Depositions Discovery And Obtaining Evidence In England For Use In EU Countries

• Published date: 14 June 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Contracts and Commercial Law, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: W Legal
• Author: Mr Steven Loble

Goodbye to Council Regulation (EC) No 1206/2001 of 28 May 2001 and no hello to EU Recast Evidence Regulation - and Coronavirus controls procedure

Depositions during Covid-19

The English Court indicated that from 21 September 2020 examinations of witnesses under the Evidence (Proceedings in Other Jurisdictions) Act 1975 where English solicitors are instructed can be processed by submitting these to the Foreign Process Section either by post or email and any hearings of, or relating to, such applications are able to be listed.

INTRODUCTION

Steven Loble has acted in a large number of cases involving obtaining evidence in England for use in proceedings in other countries, as well as enforcement of judgments. He has undertaken cases in this area throughout his career. This experience provides first-hand knowledge of how the law and procedure works in practice and enables us to meet clients' needs in securing testimony and documents for use at trial in foreign countries.

It also enables us to assist clients who have been served with an Order to give evidence for foreign pleadings, if it appears that the Order should not have been made or if the Order is too wide. In such cases, we can apply for the Order to be set aside or modified to deal with the client's concerns.

This paper explains the procedures for obtaining evidence from non-parties in England and Wales (referred to below as England for the sake of brevity) for use in foreign legal proceedings. The United Kingdom is made up of a number of different jurisdictions - England, Scotland, Northern Ireland and the Channel Islands (each of which is a separate jurisdiction). The paper suggests the most appropriate procedures in particular cases for England only; it is not an exhaustive review of the law or procedure.

Evidence may be obtained in England for use in foreign proceedings without any formal order. In certain other countries the obtaining of evidence without the permission of the Court is a criminal offence but the English Courts will not interfere with any procedure by which witnesses appear voluntarily to give evidence or produce documents. Only in restricted circumstances may production of documents be contrary to English law (e.g. pursuant to the Protection of Trading Interests Act 1989).

The EU Recast Evidence Regulation enters into force on 1 July 2022. It will supersede Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. Apart from requests received prior to 31 December 2020, the EU regulations no longer apply in relation to litigation in courts of EU member states.

Many of the cases referred to below involve requests from US courts, which are the most prolific source of requests, but the same rules apply wherever the request comes from.

THE METHODS OF OBTAINING EVIDENCE IN ENGLAND AND WALES

Evidence may be collected in England for foreign proceedings in the three ways described below: -

VOLUNTARILY

Depositions can be taken and documentary evidence collected from any persons willing to appear voluntarily. This must be done in a way acceptable to the foreign court.

Evidence can be taken voluntarily or pursuant to Letters Rogatory (known in England as 'Letters of Request' and so referred to below).

PURSUANT TO THE HAGUE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

The Evidence (Proceedings in other Jurisdictions) Act 1975 was passed partly to give effect to the Hague Convention. The Act goes further than necessary for the purposes of the Convention and should be read in conjunction with Part 34 of the English Civil Procedure Rules (CPR) to ascertain the boundaries within which evidence can be obtained pursuant to the Convention, or for foreign proceedings generally, and the procedure for obtaining such evidence. The procedure under The Hague Convention is the same for any country which is a party to it and indeed for any country which requests judicial assistance from the English Court.

LETTERS OF REQUEST

Letters of Request may be submitted either (i) through diplomatic channels or (ii) directly by English Solicitors.

If English Solicitors are not instructed by the party seeking an Order for depositions or the production of documents, the Treasury Solicitor (the government legal service) will make an application to the Court for an Order but it is more prudent to instruct English Solicitors in case the witnesses resist the Order. It is also quicker to instruct Solicitors and to send the Letters of Request directly to them - an Order can then be obtained within a week, whereas transmission through diplomatic channels takes considerably longer.

DISCOVERY AND FISHING EXPEDITIONS

Discovery in England and Wales (which is documentary only) is much narrower than the discovery which is allowed in the U.S.: English Courts will not countenance 'fishing expeditions'. The English Court is prohibited from making an order requiring any particular steps to be taken unless they are steps which could be taken to obtain evidence for the purposes of civil proceedings in the English Court. The English rules distinguish between (i) evidence in the nature of proof to be used for the purposes of the trial and (ii) evidence in the nature of pre-trial discovery to be used for purposes of a train of enquiry which might produce evidence for trial. The English Court will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents and will not give effect to a request for those purposes.

The notes to the CPR state:

'Distinction between evidence for trial or for pre-trial purposes

Under s.2(3), the English Court is prohibited from making an order requiring any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the English Court, whether or not they are proceedings of the same description as those to which the application for the order relates. This provision, which applies both to oral and documentary evidence recognises and gives effect to the distinction between evidence in the nature of proof to be used for the purposes of the trial and evidence in the nature of pre-trial disclosure to be used for the purposes of leading to a train of inquiry which might produce direct evidence for the trial. This distinction was in the mind of the draftsman of the Act of 1975 and was made the subject of an express declaration by Her Majesty's Government when ratifying the Hague Convention that the United Kingdom would 'not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents' (see Cmnd. 6727 (1976)).

Accordingly, the English Court could in the past refuse to make an order in aid of a foreign request for evidence if it appeared or to the extent to whichit appeared that that evidence was required, not for the purpose of proofat the foreign trial, where it was admissible and relevant to the issues in those proceedings, but for the purpose of disclosure, something in the nature of a roving inquiry in which a party was seeking to 'fish out' some material which might lead to obtaining admissible evidence at the trial, even though the procedure of the foreign Court permitted such a practice, as, for example, r.26 of the U.S. Federal Rules of Civil Procedure and the rules of many State Courts in the U.S.A., and Rule 18 of the Nova Scotia Civil Procedure Rules.' (see CPR 31.21.5)

PROCEEDINGS MUST HAVE BEEN INSTITUTED OR BE CONTEMPLATED

The English Court will not give effect to any request from a foreign unless proceedings have actually been instituted or proceedings are contemplated. In this context 'contemplated' means that proceedings are imminent or pending.

GENERAL PRINCIPLE

Subject to the above, the general principle followed by the English Courtis that the English Court will ordinarily give effect to requests from foreign courts so far as is proper and practicable and to the extent that is permissible under English Law.

NO GENERAL INVESTIGATION

General investigation (e.g. in Chapter 11 Bankruptcy Proceedings) will not be allowed - re. International Power Industries Inc. [1984] (not officially reported). Documents sought must be specifically listed and not referredto by general descriptions.

As the English Court of Appeal stated in State of Minnesota v Philip Morris Incorporated and Others,

'The difficulty inthe present case, as in previous cases, arises because of the difference in approach to discovery in this country and the United States.Their discovery procedures are not necessarily the same in all States. But in general in the United States there is a tradition of oral discovery which has never been developed in this country. Rightly or wrongly, we regard oral discovery as a form of discovery which generates unnecessary costs and complexity. There is another difference between the approach to discovery in this country and that in the United States. Generally, where it is possible to get much wider 'non party' discovery. That is discovery against those who are not parties to the proceedings.' (per Lord Woolf MR).

In Smith v Phillip Morris Companies Inc and others [2006] EWHC 916 (QB) an Order made in England for evidence to be given in connection with a case in the United States was set aside. Andrew Smith J referred to the list of topics for examination attached to the letter of request and said,

'[6] There are 17 'topics for examination' listed in attachment A. The first nine topics are couched in similar terms, namely 'All communications you have had with the following former or current...