally to the Bailiff, the process can often be expedited if a copy is provided to Guernsey advocates who can then prepare the appropriate application immediately.
What Should a Letter of Request Specify?
A letter of request must specify:
a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority (i.e., in Guernsey, the Royal Court);
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; and
d) the evidence to be obtained or other judicial act to be performed.
Where appropriate, a letter of request should also specify:
a) the names and addresses of the persons to be examined;
b) 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;
c) the documents or other property, real or personal, to be inspected;
d) any requirement that the evidence is to be given on oath or affirmation; and
e) any special method or procedure to be followed.
What is the Procedure?
In executing a letter of request, the Royal Court of Guernsey will apply its own law as to the methods and procedures to be followed. However, it will generally comply with any request from a foreign judicial authority that a special method or procedure be followed, unless such a request is incompatible with the laws of Guernsey or the request would give rise to insuperable practical difficulties. Witnesses are usually examined on oath in the usual way, and proceedings can be recorded on video if the requesting authority requires this. In most cases, the court will expect witnesses to be examined by a Guernsey advocate, but it is always possible for foreign lawyers to be present. All other parties, by their advocates, will have an opportunity to crossexamine witnesses, or to raise any matters of procedure which may arise.
After the letter of request has been presented to the Bailiff, usually on a private application specifically made for the purpose, and the court is satisfied that the request is an appropriate one and in proper form, the court will make the necessary orders. Usually, these orders will include the appointment of a Commissioner for the purposes of providing the assistance sought by the requesting judicial authority, directing that the application and orders made be served on the other party and, if possible at that stage, fixing a date for witnesses to be examined or documents to be produced before the appointed Commissioner.
Can a Person Requested to Give Evidence Refuse to Do So?
A person may refuse to give evidence in so far as he or she has a privilege or duty to refuse to give the evidence:
a) under the law of the Island of Guernsey; or
b) under the law of the requesting judicial authority, providing that such privilege or duty has been specified in the letter of request, or has been confirmed by the requesting judicial authority in some other way.
What is the Likely Timeframe for a Letter of Request to be Executed in Guernsey?
Letters of request must usually be executed expeditiously. It is therefore important to ensure that all the appropriate formal requirements are met (Guernsey advocates can help with the necessary drafting) and that the legal team is ready to make the initial application to the Royal Court for directions as soon as the letter of request has been issued by the foreign authority. Providing the relevant witnesses and documents are available, proceedings can usually be concluded (and the resulting evidence formally transmitted to the requesting authority) within a matter of a few weeks.