Gathering Evidence in Aid of Foreign Litigation Guide |
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England and Wales |
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(Europe)
Firm
Steptoe LLP
Contributors
Jonathan Raynes |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. However, please note that our answers relate to foreign civil or commercial disputes only. We have not addressed any procedures that may be available in support of criminal proceedings. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes. The United Kingdom (“UK”) (of which England and Wales are constituent parts) is a contracting state to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (“Hague Evidence Convention”), which is given effect in the UK by the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“E(POJ)A 1975”). In England and Wales, Part 34 of the Civil Procedure Rules 1998 (“CPR”) on Witnesses, Depositions and Evidence for Foreign Courts applies to applications under the E(POJ)A 1975. (The E(POJ)A 1975 also applies to witnesses in Scotland or Northern Ireland, but CPR 34 does not, meaning different procedural rules for witnesses in Scotland or Northern Ireland.) As regards EU member states, the end of the transition period under the UK Withdrawal Act means that Regulation (EC) No 1206/2001 on the Cooperation Between the Courts of the Member States on the Taking of Evidence in Civil or Commercial Matters is no longer applicable between the UK and EU member States. From January 1, 2021, all incoming requests from EU member states which are the contracting states to the Taking of Evidence Convention will instead be governed by the Hague Evidence Convention. All EU member states are signatories of the Hague Evidence Convention except for Austria, Belgium and Ireland. The UK has also entered into bilateral civil procedure conventions with more than 30 countries. In many instances, these conventions provide rules applicable to obtaining evidence in the territory of one signatory state for use in proceedings of the other signatory state. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | The typical procedure is to apply for orders under E(POJ)A 1975 giving effect to a letter of request issued by a requesting court. A party seeking evidence (“Requesting Party”) should apply to the High Court (England) for an order under the E(POJ)A 1975 and CPR 34. Applications are usually made ex parte. Evidence is required, but normally the evidence comprises a summary of the letter of request from the Requesting Court with the letter exhibited. The Masters of the English High Court who deals with letters of request have developed significant experience in this area. They will attempt to give effect to letters of request where possible. In many cases, orders are granted on the terms sought in the letter of request. Alternatively, if the orders sought in a letter of request are improperly wide, the court’s practice is to limit or reduce the scope of the orders (if possible), rather than refuse outright to make an order. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Under the E(POJ)A 1975, a court order may make provision for the: (i) examination of witnesses; (ii) production of documents; (iii) inspection, preservation and custody of property; (iv) taking of samples from, and the carrying out of experiments on, property. The E(POJ)A 1975 procedure can accordingly be used to compel the production of documents and depositions (among other evidence). Depositions generally take place before an “Examiner” appointed by the court, rather than a Master or Judge of the Court. However, the UK has made a reservation pursuant to Article 23 of the Hague Evidence Convention whereby the E(POJ)A 1975 cannot be used for pre-commencement disclosure or discovery. |
| Who bears the burden of showing whether any privileges apply? | As to privilege (including any privilege as to self-incrimination), the witness has the benefit of all privileges that would apply in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction, or in civil proceedings in the jurisdiction of the Requesting Court. Neither the E(POJ)A 1975 nor CPR 34 expressly states which party has the burden of showing whether the privilege applies, but in practice, the witness claiming privilege must justify the claim to privilege. As to the procedure for claiming privilege: If a witness asserts privilege under the laws of the Requesting Court, he or she may be required to give the evidence during the deposition with an objection noted on the transcript. Subsequently: The section of the evidence in respect of which privilege is claimed will be separated from the remainder of the deposition. The section of the deposition in respect of which privilege is claimed will be retained by the English Master, with reasons given for the privilege claim provided to the Requesting Court. The Requesting Court will then determine matters of privilege according to its own rules. If the Requesting Court determines the privilege claim against the witness, the retained section of the deposition is provided to the Requesting Court. If the Requesting Court upholds the privilege claim, the privileged section of the transcript is sent to the witness. If the witness asserts a privilege under English law, the examiner should determine whether the privilege applies and, if so, permit the witness not to answer. If the witness disputes the examiner’s decision and refuses to answer, he or she (or counsel) should clearly state the reasons, so they are noted on the transcript. In such a case, the Requesting Party would need to make an application to the English Court for compliance with the order and, in doing so, have a Master or Judge determine the disputed question of privilege under English law. