Chapter XIII. United Kingdom

• Pages: 231-266

CHAPTER XIII

UNITED KINGDOM

A. Introduction

It is important to begin by drawing some distinctions which are relevant

to obtaining evidence in the United Kingdom for use in proceedings in the

United States. First, the main regimes available for obtaining evidence in

the United Kingdom involve the UK courts providing assistance, in

particular by issuing orders requiring the provision of the evidence. These

regimes are considered in detail in this chapter. In addition, there are

regimes pursuant to which certain administrative or regulatory bodies in the

United States may obtain information directly from equivalent bodies in the

United Kingdom without need of assistance from the UK courts. In

particular, in the context of antitrust proceedings or investigations, the UK

Office of Fair Trading has the power to disclose information to U.S. public

authorities exercising functions in relation to such matters.1 This regime,

and other regimes relating to the disclosure of information in respect of

administrative and regulatory matters, are not discussed in this chapter.

Second, although the statutes and treaties concerning the provision of

assistance in obtaining evidence for use in overseas proceedings apply

throughout the United Kingdom, there are three separate legal jurisdictions

within the United Kingdom, each with its own system of courts and court

rules: England and Wales, Scotland, and Northern Ireland. This chapter

deals with the interpretation of the relevant statutes and treaties and the

procedure for obtaining evidence applied in the courts of England and

Wales, which may differ from those applicable in the courts of Scotland and

Northern Ireland. The courts in England and Wales are referred to in this

chapter as the English courts.

Third, the assistance which may be provided in obtaining evidence in

any part of the United Kingdom depends upon the purpose for which the

evidence is required. The main distinction is between obtaining evidence

for use in civil and commercial proceedings on the one hand and obtaining

evidence for use in criminal proceedings or investigations on the other.

There are different regimes applicable for obtaining evidence in relation to

these two types of cases. The regime applicable to obtaining evidence for

use in civil and commercial proceedings is considered in detail in this

1. Enterprise Act, 2002, Part 9, c. 40.

232 Obtaining Discovery Abroad

chapter. The regime applicable to obtaining evidence in relation to criminal

proceedings is beyond the scope of this work.

Fourth, in the context of civil proceedings, English courts only consider

it necessary for parties in overseas proceedings to apply to them for orders

compelling residents of England and Wales to provide evidence for use in

overseas proceedings if those residents are: (a) non-parties to the overseas

proceedings; and (b) unwilling to provide the evidence voluntarily. English

courts will allow an overseas court to order a resident in England over

whom the overseas court has personal jurisdiction2 and who is properly

joined as a party to provide evidence for use in those proceedings. Where

the proceedings are in a U.S. court, English courts permit such an order to

be issued by the U.S. court under its relevant rules of procedure.

Furthermore, the English courts permit residents in England and Wales to

supply evidence voluntarily, whether to diplomatic or consular officials or

other persons appointed by the foreign court to take the evidence, or to legal

representatives of the parties. Similarly, in the context of criminal matters,

where a witness in the United Kingdom is willing to give evidence, the

Mutual Legal Assistance Section of the Home Office can arrange for an

appropriate law enforcement agency in the United Kingdom to obtain

evidence for use in overseas criminal proceedings or investigations.

However, in certain circumstances, persons in the United Kingdom can be

prohibited by the Secretary of State for Trade and Industry from complying

with any request to provide commercial documents or information in

connection with any overseas proceedings or investigation. The blocking

statute under which such prohibitions can be issued by the Secretary of

State is discussed below.

B. Civil and Commercial Proceedings

The United Kingdom ratified the Hague Convention on the Taking of

Evidence Abroad in Civil or Commercial Matters on July 16, 1976.3 The

Hague Evidence Convention is implemented into UK law by the Evidence

2. Conflict will arise with the English courts, however, where the assumption of

personal jurisdiction by the overseas court is considered excessive.

3. 23 U.S.T. 2555; T.I.A.S. 7444; 847 U.N.T.S. 231; reprinted in 8 I.L.M. 37

(1969) [hereinafter Hague Evidence Convention]. According to one survey,

the United Kingdom is the most common destination for letters of request

eminating from the United States under the Hague Evidence Convention.

ABA Report on Survey of Experience of U.S. Lawyers with the Hague

Evidence Convention (2003) 4, available at http://www.hcch.net.

Discovery in United Kingdom 233

(Proceedings in Other Jurisdictions) Act of 1975.4 The Hague Evidence

Convention provides for a judicial authority in one signatory state to request

the competent authority of another signatory state to obtain evidence in that

other state by means of a letter of request. The 1975 Act grants specific

courts in each of the constituent jurisdictions of the United Kingdom the

power to determine whether to give effect to letters of request received from

overseas and, if so, to make appropriate orders for obtaining the evidence

sought. The specific courts are: the High Court in England and Wales

(English High Court); the Court of Session in Scotland; and the High Court

of Justice in Northern Ireland.5

In the interests of international comity, the English High Court will

generally give effect to letters of request so far as is proper and practicable

and to the extent permissible under English law. The English High Court

must first satisfy itself that it has jurisdiction to issue an order and must then

consider in its discretion whether to issue the order.

The 1975 Act gives the English High Court jurisdiction to issue orders

pursuant to letters of request from foreign courts. The English High Court

has the power to order the provision of evidence in England and Wales

pursuant to a letter of request if it is satisfied that the letter of request was

issued by or on behalf of a court or tribunal;6 and that the evidence to which

the application relates is to be obtained for the purposes of civil proceedings

which either have been instituted before the requesting court or whose

institution before that court is contemplated.7

1. Court or Tribunal

The term “tribunal” in section 1(a) of the 1975 Act has been interpreted

by the English courts as meaning a public tribunal which exercises the

function of a court. It does not include a private arbitral tribunal.8 This

accords with Article 1 of the Hague Evidence Convention which provides:

“A Letter [of Request] shall not be used to obtain evidence which is not

intended for use in judicial proceedings, commenced or contemplated.” The

4. Evidence (Proceedings in Other Jurisdictions) Act, 1975, c. 34 [hereinafter

1975 Act].

5. This Chapter concerns the practice and procedure of the English High Court.

There may be some significant differences in the practice and procedure in the

Scottish and Northern Irish courts.

6. 1975 Act, supra note 4, at § 1(a).

7. Id. at § 1(b).

8. Viking Insurance Co. v. Rossdale and Ducking, [2002] 1 Lloyd’s Rep. 219

(Q.B. Comm. 2001) (New York arbitration).