United Kingdom

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CHAPTER XX

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 theprocedure 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

www.legislation.gov.uk/ukpga/2002/40/contents.

Obtaining Discovery Abroad

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It isoften 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 jurisdiction2and 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. 3However, 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).4The 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 2017n. 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

in8 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 HagueEvidence Convention. See AMERICAN BAR ASS’N,SECTION OF

United Kingdom

419

into English law by the Evidence (Proceedings in Other Jurisdictions) Act

1975.5The 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;6its 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)8applicable 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

INT’L LAW &PRACTICE,REPORT ON SURVEY OF EXPERIENCE OF U.S.

LAWYERS WITH THE HAGUE EVIDENCE CONVENTION LETTER OF REQUEST

PROCEDURES4 (Oct. 9, 2003), available at www.hcch.net/upload/wop/

lse_20us.pdf.

5. Evidence (Proceedings in Other Jurisdictions) Act 1975, c. 34 (UK),

available atwww.legislation.gov.uk/ukpga/1975/34/contents [hereinafter

Evidence Act 1975]. It will be noted that theEvidence 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 rePan Am. World Airways Inc. Application

[1992] QB 854 (EWHC) at 858 (Eng.).

6. In rePan Am., [1992] QB 854 (EWHC) at 859 (Eng.).

7. This chapter concerns the practice and procedure of the English High Court.

There will besome differences in the practice and procedure of the Scottish

and Northern Irish courts.

8. Civil Procedure Rules 1998 (UK), available atwww.justice.gov.uk/

courts/procedure-rules/civil/rules.

9. Charman v. Charman [2006] 1 WLR 1053 (CA) 1063-1064 (appeal taken

from Eng.).