Applications in Aid Of Foreign Proceedings: Conducting Depositions and Obtaining Disclosure in England

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1 Applications in Aid Of Foreign Proceedings: Conducting Depositions and Obtaining Disclosure in England July 7, 2015 Given London s position as a global financial and legal Authors/Presenters hub as well as a home for the world s elite, it is highly likely that lawyers conducting litigation in other jurisdictions may wish to take evidence from a witness based in England, and/or obtain documents held in England. This is of particular relevance for lawyers conducting litigation in U.S. jurisdictions where oral evidence is of great importance, but the procedure is available to assist litigation in other jurisdictions. This can be done by consent, or by obtaining a Letter of Robert Dougans Co-Author Partner London, UK Robert.Dougans@bclplaw.com Request from the foreign Court to ask the English Court to assist in taking evidence and/or obtaining documents. Deposition/Document Production by Consent There is no law preventing persons from conducting a deposition in aid of a foreign court in England without approval from the English authorities. 1 It is obviously a matter for the foreign Court as to whether it will make an order that witnesses out of its jurisdiction be deposed in England, and/or required to produce documents in Serena Cooke Co-Author Associate London, UK serena.cooke@bclplaw.com Page 1 of 6

2 England, although the courts of many common law jurisdictions will not make an order for a witness summons to be served out of their jurisdiction. Nevertheless, witnesses may consent to be examined. This frequently happens if the witness is employed by a party to the foreign litigation which may face consequences if they do not produce the witness. A deposition taken by consent saves time and costs, and allows for a more flexible procedure to be adopted. It is advisable to proceed with consent if possible. Deposition/Document Production under a Letter of Request If agreement is not possible, the foreign Court may be asked to issue a Letter of Request (known in some jurisdictions as Letters Rogatory) to the English Court. The English Court has authority under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the Act ) to give effect to Letter of Request by making an order that a witness in England attend to give a deposition and/or to produce documents. The procedure is that an application is made to the Senior Master at the Royal Courts of Justice to enforce the Letter of Request. Usually the Senior Master will deal with the application without a hearing but give the witness (and any other party) an opportunity to object. If an applicant considers that the witness or another party is likely to object, it is safest (and cheapest) to make the application on notice to the other parties. Letters of Request will not be accepted unless they relate to a civil or commercial matter under both English law and the law of the requesting Court. This does exclude criminal litigation, but civil enforcement claims brought by governmental authorities (such as RICO claims brought by the U.S. government) can be considered a civil or commercial matter. Section 2(3) of the Act prohibits taking steps via a Letter of Request which would not be permissible in English civil litigation. This has been held to mean that a Letter of Request is limited to obtaining witness testimony and documents for use at trial. The procedure cannot therefore be used to carry out the wider documentary discovery or investigatory interrogations Page 2 of 6

3 which are commonplace in U.S. jurisdictions. A common statement made is that the English Court will not permit a fishing expedition this phrase is used to describe impermissible interrogatories and discovery rather than evidence for trial. but will expect a Letter of Request to set out focussed lines of enquiry to which a witness can undertake come preparation. In United States of America v Philip Morris & Ors [2003] EWHC 3028 the applicants sought to depose the chairman of British American Tobacco as a witness in a RICO claim brought by the US government against a number of tobacco companies. The court held that the request amounted to a wide-ranging investigatory request rather than a focused enquiry character. Even though the Court did accept that the witness could give some relevant and admissible evidence, it was not possible to exclude certain areas of the request without difficulty. If the Letter of Request is intended to obtain evidence for trial, then the English Court will enforce it unless: the request is oppressive; the request is too wide; there has been unacceptable delay; and the request is disproportionate. The Court does have the power to make "running repairs" to a Letter of Request, but does not have the ability to re-draft one if the Letter presented to the Court is incapable of salvage. State of Minnesota v Philip Morris [1998] I.L.P.R The High Court considered that a Letter of Request was too wide, but gave effect to it by imposing restrictions on the scope of questioning in the order because the evidence sought was generally relevant to the dispute. The Court of Appeal held that this approach was right in principle, but that the Letter of Request in issue was too wide-ranging and vague to be saved in that way. The Court of Appeal held that it was necessary to balance the interests of the requesting court with the Page 3 of 6

