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).
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