Obtaining evidence in England for use in foreign proceedings

Due to the increase in global trade and communication it is becoming increasingly evident that important evidence required for proceedings outside of England will often be located in England. The English High Court has the power to give effect to the request of a foreign court to assist in obtaining evidence in England and Wales for use in foreign proceedings. The English High Court is required by statute - the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the Act) - to assist countries which are a party to either the Hague Convention on the Taking of evidence Abroad in civil or Commercial Matters or a country with which the UK has a Bilateral Convention. If the requesting court and the witnesses are located in an EU country (other than Denmark), then the procedure is governed by the Regulation on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (Regulation 1206/2001). Under the Act, the English Court is given extensive powers to make orders for obtaining evidence in England. For example, the court may order:

The examination of witnesses, either orally or in writing; The production of documents; and/or The inspection, photocopying, preservation, custody or detention of any property The fact that a country is not party to either the Hague Convention, a Bilateral Convention or Regulation 1206/2001 does not prevent its Courts from seeking the assistance of the English High Court in obtaining evidence in England.

There are three ways in which evidence may be obtained in England for use in foreign proceedings:

By voluntary agreement By a Letter of Request through diplomatic channels By a Letter of Request under the Act The most common way of obtaining such evidence in England is by the third method, a letter of request under the Act.

Letters of Request

A letter of request should be prepared by the lawyers of the party desiring the production of evidence. This should be signed by the requesting foreign court and addressed to the Senior Master of the Queen's Bench Division of the High Court. There is no prescribed form of a letter of request, however if proceeding under the Hague Convention it must comply with the convention and must specify:

The evidence to be obtained; The names and addresses of the persons to be examined, where appropriate The questions to be put or a statement of the subject matter about which they are to be examined; and The documents to be inspected. Every...