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | The E(POJ)A 1975 can only be used to compel the production of “evidence” for use in overseas proceedings. However, when a UK court is asked to make an order giving effect to a letter of request, the Master or Judge is not usually in a position to second-guess the laws of evidence of the Requesting Court, such as rules governing relevance or admissibility, and so will assume that the letter of request seeks evidence capable of admission. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Pre-COVID-19, depositions were often conducted in person, with counsel instructed in the matter before the Requesting Court also attending in person. However, there is scope for depositions to be conducted by video link. In particular, guidance can be found in the Permanent Bureau of the Hague Conference on Private International Law’s Guide to Good Practice on the Use of Video-Link under the Hague Evidence Convention and, in England and Wales, in CPR Practice Direction 32. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | The UK has no “blocking statutes". |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | UK-resident witnesses can give evidence voluntarily in overseas proceedings. It is however sometimes desirable to compel even voluntary witnesses to avoid the risk that they change their mind. If orders are made under the E(POJ)A 1975 or the Arbitration Act and the witness does not comply, the witness may be held in contempt of the court having made the order. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | The Arbitration Act 1996 (“Arbitration Act”) gives certain UK courts the same power to make orders in support of arbitration as they have with regard to court proceedings. This power extends to foreign-seated arbitrations. Under the Arbitration Act, the court may issue a “witness summons” requiring the production of documents (i.e., a subpoena duces tecum). The court will require the identification of specific documents or identifiable categories of documents. The jurisdiction does not extend to pre-commencement discovery or disclosure. The court may order a witness to attend a hearing to give oral testimony (so long as that part of the arbitral proceedings is conducted in England and Wales or in Northern Ireland). In practice, the scope of evidence that can be obtained under the Arbitration Act is broadly similar to that under the E(POJ)A 1975, but there are certain procedural differences. Where an arbitration has a foreign seat, an applicant must also show it is not “inappropriate” for the court to make the orders. Although a witness summons may be issued under the Arbitration Act against a non-party, the court will only make such orders if it is “necessary” to do so (in particular, if the evidence cannot be obtained any other way).
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Gathering Evidence in Aid of Foreign Litigation Guide
Yes. However, please note that our answers relate to foreign civil or commercial disputes only. We have not addressed any procedures that may be available in support of criminal proceedings.
Yes. The United Kingdom (“UK”) (of which England and Wales are constituent parts) is a contracting state to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (“Hague Evidence Convention”), which is given effect in the UK by the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“E(POJ)A 1975”).
In England and Wales, Part 34 of the Civil Procedure Rules 1998 (“CPR”) on Witnesses, Depositions and Evidence for Foreign Courts applies to applications under the E(POJ)A 1975. (The E(POJ)A 1975 also applies to witnesses in Scotland or Northern Ireland, but CPR 34 does not, meaning different procedural rules for witnesses in Scotland or Northern Ireland.)
As regards EU member states, the end of the transition period under the UK Withdrawal Act means that Regulation (EC) No 1206/2001 on the Cooperation Between the Courts of the Member States on the Taking of Evidence in Civil or Commercial Matters is no longer applicable between the UK and EU member States. From January 1, 2021, all incoming requests from EU member states which are the contracting states to the Taking of Evidence Convention will instead be governed by the Hague Evidence Convention. All EU member states are signatories of the Hague Evidence Convention except for Austria, Belgium and Ireland.
The UK has also entered into bilateral civil procedure conventions with more than 30 countries. In many instances, these conventions provide rules applicable to obtaining evidence in the territory of one signatory state for use in proceedings of the other signatory state.
The typical procedure is to apply for orders under E(POJ)A 1975 giving effect to a letter of request issued by a requesting court. A party seeking evidence (“Requesting Party”) should apply to the High Court (England) for an order under the E(POJ)A 1975 and CPR 34.
Applications are usually made ex parte. Evidence is required, but normally the evidence comprises a summary of the letter of request from the Requesting Court with the letter exhibited.
The Masters of the English High Court who deals with letters of request have developed significant experience in this area. They will attempt to give effect to letters of request where possible. In many cases, orders are granted on the terms sought in the letter of request. Alternatively, if the orders sought in a letter of request are improperly wide, the court’s practice is to limit or reduce the scope of the orders (if possible), rather than refuse outright to make an order.
