European Disputes
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2023-2024 was another record year for the London Commercial Court with 64% of litigants who appeared before the court hailing from jurisdictions outside of the UK.[1]  Even ostensibly domestic civil disputes are now likely to possess multiple international elements or touch points. This can include witnesses and documentary evidence (held physically or in data centres) residing in a jurisdiction separate to the place where a dispute is being heard. This increasing internationalisation of disputes holds equally true for the New York Commercial Division.

Helpfully, given London and New York’s positions as leading global financial and legal centres, the English and US federal legal systems have sophisticated civil procedures through which foreign parties can obtain witness and documentary evidence from these jurisdictions for use in civil proceedings abroad. A high-level overview of these procedures is provided below.

England & Wales: Letters of Request

Based upon the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (the “Hague Convention”), and implemented by the Evidence (Proceedings in Other Jurisdictions) Act 1975, the Senior Master of the King’s Bench Division of the High Court of Justice is able to order the following evidence to be produced to a party involved in foreign proceedings:

• The examination of witnesses, either orally or in writing
• The production of documents
• The inspection, photographing, preservation, custody or detention of any property
• The taking of samples of any property and the carrying out of any experiments on or with any property
• The medical examination of any person

However, in order to do so, a party seeking such an order must obtain a letter from the foreign court where the main civil proceedings are taking place requesting the assistance of the English court in obtaining evidence for use in those civil proceedings (i.e. a Letter of Request). The foreign court must be located in a jurisdiction that is a signatory to the Hague Convention in order to make use of this procedure.

The Letter of Request must be drafted carefully as it will need to comply with the rules of the foreign jurisdiction, but also corresponding English law limitations on evidence, such as rules on: (i) pre-trial disclosure; (ii) fishing expeditions; and (iii) documents outside a witness’ possession, custody or power. The English court’s powers to order disclosure do not extend any wider than they would in English civil proceedings.

Once a Letter of Request has been issued by the foreign court, English counsel for the applicant will need to apply for an order under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 and CPR 34.17 before the Senior Master can give effect to the Letter of Request.  This application is usually made without notice and must be supported by evidence (i.e. a witness statement typically from an English qualified solicitor representing the applicant) and an original copy of the Letter of Request, signed by the issuing judge.  The application must be filed in hard copy at the Royal Courts of Justice in London. It is not possible to file the application electronically via CE-File.

Involvement of English solicitors as soon as a party is considering obtaining evidence from England or Wales can save significant time and cost as it will ensure that any Letter of Request, and the corresponding application to the English court, are appropriately drafted and that expectations are managed regarding what evidence can reasonably be obtained.

An order approving a Letter of Request is typically made by the Senior Master of the King’s Bench Division within six months and often without the need for a hearing. This timeline can be significantly shorter for urgent or high value applications. However, the process may take longer if the respondent objects to the application.

United States: Section 1782

Whilst the US is also a signatory to the Hague Convention, and therefore the Letter of Request regime is available, foreign parties typically use section 1782 of Title 28 of the United States Code (“Section 1782”) to obtain evidence in the US because of its less onerous nature.

Section 1782 permits an “interested person” to a foreign proceeding, either pending or “reasonably contemplated” (including foreign civil and criminal proceedings), to seek documentary or testimonial evidence in the US. Section 1782 applications can be made directly by the foreign party to the relevant US district court, or through a Letter of Request issued by a foreign court or tribunal. Most (if not all) private commercial arbitration tribunals do not qualify under section 1782.

Besides the benefit of a party being able to directly apply to the US courts, Section 1782 also extends disclosure obligations to criminal, not just civil, proceedings. Furthermore, the US district court may order that the discovery process proceeds in accordance with either the rules of the foreign tribunal or the US Federal Rules of Civil Procedure. Typically, applicants will prefer the US rules given the comparatively liberal approach to discovery taken by the US system. In addition, Section 1782 orders have been found to have extra-territorial effect (i.e. disclosure can be required over documents and data located outside of the US but which are in the possession, custody or control of a US person or company).

There are a limited number of statutory requirements before a court will make an order pursuant to a Section 1782 application. For instance, the witness from whom evidence is sought must reside or be found in the district of the court to which the application is made. Furthermore, similar to the process relating to Letters of Request, the evidence sought must be used directly at trial in a foreign or international tribunal. However, all Section 1782 applications are ultimately subject to the discretion of the district court. As such, the district court may reject a Section 1782 application for a variety of reasons, for example where the applicant appears to be using the US process to circumvent foreign evidential restrictions.

Conclusion

It is essential that all parties are cognisant of, and ultimately consider exploring the Letter of Request or Section 1782 application process (irrespective of the jurisdiction hearing their case) if there is an English or US nexus. Particularly in high-stakes high-value commercial litigation, parties should ensure that nothing is left on the table, particularly potentially useful evidence or witnesses located abroad.

However, if litigants wish to take advantage of either of these processes, it is important to involve local counsel in the early stages of any formal application to ensure that: (i) the applications are compliant with English or US evidential rules; and (ii) appropriate advice is provided on the intricate requirements and limitations of each process.

For further information on the above please feel free to contact our London Disputes and Investigations team.

[1] The Law Society: International Data Insights Report 2024: https://www.lawsociety.org.uk/topics/research/international-data-insights-2024#download