Obtaining Evidence in England for Use in US Proceedings

Due to the increase in global trade and communication it is becoming increasingly evident that important evidence required for proceedings in the US will often be located in England. The English High Court has the power to give effect to the request of a US court to assist in obtaining evidence in England and Wales for use in US 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. The US and UK have both ratified the Hague Convention. 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 There are three ways in which evidence may be obtained in England for use in US 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 US 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 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 The documents to be inspected Every effort should be made to ensure that any questions asked require factual rather than opinion evidence. Witnesses of fact should not offer what is technically inadmissible opinion evidence – as a general rule, only a suitably qualified expert witness may give opinion evidence.

Application

An application must be made to the English High Court. The application must be supported by written evidence usually in the form of a witness statement or an affidavit by the English solicitor appointed as agent.

Limits to the Court's Powers

It is worth noting that there are limits to the powers of the English High Court...