Taking Evidence from Witnesses in Foreign Jurisdictions

A case reported on Lawtel recently concerned a little known provision contained in CPR 34.  This deals with the situation where evidence is to be taken from a witness in a different jurisdiction. This provision is potentially of use to parties who wish to obtain evidence from a witness in another country or where a witness in England is requested to give evidence in a foreign case. This situation could arise, for example, in a skiing accident in Austria leading to a trial in, say, Germany where the claimant lives, but where evidence is desirable from English, French or American witnesses who were on the piste.

CPR 34.13 applies where a party wishes to obtain evidence orally on deposition from a witness who lives in a foreign country. The High Court may order letters of request to be issued to the judicial authorities of the foreign country. In some cases written questions for the witness – both examination in chief and cross examination – may be submitted with the request.

CPR 34.16 onwards deals with the situation where evidence is to be taken in England for use in foreign courts, and particularly in European Union countries (see below). The Treasury Solicitor will usually be called upon to give effect to the letter of request if solicitors in England have not been appointed. The examination of witnesses takes place before a special examiner, which can be a judge at a court local to the witnesses. Legal representatives can attend and once the witness is sworn the questions that the foreign court are asked and there may opportunity for some supplemental questions or cross-examination. The transcript is then obtained and translated.

For as long as the UK remains a member of the European Union, section III of CPR 34 gives effect to Council Regulation (EC) No 1206/2001 of May 28, 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters. This simplifies the process even further and its object is to achieve direct transmission of requests between courts in different Member States. There is a useful Practice Guide at http://ec.europa.eu/civiljustice/evidence/evidence_ec_guide_en.pdf.

In an extempore judgment by Mr Justice Leggatt on 28.12.2016 in Prudential Guarantee & Assurance Inc v Marsh Ltd [2016] the procedure set out in CPR 34.13 was in play. The issue was whether the Court would order letters of request be sent to the judicial authorities in the Philippines in order to obtain evidence from three witnesses orally on deposition. It was a contractual insurance dispute and the defendant wanted to obtain evidence from employees of the claimant company who were in the Philippines. The witnesses had refused to give evidence at the upcoming High Court trial in London. The cost to each side of obtaining this evidence was budgeted at £100,000. Leggatt J decided to order the letters of request under CPR 34.13 because the evidence was relevant and would not be disproportionately expensive to obtain.  As the evidence was clearly likely to assist the court, it was predisposed to assist the parties to obtain that evidence.

The CPR 34 procedure is an alternative to the other options of securing witness evidence from a witness abroad such as:

• Obtaining a witness statement and relying on that statement as hearsay under CPR 33 and the Civil Evidence Act 1995 instead of calling the witness to give oral evidence; or
• Arranging transport for the witness to attend the trial; or
• Obtaining an order that the witness give evidence by video link.

Although these other options may be less expensive then proceeding down the CPR 34 route, CPR 34 still remains a useful tool in more complicated circumstances as in Prudential Guarantee & Assurance Inc v Marsh Ltd.