Advocacy in an alternative environment – Foreign requests for evidence – Some useful reminders

The ease with which businesses carry out international trade in the modern day has meant that cross-border disputes involving multiple different jurisdictions are relatively commonplace. As a result, English courts have had to grapple with an ever increasing quantity of requests from foreign jurisdictions for assistance in taking evidence and transmitting it to foreign courts for use in their judicial proceedings (and vice versa).

Foreign requests for co-operation in civil or commercial matters can be implemented by the English courts under a number of legal bases (and are generally referred to as “letters of request” or “letters rogatory”).

If the request is from an EU country, a specific EU regulation (the Taking of Evidence Regulation) will usually apply and if the requesting court is from a non-EU country then the Evidence (Proceedings in Other Jurisdictions) Act 1975 will usually be relevant, together with CPR 34.17 and 34A.

One aspect of foreign requests, which may be of particular interest to solicitor-advocates practicing civil litigation, is the circumstances in which an English court may order the oral examination of witnesses by way of deposition, pursuant to a request from a foreign court. Given the peculiarities of this process, some useful reminders of specific nuances relevant to advocacy in this setting are outlined below.

Where the English court has ordered the oral examination of a witness in this manner, the examination will usually take place outside of the court room (e.g. at a law firm’s offices), and is taken before “any fit and proper person nominated by the applicant”, “an examiner of the court” or “any other person whom the court considers suitable” (CPR 34.18). Typically, in contested civil proceedings, the applicant will appoint an examiner who is likely to hold (or have held) judicial office. The room itself is usually set up with a stenographer and there will also commonly be audio and video recordings of the examination.

Whilst the examination may “look and feel” like a US-style deposition (like those depicted on TV), in reality, the way in which the examination should be conducted as a matter of procedure (absent any special considerations) is in “English mode”, as if the room were indeed an English court, applying English rules.

This gives rise to a number of practical points, which are worth noting when representing clients in this context:

  • The witness cannot be compelled to answer anything that they would not be required to in English civil litigation (even though the evidence is technically for a foreign court);

  • The party calling the witness should carry out examination in chief – questions should be open (on the whole) and in line with the typical procedures in English courts;

  • Be wary of interference with the witness evidence by foreign (or domestic) advocates – the rules on “objections” and interruptions to a witnesses’ oral responses in England can be very different to what is permitted in the foreign court from which the request originated;

  • Privilege can be claimed by the witness (both under English and that of the foreign law). This can give rise to very complex arguments between the parties as to what can be disclosed, particularly where English law would not protect disclosure, but it is argued that a foreign law would;

  • There is a specific process in CPR 34.20 to deal with claims by a witness to privilege based on the relevant foreign law – be aware of those mechanisms, which generally require the evidence to be given, recorded and sent to the foreign court for determination; and

  • If there are breaks during the course of evidence, “purdah” still applies – therefore any attempted coaching / discussions with witnesses (which may be commonplace in foreign jurisdictions) are not permitted here.

It is unclear what impact (if any) Brexit will have on the nature and extent of requests made to the English courts to support foreign civil litigation, but given the significance of the United Kingdom to the global economy it would appear that foreign requests for evidence will continue to be important. The practical pointers set out above will hopefully serve as a useful reminder to advocates of some of the specific nuanced issues that can arise in practice.

Jason Raeburn is a Senior Associate / Solicitor-Advocate in the Intellectual Property and Technology department of Baker McKenzie London. Jason represents clients on complex technology disputes, with a particular focus on copyright, patents, trade secrets and the global co-ordination of IP litigation strategies. He has appeared as lead advocate in complex appeal proceedings in the Court of Appeal, urgent injunction applications in the High Court and in specialist intellectual property tribunals.

Jason currently serves on the SAHCA committee and can be contacted at Jason.Raeburn@bakermckenzie.com