Taking of evidence after Brexit

Guide
13 Jan 2021
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This guidance sets out the implications for UK lawyers seeking to take evidence from entities in EU member states from the expiry of the Brexit transition period.

It’s relevant for UK lawyers seeking cross-border evidence in civil or commercial matters in relation to EU member states.

Introduction

From the end of the transition period, Council Regulation (EC) No 1206/2001 on cooperation between the courts of the member states in the taking of evidence in civil or commercial matters is no longer applicable between the UK and the EU member states.

The Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters (evidence convention) has instead become applicable between the UK and those EU member states that are part of the convention.

The exceptions where the convention does not apply are:

  • Austria
  • Belgium
  • Ireland

Where the convention is not applicable, letters rogatory will have to be sent to the national courts via diplomatic channels.

Hague Convention on the taking of evidence abroad

The UK acceded to the evidence convention in 1976.

The evidence convention establishes methods of co-operation for the taking of evidence abroad in civil or commercial matters, between parties via letters of request (Articles 1 to 14), and diplomatic or consular agents and Commissioners (Articles 15 to 22).

Under Article 12, the execution of a letter of request can be refused if either:

  • in the receiving state the execution of the letter does not fall within the functions of the judiciary, or
  • the state addressed considers that its sovereignty or security would be prejudiced by the execution

Letters of request (Chapter I)

To obtain evidence that’s intended for use in judicial proceedings, a letter of request must be sent from a judicial authority of the requesting state to a competent authority of the requested state.

A letter of request cannot be used for obtaining evidence that’s not intended for use in judicial proceedings, commenced or contemplated (Article 1).

This letter must be transmitted to the central authority of the requested state, which then will forward it to the competent authority for execution; the law of the requested state will apply to the execution.

Each state has a designated central authority (Article 2), and federal states might have more than one (Article 24.2).

In order to expedite and facilitate execution, the convention provides an option to allow the presence of the parties and/or their representatives at the execution of the letter of request.

The requesting authority may also request the use of a special method or procedure in the execution of the letter of request, provided this is not incompatible with the law of the requested state or impossible to perform (Article 9).

If the contracting state has not made a reservation under Article 33, letters in English or French or translated into these languages will be accepted (Article 4). The translation must be certified as correct, either by a diplomatic officer or consular agent or by a sworn translator or by any other person so authorised in either state.

A letter of request does not need any legalisation or other formality, but it must specify (Article 3):

  • the authority requesting its execution and the authority requested to execute it, if known to the requesting authority
  • the names and addresses of the parties to the proceedings and their representatives, if any
  • the nature of the proceedings for which the evidence is required, giving all necessary information
  • the evidence to be obtained or other judicial act to be performed

Further information will be necessary depending on what type of evidence is requested, for example:

  • 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 or other property, real or personal, to be inspected
  • any requirement that the evidence is to be given on oath or affirmation, and any special form to be used
  • any special method or procedure to be followed under Article 9

The more detailed the letter is, the less likely it will be rejected or questioned.

Diplomatic or consular agents and commissioners (Chapter II)

If a state has not made reservations under Article 33, evidence can be taken by diplomatic or consular agents and commissioners.

Subject to the relevant permission, the representative or commissioner may:

  • take evidence, if their proposed actions are compatible with the law of the state of execution, and
  • have power to administer an oath or affirmation

Pre-trial discovery (Article 23)

Article 23 is particularly relevant for the UK jurisdictions, and common law jurisdictions in general:

“A contracting state may at the time of signature, ratification or accession, declare that it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries.”

Due to existing misunderstandings of the nature of pre-trial discovery, there were meetings of the Hague Conference Special Commission in 2003, 2009 and 2014 where the nature and purpose of this procedure was clarified.

States that have made a general, non-specific declaration were invited to revisit their declarations.

It’s been clarified that the convention permits states to ensure, by way of declaration, that letters of request for the purpose of obtaining pre-trial discovery of documents are sufficiently substantiated so as to avoid requests whereby a party is merely seeking to find out what documents might be in the possession of the other party to the proceedings.

Reservations and declarations

With the exception of Slovenia, all other EU member states that have acceded to the convention have made reservations and declarations in respect of the convention.

You must therefore consult the reservations and declarations for the specific state from which evidence is sought to be recovered:

Resources

You can find more information on the operation of the convention and on the Practical Handbook on the Operation of the Convention on the HCCH website.