UK: Subpoenaing an Overseas Witness to Give Evidence at Trial in London - is it Possible?

Last Updated: 28 June 2004
Article by Liz Johnson

Originally published March 2004

Witnesses can, in various circumstances, be subpoenaed by the Courts of overseas jurisdictions to attend to give evidence by way of depositions within that jurisdiction. So why not take that one step further and ask a foreign court to subpoena the witness to give evidence by live satellite video link to a Court in London? This would be the next best thing to having the witness present in Court. Indeed, the Commercial Court is increasingly amenable to evidence being given in this way (albeit on a voluntary basis) in order to save costs.

Growing use is made of the "Hague Convention Request" as a means of compelling witnesses based overseas to give evidence in connection with litigation taking place in the Courts in London. This procedure can be utilised in circumstances where the witness is resident in a state which is a signatory to the Hague Convention and it paves the way for US-style depositions. However, the Hague Convention route can be bureaucratic and slow and will not deliver live witness evidence at trial. As the trial draws closer it will be increasingly impractical for the parties' lawyers and Counsel to travel half way across the world in order to conduct depositions. In addition to the time burden, the financial costs involved may be prohibitive, even in the context of high value or multi-jurisdictional litigation.

What if the evidence of the witness is critical to your case at trial? What if, despite the best efforts of your lawyers, you cannot persuade the witness to give evidence by video link? Or perhaps the witness seems willing but you just can't take the risk of him reneging on a previous agreement to give evidence by video link at the eleventh hour. Written or video-taped depositions may simply not be sufficient to advance a party's case. For example, where serious allegations as fraud are pleaded any properly advised opposing party will demand that the witness whose evidence is said to support or rebut such allegations be produced at trial.

In a recent insurance dispute in the Commercial Court in London involving allegations of fraud, one of the key defence witnesses was based in California. The Defendant had no hold over the witness and there was no incentive for him to co-operate. Indeed, his evidence could have led to various fraud claims being brought against him personally. It was not in his own personal interest even to set foot in the UK since he risked being served with proceedings against him.

The witness had initially agreed to provide a witness statement and attend trial but withdrew co-operation on the eve of exchange of witness statements. The Defendant therefore made a without notice application for permission to serve a witness summary in respect of his evidence. The Order was granted, but the witness summary would in reality carry little or no evidential weight in the event that the Defendant could not produce the witness in person to give oral evidence at trial. Therefore, without means of compelling the witness to give evidence, the Defendant would have been in an invidious position and suddenly without key defence evidence.

The Defendant applied for a novel Letter of Request (otherwise known as a Letter Rogatory) in which the English Court requested that a District Court in California make an Order compelling the witness to attend the offices of the Defendant's US attorneys to give evidence live by video link.

US Federal State Statute 28 U.S.C 1782

The Defendant instructed local lawyers in Los Angeles (where the witness was resident) to make an application to the District Court of the Central District of California under US Federal State Statute 28 U.S.C 1782 ("§1782"). This statute allows a US District Court to order a person to provide testimony for use in foreign proceedings or foreign tribunal. It is routinely used as a method of taking evidence by deposition and has traditionally been applied to enforce the taking of pre-trial discovery (including pretrial depositions and physical production of documents). There have been no reported cases where §1782 procedures had been used to compel in-trial testimony. However, the local lawyers in Los Angeles advised that the procedure could be used to compel in-trial testimony and sought and obtained an order to this effect. The application was based upon the Letter of Request issued by the Senior Master of the High Court and on the basis that the subject of the request was a crucial defence witness and that his live evidence (as opposed to written statement or pre-trial deposition) was required by the English Court.

The three pre-requisites for an Order under §1782 are summarised as follows:-

  • the discovery sought must be for use in a "proceeding or foreign or international tribunal"; and
  • the application must seek discovery from a "person" who "resides or is found" in the district in which the application is filed, and
  • the application must be made by a "foreign tribunal" or an "interested person."

The Courts have taken a broad statutory interpretation and the first requirement will be satisfied by any quasijudicial or judicial proceeding. An interested person will include a person designated by or under foreign law, or a party to foreign or international litigation.

A Letter of Request issued formally by the High Court, as opposed to simply an application by an interested party, will provide greater credibility for the special request for live video evidence. Demonstrating to the District Court that the request is a formal one under the procedures of the English Courts will help to satisfy the Court that the Order sought is within the legislative purpose of the statute.

Orders under §1782 are discretionary, and so each case will be judged on individual merit. Further, whether or not the order is granted may well depend of the strength of argument raised in opposition by the witness. The statute is silent as to the procedure to be followed in filing such an application. However, it is almost certain that the Court will require the party seeking the Order to serve notice of the application upon the person against whom the application is being lodged, as well as the other parties in the jurisdiction where the litigation is being conducted.

Once the §1782 motion has been filed the Court will give the relevant parties time in which to file opposition, following which the Court will make a decision as to whether it is prepared to grant the Order in the particular circumstances. The Order should specify the dates and times at which the witness is required to give evidence and details of any safeguards which will be in place, for example, that the witness will not be required to give evidence for more than, say, five hours per day, between the hours of ten o'clock and four o'clock. If the witness is resident in a different time zone then the English Court may be asked to convene a hearing outside normal Court hours. However, the Courts are often amenable to such requests, particularly in circumstances where the evidence of the witness will assist the Court in disposing of the issues in accordance with the overriding objective.

The Californian example broadly illustrates a procedure by which the assistance of a foreign court may be enlisted in order to introduce live witness evidence where the witness is unwilling and outside the jurisdiction of the English Court. The existence of an Order in the foreign jurisdiction will invariably compel the witness either to comply with or challenge the Order. Failure to comply with the Order will amount to contempt of the issuing Court and carry various and potentially draconian sanctions.

It will therefore be for the witness to challenge the Order, though the witnesses may of course simply comply on the basis that it is less troublesome than instructing lawyers to oppose the application. Such orders offer litigants the opportunity of accessing live witness evidence that without such an order would be off limits. In many cases, there is simply no credible alternative to live witness evidence, which gives the trial Judge the opportunity of assessing the demeanour of the witness and his performance under cross-examination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions