Requests for international assistance: how to obtain evidence from abroad

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

By its very nature, international commercial litigation often involves obtaining evidence from various jurisdictions around the world. Obtaining evidence from overseas can be a practical challenge, particularly where the source of the evidence is unwilling to co-operate. The English court does not have authority to compel a person outside the jurisdiction to give witness evidence or to make an overseas non-party to the proceedings provide documentary evidence. However, the English court can ask a foreign court to help them to obtain the evidence sought.

This article will discuss how to obtain evidence from abroad for use in English proceedings.

Letter of request

The English court can send a letter of request to the court of a foreign jurisdiction asking it to obtain evidence for use in English proceedings. The English courts have relationships with certain other jurisdictions which mean they are obliged to co-operate with each other in such situations.

Taking of Evidence Regulation (EU)

All EU member states (except Denmark) are party to the Taking of Evidence Regulation (1206/2001/EC) (the Regulation). The effect of this is that any court of a state party to the Regulation can request a court from a state party to the Regulation to take evidence on its behalf or can request that it takes evidence itself. The Regulation only applies to civil and commercial matters. The receiving court must comply with the request within 90 days of receipt.

The Hague Convention (US and others)

The UK is also a member of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (the Convention), whose other member states include the US. There is no time limit in which the receiving court must comply with the request, however the Convention states that the request should be executed “expeditiously”. If a state is party to both the Convention and the Regulation, the latter will prevail.

Other

Finally, there are various other bilateral treaties which oblige the courts of the states who are party to them to co-operate with respect to providing evidence for use in foreign proceedings. Some of the bilateral treaties are listed on the Foreign and Commonwealth Office (FCO) website. However, the best step is to contact the FCO to confirm whether there is a treaty that applies.

If no treaty applies, a letter of request can still be issued. However, there will be no guarantee that the courts of a country with no treaty will co-operate and there is, therefore, a risk of wasting time and costs in carrying out the exercise.

Procedure

In order to make a request under the Regulation, a party must use the prescribed form annexed to the Regulation and must set out a description of the case, any questions to be put to a witness, any documents or objects to be inspected, and, where applicable, a notice of any right the witness may have to refuse to give evidence under the law of the requesting court.

For all other requests, the procedure for obtaining witness evidence and documents via letters of request is set out in CPR 34.13. A party seeking a letter of request should apply to the senior master for issue in the High Court. The application should contain a statement of issues, a list of questions to be put before the proposed witness and a draft letter of request. The court may ask to be provided with certain documents if it deems them necessary for the deposition. If the order is made, the letter of request will be sent to the foreign court, asking that court to take evidence from the witness or to arrange for it to be taken.

CPR 34.13 incorporates CPR 34.8, the effect of which is that a party may also use a letter of request to obtain documents from overseas. A party seeking documentary evidence via a letter of request must be specific about which documents are sought. It is not permissible to use the letter of request procedure as a general discovery exercise.

Making a successful application

When making the application it is worth considering the following questions which the court will use to decide whether or not to make the order:

1. How much will it cost to obtain the evidence? Will the cost be proportionate to the value of the claim? Is there a cheaper alternative, e.g. an alternative witness located in the UK?
2. Would the witness be able to provide material evidence on the issues? Would the witness be willing and able to travel to the UK? Is the witness in good health?
3. Would the order be oppressive to the potential witness?
4. If obtained, would the evidence be useable in an English court? Considering the procedure of the foreign court, will the evidence have been properly tested?
5. Would obtaining the evidence be in the best interests of all the parties to the proceedings?
6. Has there been any unreasonable delay in making the request?
7. In particular where the request is for documentary evidence, are you able to demonstrate that the evidence is relevant to the issues? The court will not grant the request if it feels it is a fishing expedition.

Case law has shown a tendency for the courts to be more sympathetic towards the defendant than the claimant in deciding whether to grant an order for a letter of request. The reason for this is that the defendant would not have chosen the forum in which to bring the claim. For example, in Ross v Woodford [1984] 1 Ch. 38, a case heard in England, the defendants were allowed to have their evidence taken abroad. They were resident in South Africa and had only been in England temporarily when they entered into the agreement that was the subject of the claim and when they were later served with the writ. The judge was satisfied that the defendants had not left England simply to avoid being examined in court or otherwise to disrupt the proceedings.

Previous experience

Lawyers at Nabarro are experienced in preparing letters of request, both to obtain evidence from overseas and in assisting overseas parties obtain evidence from witnesses in the UK.

In one notable case one of our partners worked on, there were US proceedings against a competitor for using corruption to win contracts for the sale of a product which was only produced by the competitor and the claimant company. The claim was based on anti-trust theories.

The US judge issued a letter of request to the English court to compel several of the defendant company's witnesses, who lived in the UK, to give evidence. The order was granted.

The claimants’ solicitors knew that there was an ongoing criminal investigation into the defendant and its senior managers by the UK Serious Fraud Office (SFO), so they informed the SFO and sought its consent to the taking of evidence from these managers in order to avoid prejudicing the investigation in any way. Consent was given by the SFO.

The evidence was taken and, perhaps not unsurprisingly, the SFO subsequently subpoenaed the evidence, which was then used against the managers in deciding to prosecute them. All of them either pleaded guilty or were later found guilty after a trial as a consequence of the admissions they had made in the civil case.

The civil action was subsequently compromised on very favourable terms for the claimant. This anecdote shows that the use of a letter of request can have very effective results for litigants. The cost of the procedure and the time it takes to pursue it should not be underestimated, however.