Introduction
Consider the situation where plaintiff X is bringing proceedings in a US Court against defendant Y, but party Z, who holds critical evidence or potential evidence, is outside the jurisdiction. What kind of discovery or evidence gathering procedures can be ordered by a foreign court against Z in aid of the US proceedings? This article considers, from the perspective of England and Wales ("England" for short), the circumstances in which the High Court in London can, as a foreign court, help such plaintiffs obtain evidence from individuals or companies located in England, in support of overseas proceedings.
The concept of mutual cooperation between states on gathering evidence has been around for some time. The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970 (usually referred to as the "Hague Evidence Convention") was ratified by the USA in 1972 and by the UK in 1976. As at today's date there are over 60 other countries who have also ratified the Convention. The UK implemented the Hague Evidence Convention into its domestic law by way of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the "Act"), which governs the regime today. While the UK was a member of the European Union, the Taking of Evidence Regulation (Regulation (EC) 1206/2001) applied as between EU member states, but since the end of the Brexit transition period on 31 December 2020, that has ceased to apply in England.
The Act, and the relevant sections of the Civil Procedure Rules (which govern court procedure in England), lay down the process by which the English Court can assist foreign courts in response to a letter of request. A letter of request (a "Request") is the means by which a foreign court asks the English Court to order the taking of evidence and for that evidence to be transmitted to the requesting court. The regime set down by the Act is, generally speaking, restrictive in nature. This article identifies the key limits to a Request being entertained by the English Court, and notes the criteria and process that must be followed.
General Principles
The English Court has no inherent jurisdiction to act in aid of a foreign court; its ability to do so derives exclusively from the Act. Whilst there is no duty per se to comply with a Request, the Court has observed that "it is the duty and pleasure of the [English Court] to give all such assistance as it can to the requesting court within the limits imposed by the [Act]" (USA v Philip Morris Inc [2004] EWCA Civ 330 at [16]).
The Act specifies that the evidence sought by way of a Request first has to be for the purposes of "civil proceedings" (section 1(b) of the Act). 'Evidence' to be taken pursuant to the Act has been interpreted to mean exclusively evidence for trial. This means that the Act cannot be used, for example, to obtain evidence for interlocutory proceedings or bankruptcy/liquidation proceedings where there will not be a 'trial' (final merits hearing) in the English procedural sense of the word. Civil proceedings also exclusively means court proceedings, and a Request cannot be validly made in support of foreign arbitration proceedings (although there are other routes under the Arbitration Act 1996 for examination of witnesses in support of foreign arbitration, which are outside the scope of this article).
The type of evidence that may be ordered under the Act is typically examination of witnesses and/or production of documents. The Court, however, has a broad discretion (subject to the restrictions already mentioned), and the Court can make provision for obtaining evidence "as may appear to the court to be appropriate for the purpose of giving effect to the request" (section 2(1) of the Act). By way of specified examples, in addition to examination of witnesses and production of documents, section 2(2) of the Act provides that the Court, in response to a Request, could make provision 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 samples of blood from any person.
A crucial limiting factor for any Request in England is that the English Court has no power to order evidence to be taken that could not itself be ordered in English civil proceedings (section 2(3) of the Act). In practice, and most importantly for plaintiffs in courts such as in the US where discovery is a crucial step in proceedings, this means that the evidence that can be ordered to be produced is limited to evidence to be used in proof for trial. In other words, the Act cannot be used for pre-trial disclosure or disclosure that is of a train of enquiry nature: no fishing expeditions are allowed. If the Request seeks evidence in broad terms such that it takes on an investigatory nature, then it will be refused. For this reason, it is generally prudent to ensure, when asking a domestic Court to formulate a Request, both that the evidence is in fact relevant to issues at trial and that the Court confirms as much in the Request. Although the English Court will not take the requesting Court's assessment at face value, deference to the requesting court as a matter of judicial comity will mean the question of relevance of the requested evidence to the issues in the underlying claim is more likely to be accepted when explicitly referenced in the Request. If the requesting Court does not address the question of relevance at all, then the English Court will have to undertake that exercise and—given the nature of the legislative regime—is likely to view it through a restrictive lens.
