Ask not what you can do for the English Courts, but what the English Courts can do for you…

In this series of briefing notes, we dip into the practical aspects of how a party might still be able to call upon the support of the English Courts even in respect of civil/commercial claims that are being pursued in other jurisdictions.

First up to be given the treatment in this inaugural note of the series are letters of request (or letters rogatory).

Letters of Request

These are formal requests for assistance sent by a judge of one jurisdiction (the requesting court) to the judges of another (the receiving court) seeking help with matters that are properly within the jurisdiction of the receiving judges.

There are several ways in which such a request can be acted upon by the English Court^[1], but we have seen letters of request utilised most regularly where a party to legal proceedings in the home jurisdiction needs to obtain evidence (including documents) from a potentially unwilling witness^[2] based in England & Wales.

While each home jurisdiction likely will have its own rules of process for the issue of letters of request^[3], in practical terms the home court, usually upon the application of a party to the main proceedings, will send a letter of request through to the English Courts.^[4] In dealing with such a request the English Court will apply its own rules of legal procedure and the statutory provisions of the Evidence (Proceedings in Other Jurisdictions) Act 1975.^[5]

However, unless there might be good reason not to do so we would suggest anyone considering this route first should invite the proposed witness voluntarily to take part in any proposed evidence gathering. You may get no reply of course, or there may be a genuine concern that the witness might try to evade proceedings once they know about them, so it might be better not to tip them off. Each case is of course different, but the English court tends to look far more favourably on a party who has at least attempted a voluntary approach rather than going straight to seeking an order by way of a without-notice application.^[6] Clearly though if a witness is not willing to help, or even if they are willing but there are some official formalities that may be required by the home jurisdiction when taking admissible evidence for use in its legal process, an application to the English Court will be your next port of call.

Giving Effect to a Letter of Request

To obtain a court order a party must apply to the Senior Master of the Queen's Bench Division of the English High Court. While the Court can appoint Treasury Solicitors to seek such an order for you, it must be remembered that these will not be your lawyers. It is therefore more typical for a party to instruct its own English solicitors to apply on its behalf. Such an application must be supported by evidence in the form of a witness statement, and you must also include an original, signed copy of the letter of request; a detailed statement of the issues relevant to the proceedings; a detailed list of the documents or items being sought, and/or a list of questions/topics it is proposed a witness will be asked about. You will also provide a draft of the terms of the court order being sought, and this will set out proposed dates and times for the provision of any evidence as well as any other formalities (e.g. the identity of an Examiner where oral evidence is being sought from a witness). All documents submitted will need to be in English or be accompanied by translations.

As already alluded to above, an application is generally made ‘without-notice’ being given to the relevant witness, and an initial order can usually be obtained without the need for a court hearing. That said, there is then still a period (usually a week) during which a granted order may be challenged (whether in its entirety or just some of its terms).

The Examination

In the event oral evidence is being sought from a witness the Court will appoint an “Examiner” to oversee the process. The English Court maintains a list of approved candidates for this role who are typically experienced, senior lawyers. The party seeking an order therefore should already have identified a suitable and available candidate ahead of time so that they can be named in the draft order filed with the court.^[7] However, an Examiner is not a ‘judge’, and often plays a relatively limited role – in our experience they typically oversee the proper running of an Examination, including enforcing any safeguards that may have been provided for in any court orders, and administer logistical matters. On occasion they might also rule on very limited matters of English law or procedure that may arise e.g. the admissibility of documents not provided in advance to a witness, and/or limited issues of privilege.

During an Examination, the evidence is gathered in the same way as it would be in an English High Court trial, but the process usually will be governed by a hybrid of (i) English law and procedure, and (ii) the procedure of the home court which has made the request. The parties therefore will have English legal representation, but any questioning of the witness typically will be undertaken by the parties’ lawyers who are acting in the main legal action. Perhaps counterintuitively the lawyers for the party that has made the request for evidence will start first and conduct open questioning by way of examination-in-chief of the witness.  The opposing party is then able to cross-examine should they so wish. That said, it is still possible in some instances for the party seeking the evidence also to obtain an order permitting cross-examination.^[8]

The witness’ oral evidence can be video recorded, if appropriate, but it is always transcribed. The transcription then forms the basis of the evidence to be forwarded to the requesting court for use in the main legal action. However, before any transcript is sent to the home court the witness (and other parties who were in attendance) are usually given an opportunity to review the transcript and can offer corrections.

Key Considerations

To increase the chances of successfully enforcing a letter of request it is crucial that the following matters are addressed in either or both the letter of request and any subsequent English application. Of course, should you find yourself on the other side of such an application, any deficiencies in these areas might just as well form the basis for successful objection to the enforcement of a letter of request.

