Cross-jurisdictional requests for evidence: United States, England, European Union: American lawyers seeking evidence in England should connect with correspondent lawyers there to guide them through the necessary steps.

• Author: Perry, William J.

THIS article discusses the theory and practice of obtaining evidence for use by litigants in proceedings in the United Kingdom and the United States, respectively. It covers not just reciprocal evidence but also how an English court would obtain, for the benefit of United States litigants, evidence in the European Union, as well as what evidence it could provide to European Union litigants for cases in their countries.

It should be remembered against this background that there are three jurisdictions within the United Kingdom: (1) England and Wales, (2) Scotland and (3) Northern Ireland. In the most general terms, it can be said that the Northern Irish system is very similar to the English system. The Scottish system has different routes, involving Roman law, and therefore although the legal framework is similar, the procedures are different. This article will discuss only the procedures in England and Wales, called simply "England" for convenience.

There are two separate and distinct legal frameworks for obtaining evidence in England for cross-border litigation:

* The procedure as between countries within the European Union (except Denmark) is governed by Regulation 126/2001 issued by the European Commission (the regulation); and

* The procedure as between countries where only one, or neither, is within the European Union is governed by the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 (the Hague Convention).

In either case, there are two procedures for obtaining evidence from all witnesses in England (1) without the intervention of the court (willing witnesses); or (2) with the intervention of the court (using compulsion on an unwilling witness).

THE REGULATION

The objective of the E.C.'s regulation was to unify the procedure for the taking of evidence within the European Union, as part of the E.U.'s general drive to improve the mutual respect and cooperation among courts in the civil jurisdiction field. Before the issuance of the regulation, there was no binding instrument or convention between all the member states concerning the taking of evidence among them, save for the Hague Convention, which had been adopted only by 11 of the member states. The regulation brings a much greater "level of legal certainty" to the reciprocal provision of evidence between the member states.

The regulation applies in both civil and commercial matters. It has been in operation since 1 January 2004, and takes precedence over the provisions contained in all international conventions concluded by states within the E.U. to which it applies. As a result, the Hague Convention no longer applies as between member states of the E.U. (other than Denmark).

The main feature of the regulation is its intention to standardise procedures. It lays down precise criteria regarding the formal content of the request for evidence. The request must be made using a specific form and must contain certain details such as: (1) the name and address of the parties to the proceedings; (2) the nature and subject matter of the case; and (3) the nature of the evidence required.

Requests are made directly to the court of state in which the evidence is to be taken (the requested court) by the court in the member state in which litigation itself is taking place (the requesting court). To ensure the outmost clarity in legal certainty, the request must be completed in one of the official language or languages of the member state of the requested court. That request should be executed expeditiously. If it cannot be implemented within 90 days, the requested court could notify the requesting court accordingly, stating the reasons.

The parties and their representatives may be present when the evidence is taken in order to: (1) be able to follow the proceedings as if the evidence will be taken in the requesting court; (2) thereby have the best possible chance of properly evaluating the evidence; and (3) have a more active role in actually taking the evidence. If this is not possible, modern communications technology, notably video conferencing, may be used to facilitate the participation. However, in all circumstances the conditions under which the evidence is taken must be decided by the requested court in accordance with its own law.

THE HAGUE CONVENTION

In essence, very similar considerations govern procedures under the Hague Convention. It empowers appropriate officers of the state of the requesting court to apply directly to the courts of the requested state to obtain evidence. That request, under English Law, once again must give the identity of the parties, the nature and subject matter of the proceedings, and a note of the evidence which is requested.

On receipt of the request, the court will make an appropriate order after hearing any representations from the other party to the case and the witness, as the case may be. The court normally will order that the evidence be taken before an appropriate officer of the court, which for these purposes include a barrister or solicitor known to the court, and is a subject of the full transcript or video recording. The representatives of both parties and the legal advisers to the witness will...