UpdateBrexit – the EU and International Judicial Assistance – and Covid-19

January 21, 2021

Brexit just happened. The effects are still happening. The Transition Period has just ended, so there will, no doubt, be litigation as whether something happened or is covered by pre-Brexit, transition or post-Brexit rules.

The EU Recast Evidence Regulation enters into force on 1 July 2022. It envisages more extensive use of technology, including the use of communications technology in the taking of evidence, in particular by using videoconference and teleconference. Commentators have compared the Hague Evidence Convention unfavourably with the EU regulation, on the basis that it is 50 years old.

However, the Hague Conference is modernising. HCCH published a “Guide to Good Practice, The Use of Video-Link” in 2020. As the Guide itself says, “technology moves faster than the law”. It refers to commonly used technology in paragraph 215. That technology was standard videoconferencing technology, but things have moved on.

As of now, the EU regulation does not apply in England, save for requests received prior to the end of December 2020. The UK is now a third country. So how does a court in an EU country obtain evidence from a witness in the UK?

The procedure is that evidence will have to be obtained in England for courts in EU member states via the Hague Convention, as is the case with the USA and many other countries, or letters rogatory. The Evidence (Proceedings in Other Jurisdictions) Act 1975 is the relevant English statute.

I have been involved in a large number of cases involving the taking of evidence in England for use in foreign proceedings, as well as representing witnesses who have been compelled to testify.

In my experience, the English Court is very efficient, pragmatic, practical and willing to help obtain evidence for trial for foreign proceedings. It is crucial that the letter of request is drafted properly in order to be acceptable to the English court. Even during lockdown due to Covid-19, the Court has made orders extremely quickly.

Recent experience is illuminating. For the last three years I have been involved in compelling witnesses in England to give evidence in England for a US antitrust case. We have taken testimony from 25 witnesses pursuant to court orders obtained following letters of request, as well as a number who gave evidence voluntarily.

When the first lockdown started in March last year, we adjourned the examinations (depositions) which had been scheduled. When it became clear that transatlantic travel was not going to happen anytime soon, we started taking testimony by videoconference and obtained orders in relation to further witnesses to give evidence.

The English Court was very accommodating. The Court made orders, including a simple Video Examination Protocol which I had drafted.

The examinations have been conducted using common videoconferencing software, with a live transcript and exhibits being marked in real time electronically available to the witness and parties (possible exhibits having been supplied in advance, in electronic form).

It has all worked very well. In some instances, witnesses have been in their lawyers’ offices. As lockdown became stricter, witnesses have given evidence from their homes alone, with their lawyers, the parties’ lawyers and court reporter each physically alone at home or in their individual offices.

The lawyers in California asking the questions had to start at 4 a.m. their time, but were spared jetlag.

In future, I anticipate that in-person examinations will continue to be preferred for witnesses with the most important evidence, but speed and economics will undoubtedly lead to more depositions taking place by videoconference than was previously the case.

I anticipate that rules may change to allow transmission of letters of request by electronic means.

It may well be that witnesses could give live evidence during trial in other countries by videoconference as a regular feature so that the finders of fact can observe the witness and, if appropriate, add their own questions.

In any event, with the advances in technology and goodwill between contracting states, it should become even easier and cheaper to obtain evidence from other countries.

Steven Loble

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