Using Evidence from Abroad in Scottish Court Actions

It is common in civil court actions for evidence to be needed from witnesses who are based outwith the jurisdiction of the court the case is being heard. It's not just high value commercial cases which have an international element: we regularly see all kinds of cases where important witnesses are based abroad. So, how do parties to a court action in Scotland go about obtaining their evidence to use at trial?

Letters of Request

The more traditional way of obtaining evidence abroad is for the party who wants the evidence to ask the court in which the action is being heard to issue a Letter of Request (sometimes referred to as Letters Rogatory) to the court of the place where the witness is based. The 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters – or "the Hague Evidence Convention" – developed an international framework for the issuing and execution of Letters of Request. There are 63 signatories to the Convention but there are some notable non-signatories including Canada, New Zealand, Brazil, and most African countries.

The UK gave effect to the Hague Evidence Convention through the Evidence (Proceedings in Other Jurisdictions) Act 1975. It is important to note, though, that the 1975 Act goes further than dealing with just Convention members and applies to Letters of Request from anywhere in the world. The 1975 Act also applies to the taking of evidence in one UK jurisdiction for use in another.

If the Letter of Request is issued by a requesting court in a country which is a member of the Convention, it can be sent to the authority designated by the receiving country for processing and obtaining the required court order. In Scotland, the designated authority is the Scottish Government Justice Directorate. Alternatively, whether the requesting state is a member of the Convention or not, the party who obtained the Letter of Request can make a direct application to the receiving court under the 1975 Act for the required order. The Court of Session deals with all applications in Scotland.

When processing an application, the receiving court can make any order for obtaining evidence which it considers appropriate and which it could make in similar proceedings in a case under its own jurisdiction. These orders are not just limited to requiring a witness to give evidence or produce documents. They can include inspection of property, the taking of samples or experiments. The receiving court's order can be enforced in the usual way meaning witnesses can be compelled to attend to give evidence.

Remote Evidence

During the COVID-19 pandemic remote trials, conducted by video conferencing, became common place. Whilst trials have returned to physical court rooms, more courts than ever now equipped to hold "hybrid" trials with some witnesses joining the proceedings by video link. So, when a witness is based abroad, is it now just a case of having the witness put in front of a webcam to be asked questions? The answer is, probably not.

The first issue is that witness citations issued for Scottish trials can only be enforced in Scotland. So, if the witness you want to take evidence from abroad isn't a willing volunteer, and no order has been obtained from a court in their country, it will be impossible to force them to give evidence.

Another issue is whether the government in the country the witness is located has to be made aware that they are giving evidence to a foreign court. This was recently considered by the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal determined that enquiries must be made of the country in which the witness is located to determine whether it objects to evidence being given orally to a UK Tribunal from within its territory. Although not binding on it, the Employment Tribunals of Scotland and England & Wales have followed this, and their Presidents issued guidance on the matter.

There is no guidance yet from the Scottish courts as to whether such enquiries have to be made and the Tribunal decisions do not apply to court proceedings. However, as hybrid trials become more and more common, it is a question that is likely to be considered in the near future.