4 interests of a witness who is entitled to know within reasonable limits the scope of the examination they face. Applying this balance, the Court of Appeal held that even though the witnesses in question did have relevant evidence to give, the terms of the Letter of Request were just too vague to be amended. Golden Eagle Refinery Co Ltd v Associated International Insurance Co. (Court of Appeal, 19th February 1998) the Court of Appeal considered a Letter of Request from California which it considered was aimed at obtaining both pre-trial discovery and evidence for trial. The Court of Appeal agreed this Letter of Request was too wide in scope, but made an order limiting the deposition to gathering evidence for trial, requiring that the evidence be given to the Californian Court rather than being held by one of the parties, and specifying that the examination of the witness be carried out as if it were an examination-in-chief in the High Court in England. The order will provide for the examination of the witness to take place before an independent examiner, who will chair the deposition impartially. The examination must be conducted as if the witness were giving evidence at an English trial. This prevents the party calling the witness from asking leading questions, or cross-examining a witness they have called. The examiner should ensure that procedures are followed, and that questions are not put which would not be allowed by an English judge in civil litigation. Summons To Produce Documents Under A Letter of Request The English Court has the power to order a third party to litigation to attend court to produce documents required for trial. This was formerly known in England as a subpoena duces tecum and still known as such in many common law jurisdictions. A summons to produce documents does not give the court the right to make a general disclosure order against a third party. It must be addressed to a specific individual if addressed to a company the order should require documents to be produced by a proper officer. Page 4 of 6

5 The documents requested must be required for trial. The documents must be clearly identified. The documents sought must be relevant to the issues in the action, and admissible under the relevant law. The request must not be too wide, and should be confined to what is reasonably necessary. Production of the documents must be necessary for fairly disposing of the issues in the action. The English Courts generally take a narrower view of what is relevant than do the courts of U.S. jurisdictions. They are likely to restrict a request to documents directly relevant to the case actually set out in the pleadings. They are generally reluctant to order document production in support of wide-ranging attacks on the credibility of a witness. The Letter of Request should be drafted with this in mind. The English Court will also be very strict in requiring specific identification of documents to be produced. The idea is that a witness ought to be completely sure of their obligations. In Tajik Aluminium Plant v Hydro Aluminium AS [2005] EWCA Civ 1218, the Court of Appeal dealt with an application to issue a witness summons to produce documents. The Court of Appeal confirmed that the powers of the Court to issue a witness summons did not extend to ordering general disclosure of documents from a non-party. It held that ideally each document should be individually identified although it might not be possible to do so in every case. The relevant test was whether documents had been identified clearly enough to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do. It would be unlikely to be met if the documents are described simply by reference to a particular transaction or event which is itself described in broad terms. The Court of Appeal gave the following example: A request for monthly statements for the year 1984 relating to your current account with a named bank would be sufficiently clear and obvious. Page 5 of 6

6 A request for all your bank statements for 1984 would probably be rejected as too vague. Generally These powers can make the English Court a real ally in litigation in other jurisdictions. However, to avoid procedural delays and expense, it is sensible to approach an English lawyer when preparing the Letter of Request for the foreign Court. Ensuring that the original Letter of Request is drafted by someone able to advise as to the approach the English Court will take should save a great deal of time and costs at a later date. Particularly, the English Courts may often suspect that a Letter of Request from courts in a U.S. jurisdiction is likely to be too wide-ranging, and/or aimed at obtaining general disclosure rather than being limited for trial. It is best to draft the Letter of Request and the application in England to remove this lingering doubt. 1 This is not the case in many countries with civil law systems, where conducting depositions or serving foreign court proceedings can be a civil or criminal wrong. RELATED PRACTICES Commercial Litigation Page 6 of 6