Taking of Evidence in Civil and Commercial Matters under the Hague Convention

In the world of cross-border disputes and in a post-pandemic era, the taking of evidence from other jurisdictions, via video link or other means has become commonplace. The process linked to this is often overlooked.

The procedural requirements under Practice Direction 32 of the Civil Procedure Rules and specifically the practice note set out at page 1171 of the 2022 White Book must be complied with.

The 2019 judgment in Atlantica Holdings Inc v Sovereign Wealth Fund Samruk-Kazyna JSC clearly sets out the principles that English courts apply when dealing with requests for evidence from courts in other jurisdictions.

We summarise the process below with some practical tips to enable your witnesses to give oral evidence by video link from the jurisdiction where they reside.

The first recommended step will be to get in contact with the foreign authority where the witness resides or will be located during the period of the trial or hearing to enquire whether permission for the direct taking of evidence via video link in their country is required.

The letter of request

If the foreign authority has no objection, permission will be required. The second step will be the letter of request. This letter is sent by the courts of one jurisdiction to the courts of another asking for assistance in obtaining evidence for use in legal proceedings.

The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters dated 18 March 1970 implements a system of judicial cooperation and reciprocity amongst 91 members. The United Kingdom enacted the Evidence (Proceedings in Other Jurisdictions) Act 1975 to implement the provisions of the Convention.

The request to acquire evidence via video link from witnesses residing in a Hague Convention country must come from the central authority (Foreign Process Section) and will be then sent to the relevant central authority (the Ministry of Justice) in accordance with The Hague Convention.

Foreign process requirements

To make such a request, the formal arrangement is to submit the following documents:

1. Covering letter with an overview of the request and your contact details,
2. Sealed order from the High Court or District Registry in England and Wales that covers the area where the trial is taking place, giving permission for the witnesses to give evidence via video link or obtaining documents.
3. Draft letter of request
4. Certified translation if necessary
5. Form PF78 – Solicitor’s Undertaking as to Expenses (rule 34.13(6)(b)) — The Foreign Process Section (FPS) cannot provide details of expenses that might be incurred in advance.  In most cases, no expenses are incurred. If the requested foreign state requests payment of expenses, the Foreign Process Section will wherever possible notify solicitors before accepting such expenses.

Once the request is received (hard copies by post) and processed, it will be referred to the Senior Master to review, approve and sign the letter of request.

Finally, the court will seal the letter and send it to the (Hague country) authority. This usually takes five to seven working days. The delays for the foreign authority will take to grant permission will vary.

Potential issues

Following the above process is all the more important as some issues may arise.

In the recent case of Evans v R&V Allgemeine Verischerung AG [2022] EWHC 2436 (QB). On the second day of trial, as it became clear that two of the defendant’s witnesses were not in England, the defendant made an application to allow them to give evidence via video link from Germany. HHJ Howells said the following in his judgment: “the German government had stated that they would not allow German nationals to give evidence by video in courts of foreign jurisdictions. As such the foreign office says that they too objected. Nevertheless, an application was made for me to ignore the diplomatic objection and hear such evidence. I refused that application.”

Fortunately, in one of our cases involving an accident in France, we asked the French Central Authority whether they would object to the defendant’s witness giving evidence from France. Under Chapter I of the Hague Convention and Articles 747-1 and 747-2 of the Code of Civil Procedure, we received confirmation that France accepts, subject to prior authorisation by the French central authority, that a foreign judicial authority may conduct a hearing on French territory directly, without any possible constraint or sanction, by means of videoconferencing.