Witness Evidence / Deposition
In the case of a request for a witness to give evidence by deposition, the test is (consistently with the principles already referred to), "whether the intended witnesses can reasonably be expected to have relevant evidence to give on the topics mentioned in the [Request], and second whether the intention underlying the formulation of those topics is an intention to obtain evidence for use at the trial or is some other investigatory, and therefore impermissible intention." (First American Corporation v Zayed [1999] 1 WLR 1154). To be clear, the fact that the party procuring the Request does not know in advance what the witness will say does not in itself make it a fishing expedition. By way of contrasting examples, in Land Rover North America Inc v Windh [2005] EWHC 432 (QB) the Request both "state[d] and demonstrate[d] that the proposed witness ha[d] potential evidence to give which [was] of relevance to the issues to be tried" and "indicate[d] that the purpose in making the request was to obtain evidence to be used at trial". The Order made for oral depositions on the basis of that Request was upheld on appeal. By contrast, in Smith v Phillip Morris Companies Inc [2006] EWHC 916 (QB), the Request in that case was of a "very wide ambit" and "range[d] far wider than [...] the explanation about the significance of [the intended deponent's] testimony could possibly justify". Specifically, and by way of example, it was observed that "all the documents [...] were dated before the start of the pleaded conspiracy, and [...] the topics for examination are far wider than London meetings of the kind [the intended deponent] is said to have had". For this reason, the Order implementing the Request was set aside on appeal.
The above demonstrates that care must be taken when defining the scope of the evidence requested. Whilst it has been fairly observed that "the width of a request may be an inevitable consequence of the complexities of the issues and of the witnesses involvement in them" (First American Corporation v Zayed, [1999] 1 WLR 1154), particularly when a Request is made by a Court in a jurisdiction such as the US which is accustomed to broad discovery processes, the restrictive approach of the English Court must be kept in mind and reflected in the Request if it is to avoid the risk of being set aside as being too broad.
In addition to any Request for oral testimony not being a fishing expedition and having relevance to issues for trial, any Request for such evidence must also not be oppressive to the witness. When assessing an allegation of oppressiveness of a Request, the Court will balance the legitimate requirements of the foreign court and the burden the requirements may place on the intended deponent. Whether a Request is oppressive will turn on the facts of each case, but it is worth noting in particular that "the court will not allow uncertain, vague or other objectionable requests to be implemented. A witness is entitled to know within reasonable limits the matters about which he or she is to be examined" (per Lord Woolf M.R. in State of Minnesota v. Philip Morris Inc. (unreported), 30 July 1997). Thus, width, uncertainty, or vagueness of a Request may lead to it being assessed as oppressive and being liable to be set aside.
Oppression that may arise as a result of external factors, can often be neutralised by appropriate protections being in place. It was noted in Compagnie des Grands Hôtels d'Afrique v Purdy [2021] EWHC 1031 (QB) that the Senior Master in that case had "held [at first instance] that not every risk of oppression had to be averted: it was sufficient on the facts of this case that the risk of oppression did not have to be avoided provided that it could be alleviated to a sensible and acceptable degree" and this was approved as a matter of principle by the High Court on appeal. In that case, the intended witness was also the subject of a criminal investigation in Morocco and which, it was said, could lead to evidence being given that might be used against her at a criminal trial. The combination of a Protective Order and undertakings given by the applicant was deemed sufficient to alleviate the risk of oppression to a "sensible and acceptable degree". Similarly, in Productivity-Quality Systems Inc v Cybermetrics Corp [2019] EWHC 2518 (QB) it was held that despite the prospect of confidential source code being disclosed to a competitor, such concerns could be allayed by a Protective Order being sought in the foreign (US) proceedings, and by undertakings given to the English Court in the Request proceedings. The mere prospect of disclosure of confidential materials is accordingly not oppressive enough to prevent disclosure being ordered, if appropriate protections can be put in place.
Production of Documents
Documentary evidence is the second type of evidence most commonly sought pursuant to a Request. It has already been noted earlier that any evidence sought by way of a Request has to be evidence for trial, and cannot be of an investigatory nature (i.e. akin to discovery). Section 2(4) of the Act and the caselaw makes clear that the restrictive nature of the regime under the Act goes further in this context. When it comes to documentary evidence, an Order in response to a Request cannot require someone "to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power" (section 2(4)(a) of the Act) nor "to produce any documents other than particular documents specified in the order[,] being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power" (section 4(2)(b) of the Act). The former criterion, in short, denies any obligation to give any "disclosure" of documents in general terms (in the strict sense, distinguished from the inspection of disclosed documents). The latter subsection imposes a strict requirement of particularity (the "Particularity Criterion").