Under the E(POJ)A 1975, a court order may make provision for the: (i) examination of witnesses; (ii) production of documents; (iii) inspection, preservation and custody of property; (iv) taking of samples from, and the carrying out of experiments on, property.
The E(POJ)A 1975 procedure can accordingly be used to compel the production of documents and depositions (among other evidence). Depositions generally take place before an “Examiner” appointed by the court, rather than a Master or Judge of the Court.
However, the UK has made a reservation pursuant to Article 23 of the Hague Evidence Convention whereby the E(POJ)A 1975 cannot be used for pre-commencement disclosure or discovery.
As to privilege (including any privilege as to self-incrimination), the witness has the benefit of all privileges that would apply in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction, or in civil proceedings in the jurisdiction of the Requesting Court.
Neither the E(POJ)A 1975 nor CPR 34 expressly states which party has the burden of showing whether the privilege applies, but in practice, the witness claiming privilege must justify the claim to privilege.
As to the procedure for claiming privilege:
If a witness asserts privilege under the laws of the Requesting Court, he or she may be required to give the evidence during the deposition with an objection noted on the transcript. Subsequently:
The section of the evidence in respect of which privilege is claimed will be separated from the remainder of the deposition. The section of the deposition in respect of which privilege is claimed will be retained by the English Master, with reasons given for the privilege claim provided to the Requesting Court.
The Requesting Court will then determine matters of privilege according to its own rules. If the Requesting Court determines the privilege claim against the witness, the retained section of the deposition is provided to the Requesting Court. If the Requesting Court upholds the privilege claim, the privileged section of the transcript is sent to the witness.
If the witness asserts a privilege under English law, the examiner should determine whether the privilege applies and, if so, permit the witness not to answer. If the witness disputes the examiner’s decision and refuses to answer, he or she (or counsel) should clearly state the reasons, so they are noted on the transcript. In such a case, the Requesting Party would need to make an application to the English Court for compliance with the order and, in doing so, have a Master or Judge determine the disputed question of privilege under English law.
The E(POJ)A 1975 can only be used to compel the production of “evidence” for use in overseas proceedings.
However, when a UK court is asked to make an order giving effect to a letter of request, the Master or Judge is not usually in a position to second-guess the laws of evidence of the Requesting Court, such as rules governing relevance or admissibility, and so will assume that the letter of request seeks evidence capable of admission.
Pre-COVID-19, depositions were often conducted in person, with counsel instructed in the matter before the Requesting Court also attending in person. However, there is scope for depositions to be conducted by video link. In particular, guidance can be found in the Permanent Bureau of the Hague Conference on Private International Law’s Guide to Good Practice on the Use of Video-Link under the Hague Evidence Convention and, in England and Wales, in CPR Practice Direction 32.
The UK has no “blocking statutes".
UK-resident witnesses can give evidence voluntarily in overseas proceedings.
It is however sometimes desirable to compel even voluntary witnesses to avoid the risk that they change their mind. If orders are made under the E(POJ)A 1975 or the Arbitration Act and the witness does not comply, the witness may be held in contempt of the court having made the order.
The Arbitration Act 1996 (“Arbitration Act”) gives certain UK courts the same power to make orders in support of arbitration as they have with regard to court proceedings. This power extends to foreign-seated arbitrations.
Under the Arbitration Act, the court may issue a “witness summons” requiring the production of documents (i.e., a subpoena duces tecum). The court will require the identification of specific documents or identifiable categories of documents. The jurisdiction does not extend to pre-commencement discovery or disclosure. The court may order a witness to attend a hearing to give oral testimony (so long as that part of the arbitral proceedings is conducted in England and Wales or in Northern Ireland).
In practice, the scope of evidence that can be obtained under the Arbitration Act is broadly similar to that under the E(POJ)A 1975, but there are certain procedural differences. Where an arbitration has a foreign seat, an applicant must also show it is not “inappropriate” for the court to make the orders. Although a witness summons may be issued under the Arbitration Act against a non-party, the court will only make such orders if it is “necessary” to do so (in particular, if the evidence cannot be obtained any other way).