Gathering Evidence in Aid of Foreign Litigation Guide |
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Scotland |
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(Europe)
Firm
Burness Paull LLP
Contributors
Joanna Fulton |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, Scotland is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) and has a defined procedure under the Evidence (Proceedings in Other Jurisdictions) Act 1975. Since the UK left the EU on January 1, 2021, there are no special rules for the taking of evidence that apply between the EU Member States and the UK. |
| 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, Scotland is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). The Hague Evidence Convention was ratified in the UK by the Evidence (Proceedings in Other Jurisdictions) Act 1975. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | An application should be made in Scotland to the Court of Session in order for evidence to be obtained in Scotland. The application must be made by way of a petition in the Inner House of the Court of Session.1 The Court of Session must be satisfied:
[1] Rules of the Court of Session, 14.3(f) |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | An order may make provision:
[1] Evidence (Proceedings in Other Jurisdictions) Act 1975, s.2(2) |
| Who bears the burden of showing whether any privileges apply? | The person claiming that they cannot provide evidence due to an applicable privilege bears the burden of showing that privilege applies.1 However, if the person is claiming under a privilege that exists in the requesting jurisdiction, this must either be supported by a statement contained in the request or conceded by the applicant.2
[1] Ibid, s.3 [2] Ibid, s.3(2) |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | An order shall not require any particular steps to be taken unless they are steps that can be required by way of obtaining evidence for the purposes of civil proceedings in the court making the order.1 A person shall not be compelled by virtue of an order to give any evidence which he could not be compelled to give:
[1] Ibid, s.2(3) [2] Ibid, s.3(1) [3] Ibid, s.3(2) |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, parties can apply by motion for authority for the whole or part of the evidence of a witness to be given through a live link.1
[1] Rules of the Court of Session, rule 93.1 |
| 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? | A witness or haver (those holding requested documents) may claim they are not compellable in relation to oral or documentary evidence which they are ordered to give or produce:
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| 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? | There does not appear to be any restrictions on persons voluntarily providing evidence in aid of foreign proceedings. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | There is an English case that states that the Court of Appeal has jurisdiction by virtue of the Arbitration Act 1996, s.44(2)(a) to order a non-party witness to give evidence in aid of a foreign arbitration (A and B v C, D and E [2020] EWCA Civ 409). Rule 45 of the Scottish Arbitration Rules give the Outer House of the Court of Session a similar power to the 1996 Act Rule, however, this has not been tested in the Scottish courts. The court may order attendance but equally, it has no compulsive power over any failure to attend. Furthermore, the power of the courts only runs within the jurisdiction, and the ability to enforce an order on foreign residents may be limited unless they visit Scotland for some reason. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes, Scotland is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) and has a defined procedure under the Evidence (Proceedings in Other Jurisdictions) Act 1975.
Since the UK left the EU on January 1, 2021, there are no special rules for the taking of evidence that apply between the EU Member States and the UK.
Yes, Scotland is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). The Hague Evidence Convention was ratified in the UK by the Evidence (Proceedings in Other Jurisdictions) Act 1975.
An application should be made in Scotland to the Court of Session in order for evidence to be obtained in Scotland. The application must be made by way of a petition in the Inner House of the Court of Session.1
The Court of Session must be satisfied:
- That the application is made in pursuance of a request issued by or on behalf of a court or tribunal (“the requesting court”) exercising jurisdiction in any other part of the UK or in a country or territory outside the UK; and
- That the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.
[1] Rules of the Court of Session, 14.3(f)
An order may make provision:
- For the examination of witnesses, either orally or in writing;
- For the production of documents;
- For the inspection, photographing, preservation, custody or detention of any property;
- For the taking of samples of any property and the carrying out of any experiments on or with any property;
- For the medical examination of any person;
- Without prejudice to the previous, for the taking and testing of samples of blood from any person.1
[1] Evidence (Proceedings in Other Jurisdictions) Act 1975, s.2(2)
The person claiming that they cannot provide evidence due to an applicable privilege bears the burden of showing that privilege applies.1
However, if the person is claiming under a privilege that exists in the requesting jurisdiction, this must either be supported by a statement contained in the request or conceded by the applicant.2
[1] Ibid, s.3
[2] Ibid, s.3(2)
An order shall not require any particular steps to be taken unless they are steps that can be required by way of obtaining evidence for the purposes of civil proceedings in the court making the order.1
A person shall not be compelled by virtue of an order to give any evidence which he could not be compelled to give:
- In civil proceedings in the part of the UK in which the court that made the order exercises jurisdiction; or
- In civil proceedings in the country or territory in which the requesting court exercises jurisdiction.2 This shall not apply unless the claim of the person in question to be exempt from giving the evidence is either: supported by a statement contained in the request or conceded by the applicant for the order.3
[1] Ibid, s.2(3)
[2] Ibid, s.3(1)
[3] Ibid, s.3(2)
Yes, parties can apply by motion for authority for the whole or part of the evidence of a witness to be given through a live link.1
[1] Rules of the Court of Session, rule 93.1
A witness or haver (those holding requested documents) may claim they are not compellable in relation to oral or documentary evidence which they are ordered to give or produce:
- Where he would be able to do so in Scottish civil proceedings;
- Where he would be able to do so in the country of the requesting court; or
- Where the evidence would be prejudicial to UK security, in respect of which a certificate by or on behalf of the Secretary of State is conclusive.
There does not appear to be any restrictions on persons voluntarily providing evidence in aid of foreign proceedings.
There is an English case that states that the Court of Appeal has jurisdiction by virtue of the Arbitration Act 1996, s.44(2)(a) to order a non-party witness to give evidence in aid of a foreign arbitration (A and B v C, D and E [2020] EWCA Civ 409). Rule 45 of the Scottish Arbitration Rules give the Outer House of the Court of Session a similar power to the 1996 Act Rule, however, this has not been tested in the Scottish courts.
The court may order attendance but equally, it has no compulsive power over any failure to attend. Furthermore, the power of the courts only runs within the jurisdiction, and the ability to enforce an order on foreign residents may be limited unless they visit Scotland for some reason.