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

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.

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.