Shorter Reads

Pro-active steps to obtaining evidence under the Hague Convention

Getting what you need – even when you can’t get all what you want

US lawyers may be surprised to learn the extent to which the procedural rules governing civil and commercial matters in England differ from those with which they will be familiar in the US and the potential adverse impact this can have on applications made under the Hague Convention to the US courts. This is part of a series of bulletins for US lawyers and parties who may have litigation or disputes in England issued by partner Stephen Rosen who heads our UK/USA disputes team.

3 minute read

Published 9 July 2025

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The Hague Convention is commonly used by US claimants to issue depositions to obtain evidence in England for use in US proceedings, but the English Courts’ procedural rules have an important impact on the application that needs to be made to the US Courts mainly because the English Courts do not have a procedure similar to US style pre-trial discovery.

Since March 1970, over 60 states have bound themselves to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”) including the UK and the USA.

The stated purpose of the convention was to “improve mutual judicial co-operation in civil or commercial matters” and more specifically by facilitating “transmission and execution of Letters of Request and to further the accommodation of the different methods which they use for this purpose.”

The United States ratified the Hague Convention in August 1972, and the United Kingdom followed suit in July 1976. Today, the Hague Convention is commonly used by practitioners conducting litigation in the US to obtain evidence from persons based in England (and Wales).

The process itself is well-established, relatively fast and generally smooth. However, US lawyers may be surprised to learn the extent to which the procedural rules governing civil and commercial matters in England differ from those with which they will be familiar in the US and the potential adverse impact this can have on applications made under the Hague Convention to the US courts. In particular, without early English law advice there is a risk that the application may not ultimately yield the evidential outcomes which they might have hoped at the time they resolved to bring it.

Why is that, and how best can, US lawyers work with their English counterparts to maximise their entitlements from the English Court and aim to ensure that they get at least what they need from the application?

The starting point is that English Courts are generally receptive to applications brought under the Hague Convention.

In United States of America v Philip Morris Inc and others[1], the English Court of Appeal, citing Lord Denning MR in RTZ v Westinghouse[2]  said:

“it is the duty and pleasure of the court to give all such assistance as it can to the requesting court within the limits imposed by the Evidence (Proceedings in other Jurisdictions) Act 1975 (“the 1975 Act”) from which the jurisdiction to make orders of this kind is derived.”

Warm as the language in that passage may be towards applicants seeking to rely upon the Hague Convention, buried in the detail of it is the essential challenge faced in all (or at least the overwhelming majority) of applications as a result of the 1975 Act.

As Dicey, Morris & Collins on The Conflict of Laws (16th edition) states at 10-103 (emphasis added):

“The High Court may order the taking of evidence in England at the request of a foreign court or tribunal under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the 1975 Act”). There is no inherent jurisdiction; the only powers available to the courts in this context are those set out in the 1975 Act.”

 It is important to note that a number of important qualifications and limitations are contained in the 1975 Act limiting the extent to which English Courts will seek to give effect to letters of request. Crucially, no order of an English Court can require any particular step to be taken unless it is a step which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the English Court.

This restriction exposes a particular procedural distinction between the jurisdictions in many cases because in England, there is no concept of taking evidence in the form of pre-trial discovery, a practice common in the US.

Unfortunately, it is by no means uncommon for letters of request sent by US Courts to seek the taking of evidence in England which go beyond the scope of the jurisdictional constraints of the 1975 Act. Indeed, Waller LJ in Refco Capital Markets Ltd v Credit Suisse First Boston Ltd[3] expressed what appeared to be the accumulation of some years of judicial concern when he said:

“Once again time and money is being spent in the English courts over Letters Rogatory requesting the English court to order the production of documents and oral deposition from third parties to litigation in the United States of America. That time and money would be unnecessary, if those seeking the request from the United States Court appreciated the differences between the attitude of the United States Courts to the making of “discovery” orders against non-parties, and the attitude of the English court to the making of such orders.

A number of authorities of the House of Lords[4]since the coming into force of that Act have emphasised the position. But still much time is taken up in our courts trying to give effect to Letters of Request, problems in relation to which could have been avoided if proper steps had been taken to bring to the attention of the foreign court the constraints under which the English court operates.”

Increasingly today US lawyers are looking to involve English solicitors and counsel in the process at the earliest possible stage. This can, and ideally should, include obtaining advice from English lawyers prior to seeking the letter of request itself. Doing so can help ensure the letter of request accurately reflects the scope of the English Court’s jurisdiction and avoid protracted, costly and contentious proceedings in the High Court to obtain an order enabling the evidence to be obtained.

For further information about depositions please see our attached know how guide: Commercial Disputes Know-How Guides: Depositions.

