International Correspondence Lawyers & Financial Experts

OBTAINING EVIDENCE FROM ENGLAND FOR THE PURPOSES OF CIVIL PROCEEDINGS

Jeremy Marshall, Partner
Bracher Rawlins LLP
Great Britain
www.bracherrawlins.co.uk
jeremy.marshall@bracherrawlins.co.uk

INTRODUCTION

It is often the case that important evidence for civil proceedings is based in England. This evidence takes the form either of witnesses or documents. The system of obtaining evidence in England is somewhat complicated. The English Court of Appeal has recently needed to give this clear warning:

“Once again time and money is being spent in the English courts over Letters Rogatory requesting the English court to order the production of documents and oral deposition from third parties to litigation in the United States of America. That time and money would be unnecessary, if those seeking the request from the United States Court appreciated the differences between the attitude of the United States Courts to the making of “discovery” orders against non-parties, and the attitude of the English court to the making of such orders.”

The purpose of this guidance is to alleviate the concerns expressed by the Court of Appeal.

THE JURISDICTION

The Evidence (Proceedings in Other Jurisdictions) Act 1975 (the “1975 Act”) enables the English High Court to order evidence to be obtained on application made to it (1) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal with relevant jurisdiction ('the requesting court'); and (2) that the evidence concerned is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.

Application pursuant to a request from the requesting court

The term 'request' includes any commission, order or other process issued by or on behalf of the requesting court but in the vast majority of cases the party seeking the evidence applies for the issue of a letter of request from the local Court.

The need for civil proceedings

'Civil proceedings', in relation to the requesting court, means proceedings in any civil or commercial matter, to be defined to include all the procedural steps taken in the course of the proceedings from their institution up to and including their completion. An immediate complication arises in relation to arbitration proceedings that certainly can relate to civil and commercial matters. However, the current state of English law is to exclude private arbitral panels from the 1975 Act.

A further exclusion from the ambit of the 1975 Act relates to criminal proceedings, but there are often cases where evidence for civil proceedings is also be used in criminal proceedings and special factors need to be considered.

THE PROCEDURE

An application for an order under the 1975 Act must be made to the High Court (the power to make such an order be exercised by a master of the Queen's Bench Division). It must be supported by written evidence and be accompanied by the letter of request. The general rule in England is that all applications should be made on notice unless there are good reasons for not doing so, in which case the supporting evidence should make it clear what those reasons are.

The whole issue of giving notice can become confused and can often betray the purposes behind applications. Indeed, it is tempting to say that whenever it is considered appropriate to apply on a without notice basis that there must be a flaw to the application. The reason for this is that the whole process should not be a surprise to anybody. If it is, it is less likely that what is sought is evidence.

The starting point is who should be given notice? Since the application is to be directed to a specific witness, inevitably notice should be given to him/her. The party to the foreign litigation is already on notice in the foreign Court (because they will have been present when the letter of request was issued) but there could be circumstances in England where it is thought appropriate to apply against the witness without giving notice to the other side. It is submitted that it ought to be rare when this situation occurs. The reason for this is that the foreign party is almost certainly going to have a view about the witness’ evidence, and it is much better for a Court to hear one application with all views expressed rather than having a piecemeal approach.

The identity of the witness may to a large extent dictate the approach – all may depend on whether the proposed witness is an employee of the foreign party’s English subsidiary, or is somebody with no connection at all to the foreign party. Clearly if there is an existing relationship to the foreign party, a challenge from the foreign party may be increased.

It is more likely than not, though, that a without notice application may be vulnerable to challenge by the witness, with or without the tacit support of the foreign party, and so should be discouraged

THE ORDER

The High Court can make such provision for obtaining evidence as appears appropriate for the purpose of giving effect to the request in pursuance of which the application is made but no steps may be required 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 High Court. As such, the 1975 Act prohibits the making of an order for the examination of a witness not party to the action for the purpose of seeking information which, though inadmissible at trial, appears to be reasonably calculated to lead to the discovery of admissible evidence since that would be an impermissible investigatory exercise (Rio Tinto Zinc Corpn v Westinghouse Electric Corpn [1978] AC 547).

The order may make provision for the examination of witnesses, either orally or in writing, for the production of documents, for the inspection, photographing, preservation, custody or detention of any property, for the taking of samples of any property and the carrying out of any experiments on or with any property, for the medical examination of any person, and for the taking and testing of blood samples from any person.

The order may not, however, require a person to state what documents relevant to the proceedings to which the application relates are or have been in his possession, custody or power, or to produce any documents other than particular documents specified in the order or being documents appearing to the High Court to be, or to be likely to be, in his possession, custody or power.

Over and above the statutory bars to the making of an order under the 1975 Act, the Court retains an ultimate discretion. The court will generally not exercise its discretion to make an order for the examination of a witness if it is satisfied that the letter of request is mainly of an investigatory character even though it is satisfied that the witness may be able to give some relevant and admissible evidence: United States of America v Philip Morris Inc (unrep) 10 December 2003 at para 76 per Moore-Bick J. A Court will also exercise its discretion against making an order if it is of the view that the order is unfairly oppressive upon the witness or there is other powerful reason not to do so.

Deposition-style requests

The critical point to bear in mind is that the entire process has to subsist within the existing framework of obtaining evidence in civil litigation in England. In other words, relief cannot be sought that would take the case out of the usual procedures. In England, unlike in countries such as the foreign, the concept of a procedure to obtain evidence by oral questioning in advance of trial is unknown. It follows that there is no jurisdiction under the 1975 Act to allow such requests.

