Letters of request: how to obtain the English evidence you need

The recent judgment in Atlantica Holdings Inc v Sovereign Wealth Fund Samruk-Kazyna JSC explains the principles that English courts apply when dealing with requests for evidence from courts in other jurisdictions. Below, we explain the process and some potential issues that can arise, and give some practical tips to help ensure it goes as smoothly as possible.

What are letters of request?

Letters of request (previously known as “letters rogatory”) are requests by the courts of one jurisdiction for the assistance of the courts in another jurisdiction in obtaining evidence for use in legal proceedings. A multilateral system of judicial co-operation in this regard was established by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, of 18 March 1970. 62 states are signatories. The United Kingdom implemented that convention by enacting the Evidence (Proceedings in Other Jurisdictions) Act 1975.

Between member states of the European Union, including the United Kingdom at the time of writing, such judicial co-operation is governed by the Taking of Evidence Regulation (EC) 1206/2001. This article focusses on how English courts deal with inward letters of request from non-EU countries, such as the United States.

What evidence can be requested?

Pursuant to a valid letter of request from a foreign court, the English court can make provision for:

• The examination of witnesses, either orally or in writing
• The production of documents
• The inspection, photographing, preservation, custody or detention of any property
• The taking of samples of any property and the carrying out of any experiments on or with any property
• The medical examination of any person
• Without prejudice medical examinations mentioned above, the taking and testing of samples of blood from any person

How is evidence requested?

The foreign court must send the letter of request to the Foreign Process Section of the High Court at the Royal Courts of Justice in London.

The foreign litigants should instruct English solicitors to make an application to the English court to give effect to the letter of request. A witness statement must be filed with the application in support of the application.

The witness statement should contain:

• A copy of the sealed letter of request
• A detailed statement of the issues relevant to the proceedings
• A detailed list of documents or items being sought
• A draft order
• Where necessary, a translation into English of all documents to be served on the witness

What issues might arise?

Litigation not contemplated. The English court will only grant the request if foreign civil litigation proceedings are already instituted or such institution is contemplated. The foreign litigant will therefore need to be able to evidence this to the best of their ability, however the precise meaning of “contemplated” remains to be decided by an English court.

Allowable in English courts. The English court can only make an order that could also be obtained in English civil proceedings. Procedures for obtaining evidence that are available in the foreign jurisdiction may not be available from the English court. The US procedure for depositions by way of general discovery (as opposed for obtaining evidence for use in trial) is an example.

Control of the evidence. The court will only ask a witness to produce the documents specified in the order (individual documents, not a class) and such documents must appear to be or be likely to be in the witness’ possession, custody or power. The witness statement filed in support of the application should explain how this requirement is met.

No “fishing expeditions”. There can be no order for general disclosure of documents or questioning on wide ranging topics. The wording of the order requested from the English Court must be limited to particular documents or particular topics or questions specified in the letter of request.

English courts routinely receive non-compliant and/or overly broad letters of request from overseas courts seeking general discovery, especially from the United States. The court will consider the nature and scope of the request carefully. For example in the Atlantica case, where two non-party witnesses where requested to give oral evidence in the form of a deposition, Knowles J responded to submissions stating the topics and questions requested to be asked at examination was too wide by making clear that such questions need to be specific:

“If the width of the topics for questioning is too wide, or uncertain or vague, it may be refused on the grounds that it is oppressive to the witness… Also, such a request might lead to the inference that, ‘the letter of request was designed to elicit information which might lead to the obtaining of evidence rather than to establish allegations of fact, and that would amount to an impermissible fishing expedition’

If the request is considered to be too wide ranging, the court retains a discretion whether to grant the request and can ‘blue pencil’ - but not redraft - the request. The court has no power to redraft a question or supplement the request because it considers it expedient to do so ...”

No consideration of relevance. The English court will not order the production of evidence that it considers irrelevant to the issues in the foreign litigation.

In relation to points focusing on allegedly irrelevant evidence, the Atlantica judgment makes clear that the English court will, as a starting point, trust the requesting court’s assessment of relevance. However, where the topic of relevance has obviously not been considered by the foreign court, then it should consider the question of relevance for itself.

The Atlantica case highlights the importance of a statement in the letter of request referring to the relevance of the evidence requested to the foreign litigation.

Depositions

Depositions allow a party to examine a witness outside of a court prior to the relevant hearing. Deposition evidence is more frequently procured in the United States, and so US litigants often request that the English court order a deposition from a witness in England. The English courts have the power to compel witnesses within its jurisdiction to attend an “examination” in which a lawyer and/or an “examiner of the court” will question a witness as if they are at trial (examination-in-chief, re-examination and cross-examination if the other party to the proceedings attends).

The transcription of this oral evidence (the “deposition”) will then form the evidence for the purposes of the foreign litigation. The examiner (taken from a list of barristers or solicitor advocates appointed by the Lord Chancellor) and a list of questions or the subject matter of questions to be put to the proposed deponent should be identified in the application to the English court. The court will be careful to limit the scope of examination to matters relevant to the issues in the case, to be used for the purpose of trial, and not by way of a fishing expedition.

Practical tips

This is a complex area. If you are considering applying for a letter of request to be actioned in England, some tips for helping the process go as smoothly as possible include:

1. Show us your proposed letter of request in draft before you approach your local court. We can check it to ensure what is being requested is likely to be approved by the English court, for example by making sure that any requests for documents or testimony are compliant with English rules.
2. Best practice is to have the letter of request drafted by English lawyers before it is even submitted to the requesting court. It is better to address any issues before your local court issues the letter of request, because the English court will be limited to making an order for what is stated in the letter of request. Missing out on the evidence you need because of what is or is not in the letter of request can be costly, as the time it takes to obtain a new letter of request and have it sent to the English court for consideration can be very lengthy.
3. Overseas applicants will need to engage an English solicitor to prepare and make the application to give effect to the letter of request. Your application will need to be supported with written evidence in the form of a signed witness statement, which will need to thoroughly address the legal basis and purpose of the letter of request as well as all of the factors relevant to the exercise of the English court’s discretion.
4. Consider carefully how the evidence you are asking for is relevant to the issues in the pending or contemplated litigation, and if possible have your local court state in the letter of request its assessment that the requested evidence is relevant.
5. If you are applying for a deposition to be obtained by an examination, consider whether there is a more cost effective alternative. Examinations are often expensive and obtaining the evidence by way of a written statement of the testimony, or the production of documents, may be cheaper or more effective.
6. If you are the recipient of an order made implementing a foreign court’s request for evidence, seek legal advice as soon as possible, as letters of request are often open to challenge.
    

For further information in relation to any aspect of obtaining evidence from the UK, please contact Andrew Tobin, Eric France or Jonathan Christy.