Obtaining evidence in England and Wales for foreign proceedings: a practical guide

To obtain evidence from entities and individuals based in England and Wales for use in foreign litigation, the primary methods are governed by statutory frameworks and international conventions.

The key mechanism is the use of letters of request under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act). This statutory regime allows foreign courts to request assistance from English courts to obtain evidence, including witness testimony or document production, for use in foreign proceedings.

All applications for orders under the 1975 Act must be:

1. made to the High Court of England and Wales,
2. supported by written evidence, and
3. accompanied by a copy of the letter of request from the requesting court.

How can the English court assist?

An application is made to the High Court under CPR 34.17 following a letter of request from the foreign court. The requested evidence must be required for civil proceedings that have been instituted, or are contemplated, before the requesting court.

The English court’s role is supportive. It doesn’t determine the merits of the foreign dispute. It decides whether it has power to give effect to the request and, if so, whether and on what terms it should exercise that power. English domestic law governs that assessment.

What evidence can be obtained?

The court may make orders for:

• the oral or written examination of witnesses; and / or
• the production of particular documents.

The precise order must remain within the powers available to an English court when obtaining evidence for domestic civil proceedings. A request can’t be used to obtain remedies or investigative powers that aren’t available under English procedure.

Letters of request

The letter of request from the foreign court should explain the foreign proceedings, the issues to which the evidence relates, the witness or documents sought and how the evidence will be used.

It’s sensible to involve English solicitors before the foreign court seals the request. Once sealed, correcting an overly broad or technically defective request may require a further application abroad. Early English-law input can help align the wording with the 1975 Act and CPR Part 34.

The application to the English High Court is generally made without notice and supported by witness evidence. The proposed order should deal clearly with the practical arrangements, including the examiner, attendees, questioning, documents, timing and any remote or hybrid hearing arrangements.

Specificity is critical for document requests

The Court will not require someone to identify every document relevant to the foreign litigation or produce broad classes of documents merely in the hope that something useful may emerge.

The order must identify particular documents that appear to be, or are likely to be, in the person’s possession, custody or power. A carefully defined composite description may be possible, but it must leave the recipient in no real doubt about what must be produced. Requests framed as “all documents relating to” a broad subject are vulnerable to being treated as impermissible fishing expeditions.

What will the court consider?

The English court is generally willing to support foreign courts, but it isn’t a rubber stamp. It will consider:

• whether the statutory conditions are satisfied;
• the intention behind the request;
• whether the evidence is directed to issues for trial rather than a pre-trial investigation;
• the relevance and specificity of the evidence sought;
• whether the request is oppressive, vexatious or abusive;
• whether privilege, confidentiality or sovereignty concerns arise; and
• whether the proposed order is practicable and fair to the witness.

The court may narrow a request or impose safeguards where that gives proper effect to the foreign court’s request. It can’t, however, rewrite the request so extensively that it changes its essential nature.

Practical points for overseas litigants

Before seeking a sealed request, consider:

1. Purpose: identify the trial issue each witness topic or document supports.
2. Witness approach: consider first asking whether the witness will provide evidence voluntarily.
3. Documents: identify known documents or tightly defined categories, custodians and relevant periods.
4. Privilege and confidentiality: address foreseeable objections and any protective measures.
5. Procedure: allow time for the English application, service and any contested hearing.
6. Logistics: deal expressly with the examiner, attendees, questioning, venue, technology, recording and costs.

Obtaining evidence in England and Wales for foreign proceedings: how we can support you

A well-drafted request should make clear what evidence is required, why it matters to the foreign proceedings and why the proposed order falls within the English court’s powers. Problems often arise where requests adopt the language of broad foreign discovery without accounting for the narrower English rules on third-party document production.

We have experience obtaining evidence for use in foreign proceedings and can work with you before the request is sealed, prepare the English High Court application and supporting evidence, advise witnesses or document holders, and deal with privilege, confidentiality and practical arrangements for the examination. Early coordination between foreign and English counsel can make the process more efficient and reduce the risk of delay, narrowing or refusal.