English lawyers are occasionally asked to assist with obtaining orders requiring someone in the UK to be deposed for foreign proceedings.
The procedure is most frequently used in relation to US proceedings, but such requests emanate from many jurisdictions, not all English speaking. There is a separate procedure for most EU states.The legal framework for this jurisdiction is in the Evidence (Proceedings in Other Jurisdictions) Act 1975, and the procedural rules in CPR 34 Part II. The application can only be made to the High Court, and will normally be dealt with by the QBD’s Senior Master. The application is underpinned by a Letter of Request from a foreign court, sometimes known as a Letter Rogatory. This is usually drafted by the foreign lawyer and approved or modified by the foreign court.
The crucial part of this Letter is the list of topics upon which the deposition is to be taken. Some input from the English lawyer is useful at this stage as a request which deals with matters not permissible here may be disallowed. Ideally the witness should not be asked about matters protected by privilege. More difficult is the avoidance of questioning that is speculative or a fishing expedition. The higher courts have suggested that while usually what a foreign judge considers relevant should be decisive, that should not be used to expose a witness to significantly wider ranging questioning than would be allowed here (First America Corp v Al-Nahyan  1 WLR 1154 CA, Re The State of Norway’s application (no.2)  1 AC 723). This should be borne in mind in settling the Request.
The examination, if ordered, often takes place before an examiner appointed from a list held by the High Court Foreign Process Section, though the present Senior Master may be willing to approve an experienced English lawyer not on the list. The questioning can be conducted by the foreign or English lawyer as the party prefers. The examiner’s role is largely passive but he or she may have to rule on whether or not a question is permitted in English law. Practical arrangements for the hearing should be made with the examiner and the witness although the court order will specify a date and place. The examination should be recorded and transcribed, and then returned to the Foreign Process Section for formal transmission to the foreign court.
Richard Colbey is a member of Lamb Chambers and (a now inactive) Californian attorney.
Richard Colbey / 3rd Feb 2015
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