• Civil/commercial litigation must be ongoing, or robust evidence produced to show that it is ‘in contemplation’. 
• The evidence being sought must be ‘testimony’ i.e., evidence to be used at trial; preliminary matters and other hearings will not suffice.
• An English order can be sought only in respect of matters that could and would be ordered in English proceedings. It is therefore possible that remedies that otherwise might be available in a home court will not be capable of being the subject of an order in England.
• A witness will only ever be asked to produce documents that (a) can be shown to exist, and (b) that are in or are likely to be in the witness’ possession, custody, or control. Clear evidence will be needed to demonstrate the basis for any assumptions and/or assertions made in this context.
• Similarly, a witness will only ever be asked to provide oral testimony on matters that it can be shown they are able to provide.
• Unsurprisingly a great deal of attention needs to be paid to the actual requests for evidence, information and/or documents sought in the letter of request. These must not be too vague or wide or they risk being deemed invalid and/or ‘oppressive’. Accordingly, general or broad discovery type requests and those sometimes characterised as ‘fishing expeditions’ will not be granted. There needs to be a level of specificity and particularisation of the documents, or the topics or questions to be sought from or put to the witness. While it is true that the English Court might still feel able to grant a more limited order, and therefore can in some circumstances just strike-out those elements of a request deemed too wide (provided that doing so does not otherwise impact the integrity of the overall request)^[9], it nevertheless will not redraft or supplement a deficient request.
• Relevance of the matters at the heart of a request is also crucial. An order can only be obtained to compel the production of evidence that is relevant to the issues in the ongoing litigation before the home court. It is therefore crucial that this too is apparent from the evidence filed with the application, and ideally is clear from the face of the letter of request itself. That said, the English court will usually proceed on the basis that in issuing a letter of request the home court must have assessed the matters being sought as relevant to the action before it, and there is usually a high threshold to be met before an English judge will refuse to enforce a letter of request, or set aside an initial order to do so, on such a basis. Nevertheless, an express statement in a letter of request to the effect that the referring Judge has considered and determined relevance still will be of great assistance to a party when it comes to make its application in England.^[10]
• When setting the proposed date and time for an Examination, some thought should be given to the allowance of adequate time for the witness to receive copies of any relevant documents (ideally well in advance), to aid their preparation. Exactly how long is a question of balancing the interests of the requesting court and the interests of the witness. Therefore, this issue often will be dependent on matters such as the parties involved, the complexity of the issues in dispute, and the volume of any documentation to be provided.

Given the importance of these matters our experience is that it often is advisable for the party seeking assistance from the English Courts to bring English solicitors on board at the outset, including even to assist with the drafting of the terms of any letter of request before it is sought from the home court. This allows for potential issues that might risk derailing matters when before the English Courts to be anticipated and addressed.

Additional Considerations

Now of course should you find yourself on the other side of a letter of request, whether as the witness or an interested party, in addition to scrutinising the key matters set out above there are some other matters also to bear in mind. These include:

• You only have seven days to challenge an English court order enforcing a letter of request, but it may be possible to agree an extended period.
• If possible, do not wait until an English order is obtained to involve English solicitors, but rather do so once you become aware of the possibility i.e. as early as possible in the process. This will provide more time for consideration of the letter of request and the nature of any assistance/evidence being sought, and allows for correspondence and maybe even agreement on the terms of any cooperation, perhaps even removing the need for a formal English order to be imposed.
• If you have the opportunity, do consider whether some contentious issues (e.g., as to the width and/or relevance of any requests) might be usefully raised with the home court at an initial stage i.e. before it issues a letter of request, rather than waiting to argue such matters before the English court.
• Consider whether fraud is or may have been alleged against the witness, and/or are there any concerns arising from related proceedings and/or criminal or regulatory matters? Is there any risk of a witness’ interests being prejudiced or exposed through questioning to additional or even criminal liability? In exceptional cases such features might support an argument that a request is oppressive.
• Do or might any issues of privilege arise? A witness is entitled to rely on the protection of any privilege available to them under both English law and/or that of the home court which has made the request for the testimony.
• Finally, might it be argued that the letter of request, and therefore the evidence being sought, is or might be part of a much broader strategy with an ulterior motive e.g., is it possible the evidence being pursued is for some purpose other than the advancement of a party’s position in the specific legal proceedings identified in the letter of request?

In Conclusion

In practice then, while it remains a matter entirely for the discretion of the English Court whether to comply with a letter of request, provided (i) a request is suitably focused on evidence of relevance to the main proceedings, (ii) it is clear that the targeted witness is the right person to provide such evidence, and (iii) proper thought has been given to appropriate protections and any allowances for the witness, the English court should generally be expected to err in favour of exercising its discretion and make the order being sought.

Where English lawyers like the Brown Rudnick team can therefore add real value for clients, is in ensuring the matters that will be closely scrutinised by an English Judge are fully considered at as early a stage in the process as possible, and then either help to address them or to mount a robust attack, depending on which side of the debate we may be acting.

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^[1] i.e., the taking of evidence from witnesses (in writing or orally by way of a live examination of a witness); the production of documents; the inspection, preservation, and custody of property; the taking of samples from, and the carrying out of experiments on, property; and the medical examination of, and testing of blood samples of, a person

^[2] This can also include a company

^[3] This also may include requirements of specific conventions that may deal with the taking of evidence between signatory states

^[4] In many instances this can be sent direct to the Senior Master of the Supreme Court c/o the Foreign Process Section of the High Court, but depending on the applicable principles it instead may need to be sent via diplomatic channels

^[5] The E(POJ)A 1975, which gives effect to The Hague Convention on the taking of Evidence Abroad in Civil or Commercial Matters, 18 March 1970

^[6] Productivity-Quality Systems Inc v Cybermetrics Corporation [2019] EWHC 2518 (QB)

^[7] The party seeking the Examination will be liable for the Examiner’s costs, which are expressed in terms of hourly rates, as well as any other costs of the Examination e.g. location hire, transcription, and video recording.

^[8] Aureus Currency Fund and Credit Suisse Group AG v Mitesh Parikh [2018] EWHC 2255 (QB)

^[9] The so-called ‘blue pencil’ approach

^[10] Atlantic Holdings, Inc & Anor v Sovereign Wealth Fund & Ors [2019] EWHC 319 (QB) – NB:// Brown Rudnick acted in this matter on behalf of one of the Respondent witnesses.