Even in Britain, the summer season is finally upon us. Half of our inboxes contain out of office emails from colleagues taking much-needed holidays. Our clients are understandably enjoying time away from work and obligations on trips of their own. However, courts sit year round and a common question among legal representatives is what to do if your witness needs to give evidence from abroad. Our proceedings take place in England or Wales and must normally be attended by parties who are within our jurisdiction (whether in person or remotely).
It is possible for a witness to attend English or Welsh court proceedings from outside our jurisdiction, but this requires proper preparation. Solicitors or litigants-in-person will need to take the below steps in order to obtain the necessary permission to have the witness do so. Direct access barristers will be able to guide their clients through this process.
The civil position is dealt with in Annex 3 of Civil Procedure Rules (CPR) PD32, and the family equivalent is Annex 3 to the Family Procedure Rules (FPR) PD22A. These are hyperlinked at the bottom of this note. They are essentially almost the same in content, but differ in paragraph number and format.
The annexes tell us that permission will be required from two main channels. Firstly, it is required from the foreign government the witness is based in and secondly from our courts to have a witness in said foreign country give evidence from there by video. The court can then make a direction allowing it (or not) after hearing from both parties on the point, following an application by the party requesting permission.
Annex 3 paragraph 5 (Family) and Annex 3 paragraph 4 (Civil) sets out the position on out-of-jurisdiction witnesses giving evidence by video. The family provision is reproduced here to give an example.
It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.
Following this, legal representatives of the party applying for permission (the Applicant) should contact the Foreign, Commonwealth & Development Office to obtain their consent to allowing a witness attending proceedings from a foreign country to be examined by our courts. My research turned up the FCDO contact details below in relation to both family and civil enquiries relating to service of documents and taking of evidence:
Premium Service Legalisation Office
Foreign, Commonwealth & Development Office
King Charles Street (Sanctuary Buildings)
Secondly, the court’s permission for witnesses to attend via video (referred to as video conferencing format, or “VCF” in the annexes will need to be obtained. Attending via video is a separate issue from attending from a different country. The procedure for obtaining permission to have a witness do so is set out in Annex 3 paragraph 9 (Family) and 8 (Civil). The family provision is reproduced here to give an example. Essentially, it is the responsibility of the Applicant who seeks for their witnesses to attend via video to liaise with the court regarding set-up and permission to do so.
The court’s permission is required for any part of any proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the listing officer, diary manager or other appropriate court officer of the intention to seek it, and should enquire as to the availability of court VCF equipment for the day or days of the proposed VCF. If all parties consent to a direction, permission can be sought by letter, fax or e-mail, although the court may still require an oral hearing. All parties are entitled to be heard on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. If a VCF direction is given, arrangements for the transmission will then need to be made. The court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter referred to as ‘the VCF arranging party’.
The full Family annex can be found here, which gives further guidance on costs and logistics of witnesses attending remotely or from abroad: https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_22a#IDA4NTAC
The full Civil annex can be found here, giving the same: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32#annex3
Barristers at Becket Chambers represent clients across a full range of civil and family law practice areas. For more details please contact firstname.lastname@example.org