3 October 2019
Hague Convention letters of request are an effective tool used by US litigants to obtain evidence from potential witnesses in the UK in situations where the witnesses are unwilling to give evidence voluntarily. We have seen a recent increase in such requests owing to the large volume of US finance litigation and we have acted for a number of UK based individuals who have been compelled to attend US style depositions in London.
What are letters of request?
The US and UK are signatories to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”). This means that litigants can ask a US court (in which proceedings are already on foot) to seek assistance from the High Court of England and Wales by issuing a “letter of request” to obtain evidence from potential witnesses in the UK. The letter of request will (or should), amongst other things, explain the relevance of the evidence sought and provide details of the subject matter in relation to which the witness will be deposed.
Once a letter of request is approved and issued by the US court, the requesting party can then apply for an English court order to compel the witness’s attendance at a deposition. The English court has powers to assist a foreign court under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the “Act”). Such orders are generally obtained with relative ease, as the English court will seek to assist its foreign counterparts unless it is provided with a compelling reason not to. Further, because the requesting party’s English court application is invariably made without notice, there is no real opportunity for the witness to raise any objections before the order is granted (unless they are forewarned).
So can witnesses object and on what grounds?
Once the witness has been served with an order requiring their attendance at a deposition, they have only 7 days within which to apply for any variations to that order, or to have it set aside entirely. The witness might be able to object to the order if, for example, the letter of request is vague or uncertain about the topics in relation to which the witness is to be deposed. As the witness is entitled to know what their evidence will cover, such a request could be challenged on the grounds that it is oppressive and should properly have been refused by the English court, or must (at least) be narrowed in scope.
Under the Act, the English court does not have the power to order the taking of evidence for foreign proceedings which could not have been obtained in English civil proceedings. As a consequence, such an order must be relevant to the issues for determination at trial (and can only be for used for that purpose). A deposition order could therefore be challenged where the requesting party has failed to properly demonstrate why the evidence sought from the witness is relevant for trial, as opposed to being a mere fishing expedition. In practice, such objections can be difficult to sustain in the English courts, as they will generally defer to the US court’s judgment on issues of relevance. For that reason, it is recommended that if a party to the underlying US litigation is concerned that evidence sought from a potential witness falls outside the scope of what is relevant and necessary for trial, objections should be raised with the US court before the letter of request is issued.
In addition to raising objections about the scope of the evidence sought, the witness may wish to restrict the duration of their proposed deposition, or challenge other procedural aspects. Witnesses may also wish to ensure that they are provided with copies of any relevant documents well in advance of the deposition to aid their preparation. Generally, the witness should also be given an opportunity to review (and correct any errors in) the transcript of their deposition before it is transmitted to the US court.
A Hague Convention deposition will be conducted in the same way as taking evidence at an English High Court trial and the parties will be required to have English legal representation. However, the questions at the deposition will be asked by the parties’ US lawyers and allowance may be made in the court order for the fact that the taking of evidence in US proceedings is substantially different from English practice. As a result, the deposition may involve a hybrid of US and English civil procedure, so it is important to ensure that all parties are clear on the rules of evidence which are to apply. For example, US lawyers attending the deposition are likely to be keen to ensure that the rules relating to leading questions and the taking of objections are clearly expressed in the court order.
Who presides over the deposition?
As part of the English court order, an “Examiner” will be appointed by the court to oversee the deposition. He or she will usually be a practising barrister nominated by the requesting party. The Examiner plays only a limited quasi-judicial role during the deposition and has little power or discretion (save for the ability to rule on any privilege objections made under English law). Even so, it is nonetheless important to ensure that the Examiner nominated by the requesting party is impartial and experienced enough to be fit for the role.
The importance of moving quickly
If a potential witness is minded to challenge a deposition order, he or she should instruct English solicitors as quickly as possible after being served. Although the deadline to apply for any variation of the order is 7 days from service, if lawyers are instructed early, it may be possible to extend that timeframe by agreement with the other parties.
In practice, it is the underlying US litigants who usually approach English lawyers to act for a potential witness. We would recommend that US litigants consider obtaining English legal representation for witnesses as early as possible, rather than waiting until a witness is eventually served with the English deposition order. This will allow consideration of the US letter of request in advance of the requesting party’s application to the English court and increases the chances of effectively varying the likely court order. With enough time, it is generally possible to negotiate limits to the scope of questioning and agree other potentially contentious procedural issues without the need to make an application to the English court.