Deposition requests for US proceedings – the role of English lawyers

Our series focused on witness evidence considers the challenges encountered by practitioners across a range of different dispute resolution specialties. This blog briefly explores how deposition requests in support of US proceedings are dealt with by the courts in England.
 

One of the challenges in international disputes is how documentation and oral evidence can be obtained from an individual or organisation based in another jurisdiction. Requests are regularly made for individuals in England and Wales to attend a deposition for use in US proceedings. 

Depositions

A deposition is a feature most often thought of in the US courts which generally involves the taking of sworn oral evidence (outside of a court room) from a witness. Depositions are a relatively uncommon feature of English proceedings (although the ability to apply for one exists under Civil Procedure Rule 34.8). They are primarily used in English proceedings to obtain evidence from someone before trial where it would not be possible to arrange for them to attend the hearing.

Will the witness engage?

If a witness is voluntarily prepared to give evidence in support of US proceedings and/or fully co-operate then it may be the case that the English court does not need to be involved at all.

However, if a witness is unwilling to fully co-operate (or the terms of that co-operation need to be agreed) then it may be necessary to involve the English court in that process.

The process of obtaining an order for a deposition involves the requesting court (in this case the relevant court in the US) issuing a letter of request to the English court. The procedure is subject to the law of the requesting court (and relevant treaties on taking evidence including- the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“the Evidence Convention”) which established a system for judicial cooperation and was implemented into English law by the Evidence (Proceedings in Other Jurisdictions) Act 1975). The Evidence Convention will apply to the issuing of the requests from the US court to the UK court.

It would be prudent to engage with lawyers in England at the point of crafting the letter of request, as it should be done carefully so as to ensure that requests for evidence, or for the production of documents do not stray beyond what would be permissible in English proceedings. Whilst the English Court has the power to make orders as it sees fit to give effect to the request, it does not have the power beyond that which it would ordinarily have if it were making an equivalent order in English proceedings (see section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975).

The application and examination

Once the letter of request has been issued a party should apply to the English court by filing an application notice (supported with evidence and accompanied by the letter of request), to memorialise and give effect to the request in an English court order. It is usual for the application to be made ex parte (subject of course to a duty of full and frank disclosure). It, therefore, may be open to a respondent to apply to vary or discharge the order following service of the order. The English court will consider the nature of the letter of request and will wish to assist a foreign court. However, before making an order and generally, the English court will be cautious to ensure that (amongst other things) the terms of the request are not excessive, oppressive or stray into being a ‘fishing expedition.’ The terms of the request will be reviewed and some amendments (taking into account submissions by the requesting and responding parties if the application is being heard on notice to the respondent or a subsequent application to vary or discharge the order is made) may be allowed. However, amendments which are more akin to a complete substitution of a request are unlikely to be allowed.

The English court has the power to order a party to be examined but may ensure that safeguards are put in place to protect the party being examined and which will ordinarily include appointing a fit and proper person nominated by the applicant (usually an English lawyer, an examiner of the court, or such other qualified person the court deems fit to carry out the examination). Following appropriate service of an order, an examination will then take place pursuant to Civil Procedure Rule 34.9 (unless otherwise ordered).

Take away points

It is important that early engagement between US and English legal teams takes place in situations where a witness may not cooperate. Applicants should take advice from English lawyers at an early stage to ensure that the underlying request made in the US proceedings are kept in line with what is permissible in England. Respondents should consult with lawyers as soon as they become aware that a request may be coming so that they can prepare and identify the most effective route forward (including whether they may wish to resist or challenge a request).

Further information

If you have any questions or concerns about the topics raised in this blog, please contact Chris Recker. 

About the author 

Chris Recker is a Senior Associate in the Dispute Resolution team. He focuses his practice on complex (and often international) commercial litigation, arbitration and investigations involving allegations of fraud or dishonesty. He acts for both Claimants and Defendants in those matters.