Documents

Applications often seek a general disclosure of documents. The 1975 Act is very strict with regard to the documents that can be produced. The requirements of the 1975 Act are not satisfied by the specification of classes of documents; what is called for is the specification of 'particular documents' which means individual documents separately described: Rio Tinto Zinc Corpn v Westinghouse Electric Corpn [1978] AC 547. The power to order a witness to produce documents is limited to the production of documents for use at the trial in the foreign court.

THE CHALLENGES

Since the order is framed as a result of the letter of request, it is important to appreciate that the reality of the position is that challenges will be made against the original letter of request. The importance of this is that the letter of request may well have been drafted in the foreign Court without the benefit of English legal advice and without regard to the specific provisions and constraints of the 1975 Act. The letter of request will have been issued by an overseas judge having regard to the fact that a trial is fast approaching in his Court, and the overseas judge may not be made aware, in the application before him, as to what is not permitted in a letter of request. It follows that there is an appreciable risk that the letter of request as signed by the overseas judge may be amenable to challenge.

If that challenge is successful, the whole process may have metaphorically to be torn up and started again. The consequences could be severe – not just in terms of cost, but also in terms of time. Valuable time will have been incurred at a stage in the Court process when it can be very important to follow timetables rigorously. A real litigation advantage can be given to the opposition if a party comes unstuck on a letter of request issue. In some circumstances, the possibility of obtaining the evidence will have been lost forever because of the constraints of the trial timetable. Although the English Court will strive to remedy a defect, by making an order subject to limitations or conditions, it may not be possible.

Challenges to letters of request in the English courts follow a depressingly familiar pattern. The positive to take from this is that it ought to be possible – if English legal advice is taken before the letter of request is issued from the requesting court – to anticipate and to manage all the possible problem areas.

A typical letter of request issued from a foreign court will schedule areas of proposed testimony in an attachment. It is not unfamiliar to see a vast array of topics in the attachment including “All communications with the following former or current employees of the company” and then proceeding to list an army of employees. Often, the request will be unlimited in terms of time. Many of the topics may not be limited by reference to the subject matter of the communication. Often, contentious matters are assumed and then documents sought to demonstrate the truth of the allegation (for example, where a conspiracy is pleaded). There is also usually a catch-all category that tries to sweep up all communications that have not otherwise been mentioned.

The supporting evidence that is necessary before the grant of an order under the 1975 Act will normally suggest that the witness holds knowledge critical to the claim, and will often base this assertion on the mere fact of the witness’ role within the company or because of the nature of the witness’ role disclosed by the documents that have been reviewed. What often is lacking is a statement to the effect that the testimony is likely to be used at trial or that it is being sought for that purpose. It is quite clear that the English Court will look behind the statement in the supporting evidence that evidence will be used at trial although they will not conduct their own detailed factual analysis.

On many occasions the evidence before the English Court is somewhat one-sided – for example, there will be the originating complaint, but there will be no defence. There is often therefore a real lack of full and frank disclosure.

In an effort to deal with any objection as to seeking widescale disclosure of documents, a party will often agree specifically, for the avoidance of doubt, that it is not seeking such disclosure. All this is often contradicted, however, when the party refers to the transcripts of hearings before the foreign court where there will be copious references to discovery and to depositions and to the “deposition discovery” process. What becomes apparent is that whilst the documents for the English Court are phrased in the way that is required by the English Court, the reality is that it is still the foreign procedures that are sought to be followed. Indeed, it is often the case that the letter of request is issued during the discovery phase of the foreign Court process which puts one on one’s guard.

The deficiencies in the supporting evidence and in the letter of request give rise to standard challenges, namely that the party is seeking to depose the witness in an effort to uncover possible new lines of enquiry and not to obtain evidence for use at trial, so that the order is not compliant with the 1975 Act, and that the proposed examination would be oppressive and so the Court should not exercise its discretion to uphold the order.

The first challenge – as to the nature of what is sought – is often decided in the requesting party’s favour if there are arguments either way. In cases where there is a serious issue as to whether what is sought is evidence, a limitation is often placed in the Order so that, for example, the witness would be examined as if he were giving evidence in chief at the trial or that his examination should be for the purpose only of eliciting and recording testimony appropriate to be given at trial.

It follows, though, that if there is a question mark over the first jurisdictional hurdle, there is often an even more difficult argument to be countered with regard to the second challenge as to whether the request is to be characterized as “oppressive”, “a fishing expedition”, investigatory” or otherwise impermissible. This will particularly be the case if the letter of request is couched in wide terms. If the request ranges far wider than the significance of the witness’s testimony could possibly justify then that is a clear marker that there is an investigatory nature to the request.

There is a need to balance the English Court's general wish to assist the court making the request and the proper interests of the potential witness. The witness is entitled to know within reasonable limits the matters about which he is to be examined, and there comes a point at which a letter of request may be so vague that it will not be permitted. The wide-ranging list of topics attached to the letter of request, and the fact that many of them were unrestricted in terms of subject-matter or date may often lead to the conclusion that the examination sought in the letter of request is not one to which the court should order.

THE LESSONS

Letters of request are a good example of where it pays to respect cultural differences! A large body of law has developed as a consequence of overseas practitioners who have assumed that a foreign Order will be translated into an English Order on the basis of a recognition of the appropriate jurisdiction. Were it as simple as that.

With good drafting by experienced English counsel at the initial stage (ie before the application is made for the issue of the letter of request in the foreign court) it should be possible to anticipate and deal with most potential pitfalls. Involvement of English counsel too late in the process could simply add an additional level of cost at too late a stage. It is almost impossible to put the clock back if the original letter of request is defective.


© Bracher Rawlins LLP, 2007