If your witness is located in a different jurisdiction, the Courts in England and Wales cannot compel them to give evidence at trial. So, how can you ensure that the witness gives evidence?
The approach you will need to take depends on whether you have a willing or unwilling witness. In the case of a willing witness who is not opposed to travelling to attend Court, it may be straightforward to arrange for them to travel to England and Wales to give evidence or, alternatively, you could arrange for their evidence to be given by video link or deposition.
However, if the prospect of giving evidence via video link, rather than in person, is insufficient to encourage co-operation from an unwilling witness based abroad, the Court can order the witness to give evidence and for their evidence to be transmitted to the requesting Court for use in judicial proceedings.
There are certain rules that must be followed for a witness to give evidence from abroad and for evidence to be provided via video link. Assistance from a local law firm in the relevant jurisdiction can be beneficial to help navigate the rules and compel the witness to provide evidence.
In this note we explain the process and provide some practical tips for obtaining evidence via video-link from witnesses based in a country which is party to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention).
The legal framework – initial requirements to establish
The process for obtaining evidence by video link is dealt with in Annex 3 of CPR Practice Direction 32 (PD 32).
Not all foreign governments will be willing to allow their nationals (or others in their jurisdiction) to be examined before a Court in England or Wales by video link. Therefore, the following initial steps will need to be taken to check the requirements for obtaining evidence by video link from a foreign jurisdiction:
- First, enquiries should be made with the Foreign and Commonwealth Office, namely the TOE Unit at TOE.Enquiries@fcdo.gov.uk, to ensure that no objections are raised at a diplomatic level by the country from which evidence is to be taken. The party seeking evidence from abroad must be able to inform the Court about these enquiries and their outcome.
- The TOE Unit will confirm what information it holds regarding the giving of evidence from the jurisdiction in question. This will be relatively straightforward in respect of counties that are party to the Hague Evidence Convention, which provides a framework to facilitate and streamline the taking of evidence abroad.
- Where the foreign jurisdiction is a party to the Hague Evidence Convention, the Foreign Process Section in the Royal Courts of Justice (being the Central Authority in England and Wales for the purposes of obtaining evidence abroad) should be contacted at foreignprocess.rcj@justice.gov.uk to confirm whether there are any formal arrangements required before the taking of evidence by video link can proceed.
- The Foreign Process Section should confirm the formalities and steps required to obtain evidence via video link from the foreign jurisdiction, including the steps to be taken in England and Wales, and steps which the foreign Court will require.
Obtaining permission – at home and abroad
Step1: obtaining permission in England and Wales
- To give evidence via video link (whether from abroad or otherwise) the Court's permission is required, pursuant to CPR 32.3.
- If all parties consent to evidence being given via video link, permission can be sought by letter, fax or email. However, if the other parties do not consent, an application will be required for a direction that evidence can be obtained via video link.
- Along with the Application Notice, draft Order and witness evidence in support, the applicant will be required to file a Letter of Request. This is a request by a Court in one jurisdiction to a Court in another jurisdiction to order the taking of evidence and transmission of that evidence to the requesting Court. The applicant may also need to include details of the questions it intends to ask the witness via video link at trial.
- The applicant should notify the listing officer of the intention to seek such a direction and, to support the application, enquire as to the availability of video conferencing equipment for the period it will be required. Details of the enquiries made with the TOE Unit and Foreign Process Section should also be included in the application.
- If the Court grants permission, practical arrangements will need to be made for the giving of evidence via video link and PD 32 gives some guidance in this respect. Note that a sealed Order from the Court is also likely to be required as part of the information required by the foreign Court.
Step 2: obtain permission in the foreign jurisdiction
Once permission has been obtained from the English Courts, it is likely that further steps will need to be taken in the jurisdiction in which the witness is based, which should be confirmed by the Foreign Process Section during the initial stages referred to above.
If a lawyer local to the witness is instructed to assist with the process for obtaining permission from the foreign Court for the giving of evidence via video link, they may be able to expedite the process or advise as to any alternative options available.
- Once permission has been obtained from the English Courts, the Foreign Process Section must send a request for evidence to be taken via video link to the corresponding Central Authority in the relevant Hague Evidence Convention country.
- In order for the Foreign Process Section to send the request, it will need to have been provided with the following documents:
- A covering letter with contact details for the person making the request.
- A sealed Order from the Court where the trial is taking place which gives permission for the witness to give evidence via video link.
- The Letter of Request, which may have bene sealed by the home Court; and
- Form PF78 Solicitor's Undertaking as to Expenses, which confirms that the requesting party will be responsible for the expenses incurred in relation to the request.
- The Letter of Request will be reviewed, approved and signed by the Senior Master of the Foreign Process Section. It will then be sealed and the Foreign Process Section will send it to the relevant Central Authority of the Hague Evidence Convention country for the foreign authority to grant permission.
- Once permission is granted by the foreign Court, arrangements will need to be made in both the home Court and the foreign Court for evidence to be taken by via video link.
Practical tips and considerations
- Plan ahead - the process to obtain approval from a foreign Court can be time consuming and may cause delays. Consider commencing the process as early as possible.
- Use your network – consider instructing a law firm local to the witness who may be able to assist with local laws, expedite the permission process or advise as to other options available. If a witness remains unwilling to give evidence at trial, even once arrangements have been made for evidence to be given via video-link, advice should be sought from local law experts on the options available to summon or compel a witness to give evidence.
- Time difference – think about the local time where your witness is located and whether any special measures may need to be taken for them to give evidence.
- Test video conferencing equipment – test your equipment before the witness gives evidence to avoid technical difficulties on the day. Also consider the use of recording equipment both at the local and foreign site, for which permission of the respective Courts will be required. It could also be helpful to have someone on hand at the foreign Court to assist with the video link transmission.
- Check the applicable oath/affirmation – some countries may require that any oath or affirmation to be taken by a witness accords with local custom, rather than the usual form of oath or affirmation used in England and Wales. The party arranging the video link must make such enquiries and be able to inform the Court of the enquiries made and the arrangements in place.
- Documents – if it is likely that you will refer the witness to documents, think about how these will be made available at the remote site and ensure that facilities are in place to send documents to the remote site during the video transmission.
As PD 32 states, the use of video conferencing technology may be a convenient way of dealing with any part of proceedings, potentially with considerable savings in time and cost.
Whilst it is no substitute to having a witness physically present in Court, and permission is not guaranteed, it can assist parties to litigation who may have thought that their prospects of success are weakened as their key witness no longer resides in the jurisdiction.
If you are interested in understanding more about our international commercial litigation expertise, please do not hesitate to contact us.
