The Evidence (Proceedings in Foreign Jurisdictions) Ordinance (Cap 24) gives statutory effect in the BVI to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters signed at The Hague on 18 March 1970, commonly known as the Hague Evidence Convention, which is attached as a Schedule to the Act. The Act, section 9(3) states that it 'is enabling and shall, in its application, be given such construction as would as nearly as possible afford it conformity with the Convention contained in the Schedule'. The Act is very similar in content and nature to the English Evidence (Proceedings in Other Jurisdictions) Act 1975.
The Act, section 3 states:
The High Court has all the powers conferred on it by this Ordinance where an application is made to it for an order for evidence to be obtained in the (BVI) and that Court is satisfied that
- the application is made in pursuance of a request issued by an authorised court or tribunal in a foreign jurisdiction, in this Ordinance referred to as the requesting court; and
- the evidence to which the application related is to be obtained
for the purposes of civil proceedings
(i) that have been instituted before the requesting court, or
(ii) the institution of which before that court is contemplated.
A request referred to in subsection (1) must be written in the English language or in the language normally used in the foreign jurisdiction in which the request originates with an English translation certified as authentic by or on behalf of the requesting court.
The requirements to be met under this section of the Act are very similar to those of the English 1975 Act.
The requirements to be met under this section of the Act are very similar to those of the English 1975 Act.
The procedure by which letters of request are given effect is governed by the Eastern Caribbean Supreme Court Civil Procedure Rules (ECSC CPR), Part 71. In accordance with Part 71 an application may be made without notice but must be supported by affidavit evidence1 which must exhibit the request pursuant to which the application is made (with a translation if the request is not in English).2 Thereafter, any application for a further order or directions must be made on notice.3
Upon an application made to the High Court, it may make an order 'for the obtaining of evidence in the [BVI] as may appear to be appropriate for the purpose of giving effect to the request in pursuance of which the application was made'.4 Such an order may make provision for the following:
- the examination of witnesses, either orally or in writing;
- the production of documents;
- the inspection, photographing, preservation, custody or detention of any property; or
- the medical examination of any person.5
No order can be made by the BVI High Court requiring any particular steps to be taken in obtaining evidence unless they are steps that can be required to be taken in the BVI High Court in proceedings of the same description6 or requiring a person to state what documents relevant to the proceedings are in their possession or produce any documents other than those specified in the order.7 Further, no person can be compelled to give evidence either if it is evidence that they could not be compelled to give in civil proceedings before the BVI High Court, or in the territory of the court issuing the Ietter of request,8 or if such evidence would endanger the security of the territory.
If an order is made for the examination of a witness, any such examination must be conducted in the manner provided for by ECSC CPR, rules 33.8 to 33.12. Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial. If all the parties are present, the examiner may, with the consent of the parties, conduct the examination of a person not named in the order for examination. The examiner may conduct the examination in private if he or she considers it appropriate to do so. The examiner must ensure that a full record is taken of the evidence given by the witness. If any person being examined objects to answer any question put to him or her, the ground of the objection and the answer to any such question must be set out in the deposition or in a statement annexed to the deposition. The examiner must send the original deposition to the court office and a copy to every party to the proceedings and the deponent.
If the deponent, or any legal practitioner present at the hearing, is of the opinion that the deposition does not accurately represent the evidence, he or she may endorse on the copy deposition the corrections which in his or her opinion should be made which must be filed and served on all other parties.
On appointing an examiner the court must fix the fee to be paid to the examiner for carrying out the examination. If an examination is carried out by a person other than a legal practitioner, the fee must be paid into the court office. The party who obtained the order must also pay the fee and all reasonable travelling and other expenses including charges for a room (other than the examiner's own chambers or office) where the examination takes place. In any event, the court may ultimately order any party to bear the costs of the examination. The examiner may report to the court the fact that any fees or expenses due to him or her have not been paid out and the court may make an order that the party who obtained the order for the examination should pay such fees and expenses. Such order may be enforced as a money judgment. With the consent of the parties, the court may order that the evidence of a witness be taken as if before an examiner, but without an examiner being appointed or present.
Where such an order is made then, subject to any directions that may be contained in the order:
- a legal practitioner for any party may administer the oath to a witness;
- any person transcribing evidence given need not be sworn in but must certify as correct the transcript of the evidence and deliver it to the legal practitioners for the party whose witness was examined;
- the legal practitioner for the party whose witness was examined must file the original transcript and deliver a true copy to all other parties and to the witness who was examined;
- the party whose witness is to be examined must provide a means of recording the evidence of the witness; and
- if the witness or any legal practitioner present at the hearing is of the opinion that the transcript does not accurately represent any evidence given, he or she may endorse on the copy deposition the corrections which in his or her opinion should be made which must be filed and served on all other parties.
There are no relevant, reported decisions of the BVI court (or the ECSC) in relation to letters of request and as such any English authorities will be persuasive. For example in relation to the requirement that the letter of request must have been made by the foreign court in respect of civil proceedings the House of Lords held in Re State of Norway's Application (Nos 1 and 2)9 that it must first satisfy itself that the proceedings are 'civil or commercial' under the law of the requesting court and then that it is such under its own law before regarding the requirement as having been met.
Footnotes
1 ECSC CPR, r71.2(1).
2 ECSC CPR, r71.2(2).
3 Ibid, r71.2(3).
4 The Act, s 4(1).
4 The Act, s 4(1).
5 Ibid, s 4(2).
6 Ibid, s 5(1)(a).
7 Ibid, s 5(1)(b)(i) and (ii).
8 Ibid, s 7(1)(a) and (b).
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.
