Navigating remote evidence post-Brexit: key steps under the Hague Convention
Following the UK's departure from the EU, the process of taking remote evidence in UK proceedings from factual and expert witnesses located in Europe has become more complex, especially when testimony is given via video-link. This challenge has become more evident in recent years with the rise of remote working, as video-conferencing has become the norm in day-to-day business, leading to an expectation that factual witnesses located abroad can provide testimony remotely in UK proceedings. However, post-Brexit, this is not always the case, and complications can arise along the way.
The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”) has become the primary framework for remote testimony now that the EU’s Regulation 1206/2001 no longer applies to the UK.[1] Indeed, the current limitations on obtaining remote evidence from witnesses located in Europe are unlikely to change in the near future, given the EU Commission’s decision to block the UK’s reaccession to the Lugano Convention, which would have streamlined legal cooperation with European countries post-Brexit.
With that in mind, this article is a post-Brexit practitioner’s guide to navigating the process of giving evidence remotely under the Hague Convention, focusing on European jurisdictions.
The legal framework post-Brexit
The EU Regulation 1206/2001 provided a clear, harmonised procedure for giving evidence remotely across the EU via video-link, and which allowed national courts to make direct requests for remote testimony from witnesses located in other EU Member States. In contrast, under the Hague Convention, this process must be done by the parties to the proceedings, typically either through “Letters of Request” or via the consensual procedure under Article 17.
The Letters of Request option is a formal method that involves a judicial authority in the UK (such as the High Court’s Foreign Process Section) sending a request to the judicial authorities in the witness’s country of residence, who then handle the evidence collection. This method ensures compliance with local laws and provides a high degree of legal formality, but it can be slow and cumbersome, often taking several months to process due to bureaucratic hurdles.
Alternatively, there is the Article 17 procedure, which typically uses a commissioner appointed by the requesting court (e.g. a UK court or tribunal) to oversee the taking of evidence. This procedure offers a more flexible and expedited approach, and requires less involvement from the local courts. Depending on the country, this significantly accelerates the process, reducing it from a matter of months to mere weeks.
It is also worth keeping in mind that a request under Article 17 may be rejected by the designated local authority if the method of taking evidence is incompatible with local laws. For example, a request for taking evidence by way of an English-style cross-examination could be rejected by a German court if the court considers cross-examinations to be incompatible with national German law. In that case, witnesses giving evidence voluntarily will likely need to travel to the UK to give evidence in person.
Procedure for complying with the Article 17 procedure
In order to comply with the Hague Convention where the Article 17 procedure is available to the parties, practitioners must first seek permission from the relevant UK court or tribunal. Once permission is obtained, the UK court or tribunal can issue a “Request for Assistance” and appoint a commissioner to observe the evidence taking. The Request for Assistance is addressed to the relevant designated authority in the witness’s country of residence.[2] The designated authority approves the authorisation and formally permits the commissioner to oversee the evidence-taking process in accordance with local laws. The commissioner must comply with any conditions set by the designated authority.
Depending on the jurisdiction, the authorisation process can be the most time-consuming aspect of the Article 17 procedure. For instance, while approvals from French authorities may take 7 to 10 days, Italian approvals can take up to a month. All legal documents, including consent orders, typically need to be translated into the local language, further adding to the preparation timeline.
Practical considerations for remote evidence
Practitioners should be aware of any country-specific requirements regarding the commissioner’s duties prior to filing an application for the provision of remote evidence. For example, both France and Germany’s accession to the Hague Convention is subject to certain derogations which apply to Article 17.
When adducing remote evidence from witnesses located in multiple countries, there may be cost savings if the same commission can be appointed for all witnesses. If the appointed commissioner is also attending the hearing remotely, arrangements should be made in advance with the court or tribunal to ensure that they can observe the witness’ testimony without disruption.
Importantly, witnesses providing remote evidence under the Hague Convention do so voluntarily, meaning that their participation cannot be compelled in the same manner as for a witness domiciled in the UK (or as it may have been under EU Regulation 1206/2001). This voluntary nature emphasises the need for clear communication and cooperation with witnesses.
Conclusion
The post-Brexit reliance on the Hague Convention for remote evidence gathering introduces a range of challenges, particularly when navigating restrictive local laws. However, by understanding these procedures and planning early, legal practitioners can effectively secure vital witness testimony while remaining compliant with both international and local regulations. This preparedness is crucial for managing cross-border cases, especially in high-stakes damages claims. Given the potentially severe consequences of non-compliance for witnesses under their local laws, of which most witnesses will be unaware, employers also have a moral if not legal burden to ensure the right procedure is followed and that their employees are adequately protected.
Footnotes
[1] From 31 December 2020 and following the end of the implementation period of the UK’s withdrawal from the EU, the Taking of Evidence Regulation (1206/2001) ceased to apply to the UK, having been revoked by the Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018 (SI 2018/1257). The Regulation’s provisions have not been preserved by the European Union (Withdrawal) Act 2018.
[2] The designated authority can be found in each country’s profile on the Hague Convention website.