Subpoenaing an Overseas Witness to Give Evidence at Trial in London - is it Possible?

Originally published March 2004

Witnesses can, in various circumstances, be subpoenaed by the Courts of overseas jurisdictions to attend to give evidence by way of depositions within that jurisdiction. So why not take that one step further and ask a foreign court to subpoena the witness to give evidence by live satellite video link to a Court in London? This would be the next best thing to having the witness present in Court. Indeed, the Commercial Court is increasingly amenable to evidence being given in this way (albeit on a voluntary basis) in order to save costs.

Growing use is made of the "Hague Convention Request" as a means of compelling witnesses based overseas to give evidence in connection with litigation taking place in the Courts in London. This procedure can be utilised in circumstances where the witness is resident in a state which is a signatory to the Hague Convention and it paves the way for US-style depositions. However, the Hague Convention route can be bureaucratic and slow and will not deliver live witness evidence at trial. As the trial draws closer it will be increasingly impractical for the parties' lawyers and Counsel to travel half way across the world in order to conduct depositions. In addition to the time burden, the financial costs involved may be prohibitive, even in the context of high value or multi-jurisdictional litigation.

What if the evidence of the witness is critical to your case at trial? What if, despite the best efforts of your lawyers, you cannot persuade the witness to give evidence by video link? Or perhaps the witness seems willing but you just can't take the risk of him reneging on a previous agreement to give evidence by video link at the eleventh hour. Written or video-taped depositions may simply not be sufficient to advance a party's case. For example, where serious allegations as fraud are pleaded any properly advised opposing party will demand that the witness whose evidence is said to support or rebut such allegations be produced at trial.

In a recent insurance dispute in the Commercial Court in London involving allegations of fraud, one of the key defence witnesses was based in California. The Defendant had no hold over the witness and there was no incentive for him to co-operate. Indeed, his evidence could have led to various fraud claims being brought against him personally. It was not in his own personal interest even to set foot in the UK since he risked being served with...