United Kingdom

A. Introduction
The main mechanisms available to attorneys in the United States
seeking evidence in the United Kingdom involve the UK courts providing
assistance, in particular by issuing orders for provision of evidence. The
nature of the assistance which may be given in obtaining evidence for use
abroad 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 or administrative, i.e. public law, proceedings on the other.
This chapter deals with mechanisms by which evidence can be
obtained for use in civil and commercial proceedings. Mechanisms for
obtaining evidence for criminal and administrative proceedings are
beyond the scope of this work but, in brief, there are mechanisms by which
evidence can be obtained for use in criminal proceedings or investigations,
and certain administrative or regulatory bodies in the United States may
obtain information directly from equivalent bodies in the United Kingdom
without assistance from the UK courts. For example, in the context of
antitrust proceedings or investigations, the UK Competition & Markets
Authority has the power to disclose information to U.S. public authorities
exercising functions in relation to such matters.1
The statutes and treaties concerning the provision of assistance in
obtaining evidence for use in overseas proceedings apply throughout the
United Kingdom. It should however be noted that 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 or Northern Ireland. The courts in England and Wales
are referred to in this chapter as the English courts.
1. Enterprise Act 2002, pt. 9, c. 40 (UK), available at
Obtaining Discovery Abroad
It is often possible to obtain evidence in the United Kingdom without
the involvement of the English courts. 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: (1) nonparties to the overseas proceedings; and (2) 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. 3 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 in Section E below.
B. Evidence (Proceedings in Other Jurisdictions) Act 1975
The United Kingdom ratified the Hague Convention on the Taking of
Evidence Abroad in Civil or Commercial Matters on July 16, 1976 (Hague
Evidence Convention).4 The Hague Evidence Convention is implemented
2. Conflict will arise with the English courts, however, where the assumption
of personal jurisdiction by the overseas court is considered excessive.
3. THE WHITE BOOK SERVICE 2017 n. 34.21.1 (The Right Honourable Lord
Justice Jackson et al. eds., 2017) [hereinafter WHITE BOOK]. Similarly, in
the context of criminal matters, where a witness in the United Kingdom is
willing to give evidence, the UK Central Authority of the Home Office can,
upon request for mutual legal assistance, arrange for an appropriate law
enforcement agency in the United Kingdom to obtain evidence for use in
overseas criminal proceedings or investigations.
4. Convention on the taking of Evidence Abroad in Civil and Commercial
Matters, 23 U.S.T. 2555, T.I.A.S. No. 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 emanating from the United States under
the Hague Evidence Convention. See AMERICAN BAR ASSN, SECTION OF
United Kingdom
into English law by the Evidence (Proceedings in Other Jurisdictions) Act
1975.5 The Hague Evidence Convention provides for a judicial authority
in one signatory state to submit a letter of request to the competent
authority of another signatory state to obtain evidence in that other state.
The English courts have no inherent jurisdiction to act in aid of a
foreign court;6 its jurisdiction to issue orders pursuant to letters of request
from foreign courts is pursuant to and limited by the Evidence Act 1975.
The Evidence Act 1975 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.7
Part 34 of the Civil Procedure Rules (CPR)8 applicable in the English
courts sets out the process by which to obtain such orders. The court will
apply the same principles to an incoming request under the Evidence Act
1975 as it does to an outgoing request.9
PROCEDURES 4 (Oct. 9, 2003), available at www.hcch.net/upload/wop/
5. Evidence (Proceedings in Other Jurisdictions) Act 1975, c. 34 (UK),
available at www.legislation.gov.uk/ukpga/1975/34/contents [hereinafter
Evidence Act 1975]. It will be noted that the Evidence Act 1975 predates
the United Kingdom’s ratification of the Hague Evidence Convention.
Having signed the Hague Evidence Convention in 1970, Parliament
undoubtedly enacted the Evidence Act 1975 with the Hague Evidence
Convention and its implementation in mind. The Evidence Act 1975 does
not refer to the Hague Evidence Convention but is compatible with it. See
Cynthia Day Wallace, ‘Extraterritorial’ Discovery: Ongoing Challenges
for Antitrust Litigation in An Environment of Global Investment, 5 J. INT.
ECON. L. 353, 364 (2002); In re Pan Am. World Airways Inc. Application
[1992] QB 854 (EWHC) at 858 (Eng.).
6. In re Pan Am., [1992] QB 854 (EWHC) at 859 (Eng.).
7. This chapter concerns the practice and procedure of the English High Court.
There will be some differences in the practice and procedure of the Scottish
and Northern Irish courts.
8. Civil Procedure Rules 1998 (UK), available at www.justice.gov.uk/
9. Charman v. Charman [2006] 1 WLR 1053 (CA) 1063-1064 (appeal taken
from Eng.).

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