If you need to depose a witness located in the United Kingdom on behalf of one of your American clients, there are several things you should know. Below is a basic primer on the process, what to expect, and what pitfalls to avoid.
Subpoena or Agreement of Testimony
Lawyers who are wanting to depose a witness and/or obtain production of documents from a witness or entity in England and Wales by either:
● Having a voluntary agreement; or
● Compulsion under a subpoena order;
Notably, a voluntary deposition can be on the terms that the parties agreed to including what law and procedure apply. If the parties are unable to come to an agreement, then a court-ordered deposition must adhere to the applicable rules of English law and practice.
Submission of Letter of Request
If the parties are unable to come to an agreement, then the party seeking to depose the foreign witness must petition the American court to issue a letter of request to the UK High Court for the deposition of a witness under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“TEACC”). A letter of request should have details of the claim and identify the possible witnesses, details of evidence sought, as well as any documents the witness is required to produce. These letters must be drafted with care, ensuring compliance with English law and rules, so that they are not rejected.
Application to High Court
Once the letter of request has been issued and sent to a UK Court, an English lawyer must then petition the High Court in London for an order to effectuate the letter and appoint an examiner responsible for the supervision of the deposition. An examiner is a neutral, approved by the High Court, who performs a quasi-judicial role in the matter. While a foreign lawyer or consular may be an examiner, an English lawyer is typically preferred. Any of the examiner’s fees and expenses are paid by the party seeking to take the deposition.
A court order will include the specific documents that must be requested and may include the questions sought to be asked of the witness. The application to the High Court may be made with or without notice to the other party and the potential witness. If made without notice, the party
and/or witness has the opportunity to object and apply to dismiss all or part of the High Court’s order.
International Litigation Support
If you need to serve a lawsuit on a foreign defendant, or simply need international litigation support to include deposing a witness in the UK, contact Ancillary Legal today. Our team has significant experience and can support all your domestic and international litigation needs.