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Letters rogatory, or letters of request, are a means by which a court in a foreign jurisdiction can request assistance from the English courts in obtaining documents and/or evidence from a witness resident in England, in support of foreign judicial proceedings.
English rules of evidence allow a witness based in England to provide documents and/or oral testimony for use in foreign proceedings voluntarily. However, where the party is unwilling to provide documents or give evidence, a letter of request will be necessary.
Letters of Request – Hague Convention Signatories
The United Kingdom is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the "Hague Convention"), a multi-lateral treaty which establishes methods for the provision of testimony and documents. It has over 40 signatory states, including the USA and the Russian Federation.
The UK implemented its obligations under the Hague Convention by passing the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the “Act”), which (together with the Civil Procedure Rules) sets out the principal rules and procedures for English courts in relation to letters of request from foreign jurisdictions. Although the English court has the discretion on whether to comply with the request, the general principle applied by the English Courts regarding letters of request under the Hague Convention is: "We ought to afford foreign Courts the fullest benefit we can".
A letter of request must comply with the formal requirements of Article 3 of the Hague Convention, which means it must confirm the following details:
- The authority requesting its execution (i.e. the name of the relevant foreign Court) and the authority requested to execute it (i.e. the High Court of England and Wales);
- The names and addresses of the parties to the proceedings;
- The nature of the proceedings for which the evidence is required;
- The evidence to be obtained or other judicial act to be performed; and (as appropriate)
- The names and addresses of the persons to be examined;
- The questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;
- The documents to be inspected.
The following principals are important when issuing a letter of request:
- The evidence sought must be for use at trial. A request issued for the purpose of obtaining pre-trial disclosure of documents will not be executed.
- The English court will not grant a request which is drafted so widely that it is a "fishing expedition", which is never allowed in the English court. Therefore, in relation to documents, the Court will make an Order for production of "particular documents specified" in the letter of request. General requests, such as asking for "any memoranda, correspondence or documents relevant thereto" are far too wide.
- A party required to give evidence in England has the protection of both the English rules relating to privilege, as well as the privilege rules of the foreign requesting court.
Letters of Request – European Union Member States (except Denmark)
In respect of European Union member states, European Council Regulation 1206/2001 (the “Regulation”) provides an alternative procedure for letters of request issued and enforced between member states. A member state can choose whether to request evidence under the Regulation or under the receiving state’s national legislation, which in the UK is the Act. However, when requesting evidence in England, the Regulation appears to be more beneficial, because it gives the English court a narrower discretion to refuse a request (which can only be done in “strictly limited exceptional situations”) and a narrower discretion to impose costs, than the Act.
Under the Regulation, evidence can be obtained either by asking the English court to obtain the evidence (for example a witness can be examined by the English court and then the evidence sent to the requesting court), or a requesting court can obtain the evidence directly (for example, taking evidence from a witness via a video link to an English Court where the witness is present).
The English Court is obliged under the Regulation to comply with requests without delay, and in any event, within 90 days of receipt of the request.
The Hague Convention and Regulation provide effective ways of obtaining evidence in England in support of foreign proceedings. As the English court has the discretion to enforce a request under each of the regimes discussed above, it is sensible to obtain the input of an English lawyer on the form and content of a draft letter of request prior to its issuance. This will minimise the risk of the English court rejecting the request in whole or in part and the risk of a witness successfully applying to set aside any Order giving effect to the letter of request.