The House of Lords (formerly the final court of appeal in England, prior to the establishment of the UK Supreme Court) has previously opined that, in relation to the Particularity Criterion, "a strict attitude is to be taken by English courts in giving effect to foreign requests for the production of documents by non-party witnesses" (Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] A.C. 547 per Lord Wilberforce at 609), and "[w]hat is called for is the specification of "particular documents" which I would construe as meaning individual documents separately described" (Ibid. per Lord Diplock).
The subsequent caselaw on the Particularity Criterion was summarised in the more recent case of Galas v Adere [2018] EWHC 2366 (QB). Therein, it was reiterated that the test to be applied when considering the Particularity Criterion was the two-fold test as described by Lord Fraser in Asbestos Insurance Coverage Cases [1985] 1 W.L.R. 331. Specifically, the test is "[f]irst, what must be specified in the order is either individual documents separately described, or a compendious description of several documents provided that the exact document in each case is clearly indicated. Secondly, the documents must be "actual documents about which there is evidence that they exist or did exist and are likely to be in the possession of the addressee"." (Galas, at [31]). Drawing a distinction between a compendious description (allowed) and a class of documents (not allowed) is not immediately obvious for the purposes of assessing which side of the line a Request might fall. Lord Fraser gave an example of the dividing line in the following terms: "an order for production of the respondents' "monthly bank statements for the year 1984 relating to his current account" with a named bank would satisfy the requirements of the paragraph, provided that the evidence showed that regular monthly statements had been sent to the respondent during the year and were likely to be still in his possession. But a general request for "all the respondent's bank statements for 1984" would in my view refer to a class of documents and would not be admissible." This emphasises that language of the type "all X and Y between A and B", as typically seen in discovery and disclosure requests, will not be permitted when it comes to a Request pursuant to the Act.
Procedural Considerations
From a practical perspective, the party seeking the evidence that is the subject of a Request must apply to the English High Court and ask the Court to implement that Request by way of an Order. Such application may be made without notice to (i.e. without serving it on) the person from whom evidence is sought (as set out in CPR 34.17(1)), and will generally be dealt with by the Senior Master without the need for a hearing. That said, more recently the Senior Master has observed that the "preferable course" is for the proposed witness to be contacted directly to see if evidence can be provided on a voluntary basis, and it is only if it is believed the witness may try to evade service or in fact doesn't respond that a without notice application would be appropriate. As such, seeking voluntary cooperation in the first instance now appears to be the preferable way to proceed unless there are circumstances that make that impractical or undesirable.
If an application is made without notice, and if an Order is granted, then the recipient has the opportunity to apply to set aside the Order. If the application is made on notice, then there will be a hearing (unless the application is uncontested or the parties agree for it to be dealt with on paper) before the Senior Master gives any Order.
It is worth bearing in mind that if the recipient of the Request is to be a corporate entity, then whilst a company can be ordered to produce documents via its proper officer, it cannot be ordered to give witness evidence (Penn-Texas Corporation v Murat Anstalt [1964] 1 QB 40). In circumstances where witness evidence is required, it is therefore necessary to specify a particular intended deponent in order for the Request to be valid. Procedural guidance from the Treasury Solicitor's office suggests that if a Request seeks evidence from (for example) "the representative of X Ltd", then the company nominated must be asked to nominate a person to give the evidence. The flip side to this, however, is that a Request will not be granted (absent an individual being specified) if the company in question refuses to nominate an individual. Without a specific person being nominated in the Request, a recalcitrant company could thereby frustrate a plaintiff's Request by refusing to nominate an individual.
Overall, parties to foreign litigation must have their expectations managed as to what type and scope of evidence could be ordered by the English Court pursuant to the Act. For all the reasons set out above, whilst the regime is still a relatively powerful tool, it is limited in its scope. The key message for foreign litigants looking to make use of the Act is that the English Court will not order wide ranging discovery/disclosure against parties in England, even if such processes are available in the domestic jurisdiction where the litigation is taking place. If such discovery/disclosure processes are needed, foreign plaintiffs may need to explore other routes in their domestic court, e.g. for service out of the jurisdiction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.