Giving Evidence from Abroad in the English Courts

Whilst it is increasingly common, in our post-pandemic world, for hearings to be held remotely by video or telephone conference, the default position is that parties and witnesses attending those hearings should be doing so from within the jurisdiction of the United Kingdom. 

However, in our increasingly globalised world, it is not unusual for witnesses involved in litigation in the English courts to be located temporarily or permanently overseas. If witnesses are unwilling or unable to travel to give evidence in the United Kingdom this can present challenges, particularly as the English courts do not have the authority to compel witnesses outside their jurisdiction to give evidence. In such a case, it will be necessary to demonstrate to the English Court or Tribunal that there is no diplomatic barrier to the taking of evidence from another country.

What is the process?

The process varies depending on whether proceedings are ongoing in a County Court, High Court or in a Tribunal. However, broadly speaking it is necessary to obtain the permission of the relevant foreign authority where the witness is located, and the Court or Tribunal must also give permission for evidence to be given from abroad.

If proceedings are in the County or High Court, permission will first need to be obtained from the English Court before seeking permission from the relevant foreign authority whereas in the Tribunal, permission first needs to be obtained from the relevant foreign authority.

Obtaining permission from the Foreign Authorities

The Foreign, Commonwealth and Development Office has published a list of countries which allow video evidence to be given from abroad and the rules for each country. If the country has not given unconditional consent, then it will be necessary to consider whether the country in question is a signatory to the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (known as the Hague Convention).  If the country is not a signatory (and/or requires a more formal request) then what is known as a “Formal Letter of Request” must be made via the King’s Bench Division of the High Court.  This request is then forwarded to the relevant foreign authority through diplomatic channels. 

Permission from the English Court or Tribunal

Depending on whether proceedings are in the Court or the Tribunal, the timing of consent may differ. In certain circumstances, the request for consent is made before the approach to the foreign authorities and in other circumstances it is after.

The parties must consider whether the relevant foreign authority requires permission to be obtained in the first place. The Government website lists countries with existing agreements permitting witnesses to give evidence via video link for UK proceedings. 

For jurisdictions that are signatories to The Hague Convention, an application must be submitted to the Foreign Process Section of the King’s Bench Division who will then send the application to the relevant foreign authority. 

Practical tips 

Given the need to liaise with authorities in foreign jurisdictions, it is necessary to ensure that the application is correctly drafted and supplies all relevant information and documentation from the outset.  In our experience, the process with the foreign authorities can take several months and so early planning is crucial to ensure that compliance has been achieved in time for the witness to give evidence at a trial. 

In addition, having contacts located in the relevant jurisdiction to follow up direct with the local authority is invaluable.  With offices located around the world as well as a global network of trusted foreign lawyers, we are well positioned to assist clients in navigating the procedural complexities associated with giving evidence from abroad.