[1] [2004] EWCA Civ 330

[2] [1978] A.C. 547

[3] [2001] EWCA Civ 1733

[4] Now the Supreme Court

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Shorter Reads

Pro-active steps to obtaining evidence under the Hague Convention

Getting what you need – even when you can’t get all what you want

US lawyers may be surprised to learn the extent to which the procedural rules governing civil and commercial matters in England differ from those with which they will be familiar in the US and the potential adverse impact this can have on applications made under the Hague Convention to the US courts. This is part of a series of bulletins for US lawyers and parties who may have litigation or disputes in England issued by partner Stephen Rosen who heads our UK/USA disputes team.

Published 9 July 2025

Associated sectors / services

  • Commercial disputes

Authors

The Hague Convention is commonly used by US claimants to issue depositions to obtain evidence in England for use in US proceedings, but the English Courts’ procedural rules have an important impact on the application that needs to be made to the US Courts mainly because the English Courts do not have a procedure similar to US style pre-trial discovery.

Since March 1970, over 60 states have bound themselves to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”) including the UK and the USA.

The stated purpose of the convention was to “improve mutual judicial co-operation in civil or commercial matters” and more specifically by facilitating “transmission and execution of Letters of Request and to further the accommodation of the different methods which they use for this purpose.”

The United States ratified the Hague Convention in August 1972, and the United Kingdom followed suit in July 1976. Today, the Hague Convention is commonly used by practitioners conducting litigation in the US to obtain evidence from persons based in England (and Wales).

The process itself is well-established, relatively fast and generally smooth. However, US lawyers may be surprised to learn the extent to which the procedural rules governing civil and commercial matters in England differ from those with which they will be familiar in the US and the potential adverse impact this can have on applications made under the Hague Convention to the US courts. In particular, without early English law advice there is a risk that the application may not ultimately yield the evidential outcomes which they might have hoped at the time they resolved to bring it.

Why is that, and how best can, US lawyers work with their English counterparts to maximise their entitlements from the English Court and aim to ensure that they get at least what they need from the application?

The starting point is that English Courts are generally receptive to applications brought under the Hague Convention.

In United States of America v Philip Morris Inc and others[1], the English Court of Appeal, citing Lord Denning MR in RTZ v Westinghouse[2]  said:

“it is the duty and pleasure of the court to give all such assistance as it can to the requesting court within the limits imposed by the Evidence (Proceedings in other Jurisdictions) Act 1975 (“the 1975 Act”) from which the jurisdiction to make orders of this kind is derived.”

Warm as the language in that passage may be towards applicants seeking to rely upon the Hague Convention, buried in the detail of it is the essential challenge faced in all (or at least the overwhelming majority) of applications as a result of the 1975 Act.

As Dicey, Morris & Collins on The Conflict of Laws (16th edition) states at 10-103 (emphasis added):

“The High Court may order the taking of evidence in England at the request of a foreign court or tribunal under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the 1975 Act”). There is no inherent jurisdiction; the only powers available to the courts in this context are those set out in the 1975 Act.”

 It is important to note that a number of important qualifications and limitations are contained in the 1975 Act limiting the extent to which English Courts will seek to give effect to letters of request. Crucially, no order of an English Court can require any particular step to be taken unless it is a step which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the English Court.

This restriction exposes a particular procedural distinction between the jurisdictions in many cases because in England, there is no concept of taking evidence in the form of pre-trial discovery, a practice common in the US.

Unfortunately, it is by no means uncommon for letters of request sent by US Courts to seek the taking of evidence in England which go beyond the scope of the jurisdictional constraints of the 1975 Act. Indeed, Waller LJ in Refco Capital Markets Ltd v Credit Suisse First Boston Ltd[3] expressed what appeared to be the accumulation of some years of judicial concern when he said:

“Once again time and money is being spent in the English courts over Letters Rogatory requesting the English court to order the production of documents and oral deposition from third parties to litigation in the United States of America. That time and money would be unnecessary, if those seeking the request from the United States Court appreciated the differences between the attitude of the United States Courts to the making of “discovery” orders against non-parties, and the attitude of the English court to the making of such orders.

A number of authorities of the House of Lords[4]since the coming into force of that Act have emphasised the position. But still much time is taken up in our courts trying to give effect to Letters of Request, problems in relation to which could have been avoided if proper steps had been taken to bring to the attention of the foreign court the constraints under which the English court operates.”

Increasingly today US lawyers are looking to involve English solicitors and counsel in the process at the earliest possible stage. This can, and ideally should, include obtaining advice from English lawyers prior to seeking the letter of request itself. Doing so can help ensure the letter of request accurately reflects the scope of the English Court’s jurisdiction and avoid protracted, costly and contentious proceedings in the High Court to obtain an order enabling the evidence to be obtained.

For further information about depositions please see our attached know how guide: Commercial Disputes Know-How Guides: Depositions.

[1] [2004] EWCA Civ 330

[2] [1978] A.C. 547

[3] [2001] EWCA Civ 1733

[4] Now the Supreme Court

Associated sectors / services

  • Commercial disputes

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