Obtaining evidence from a UK-based person for use in foreign proceedings

Introduction
The High Court of Justice of England & Wales (the “Court”) can assist parties to ongoing foreign proceedings to obtain evidence from a UK-based person, for use in those proceedings.

Where a party wishes to obtain such evidence, the starting point would usually be for it to seek to do so by approaching the UK-based entity or individual (or their lawyers) directly. If the persons is unwilling to cooperate, consideration ought to be given to any channels within the jurisdiction in which the proceedings are ongoing through which the party might be able to obtain the evidence needed.

Should both of the above routes fail to produce the evidence required, a party can seek assistance from the Court by following the procedure which derives from the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”), to which a number of countries are signatories (including, for example, the US).

The procedure
The procedure is initiated by the party seeking the evidence in question. That party will need to ask the Requesting Court to make a Request to the English Court, specifying:

1. the authority requesting its execution and the authority requested to execute it;
2. the names and addresses of the parties to the proceedings and their representatives (if any);
3. the nature of the proceedings for which the evidence is required;
4. the evidence to be obtained (or other judicial act to be performed).

Where appropriate, the Request must also include:

5. the names and addresses of the persons to be examined;
6. the questions to be put to them or a statement of the subject-matter about which they are to be examined;
7. the documents or other property to be inspected;
8. any requirement that the evidence is to be given on oath or affirmation, and any special form to be used; and
9. any special method or procedure to be followed.

(Art. 3 of the Hague Convention)

If the Request is approved by the Requesting Court, it may then be submitted through diplomatic channels or, what is generally regarded as a more efficient and effective method, by instructing English solicitors to make an application pursuant to the Hague Convention seeking the assistance of the Court.

The power of the Court to give effect to an application for assistance derives from section 2(1) of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the Act”), which implemented the Hague Convention in England & Wales, as follows:

“…the High Court… [has] power, on any such application as is mentioned in section 1 [of the Act], by order to make such provision for obtaining evidence in the part of the United Kingdom in which it exercises jurisdiction as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose.”

An application for an order under the Act must be made to the Senior Master of the Court, supported by written evidence, and accompanied by the Request and a draft Order (the “Application”). The Application may be (and is usually) made without notice to the entity or individual in question.

In deciding whether to execute the Request, the Court will take into account a number of factors, including whether:

1. the Request relates to a “civil or commercial matter” under the laws of England & Wales as well as the law of the requesting state (Re State of Norway’s Application (No. 2) [1990] 1 AC 723)
2. the foreign proceedings have a trial either pending or contemplated;
3. the Request makes clear that the evidence sought is relevant to the issues for, and is to be used at, trial;
4. the entity or individual has knowledge of the matters in issue in the foreign proceedings, and is likely to have evidence which will be relevant at the trial of those proceedings;
5. the Requesting Court has considered the relevance of the topics in the Request. The Court will generally rely on the judgement of the Requesting Court as to what is, or is not, relevant, and thus whether the Request is investigatory in nature;
6. the Request is oppressive, i.e. the Request is too vague or uncertain in nature, or the UK-based entity or individual would have difficulties in dealing with the topics contained therein. A Request should only include the elements that the evidence sought could justify, and should be focused both in terms of subject matter and dates;
7. the Request seeks steps to be taken for obtaining evidence which would not be permitted in English civil proceedings. However, section 2(3) of the Act does not permit the Court to refuse an examination in respect of topics where the issues are not included in the pleaded cases of the parties; and
8. the Request is frivolous, vexatious or an abuse of process.

If the Court considers that an element of the Request is not permitted, it may edit that element of the Request but will not be prepared to re-write it. If it rejects an element of the Request, the applicant will want to ensure it seeks that the remainder of the Request still be executed.

It is therefore recommended that an applicant seeks advice in relation to the scope of the Request before the Application for its execution is made to the Court, to ensure it meets the Court’s requirements.

The Court then has the power to order i) the examination of a witness; ii) the production of documents; iii) the inspection, photographing, preservation, custody or detention of any property; iv) the taking of samples of any property; v) the carrying out of any experiments on or with any property; vi) the medical examination of any person; and vii) the taking and testing of samples of blood from any person (section 2(2) of the Act).

Other factors
Other factors which may need to be taken into consideration and appropriately accounted for in the order sought from the English Court are, for example, whether the evidence sought from a witness or the documents by reference to which his/her evidence shall be taken are confidential and subject to a ‘Confidentiality Club’ or any kind of ‘Protective Order’ in the foreign proceedings. If so, it may be that the applicant will want to seek, as part of its Application, to have the evidence taken in private and/or an order that a person who is not a party to the proceedings may not inspect or obtain a copy of the application notice and any documents filed with it without the permission of the Court.

Concluding comments
For further guidance in relation to any issues arising from the above, or should you wish to instruct Memery Crystal in relation to a proposed Application to seek evidence from a UK-based entity or individual, please do not hesitate to get in touch.

It is essential that assistance is sought at an early stage and, we recommend, prior to the Request being submitted to the Requesting Court for approval, in order that the terms of the Request can be tailored to also be permissible by the English Court.