Beware – Giving oral evidence from outside the UK is not as straight forward as you may think

Hybrid and/or remote working is now the norm for many people in a post COVID world. For some people that can mean working from different jurisdictions – either for a short period (often referred to as a workation) or indeed permanently relocating.

But what if a witness is required to give evidence in a UK court, but they are in an external country, outside of the UK? Proceedings taking place in England and Wales must normally be attended by parties who are within this jurisdiction, whether in person or remotely.

It is possible for a witness to give evidence from outside the jurisdiction, but it does require proper preparation. There is a little known rule in the Civil Procedure Rules (paragraph 4 of Annex 3 to Practice Direction 2) where permission is required from an external country, before you are able to give oral evidence to English and Welsh civil courts.

This applies to both civil hearings and tribunals (with the rules and process for the later slightly different)

The following steps need to be taken in order to obtain the necessary permission

• A Letter of Request sent to the Royal Courts of Justice, with accompanying documents, who then seal it and send it to the external country
• The external country then request a translated version of the letter of request
• When approved – the external country approve the request
• The local County Court (in the UK) can be notified that the formalities have been done and the witness is able to give their oral evidence

What happens if this process is not followed?

• If the above steps are not taken, a Judge could refuse to allow permission for a crucial witness, to give oral evidence
• The witness (and other parties involved) may fall foul of international rules on giving evidence

While the above steps may appear to be time consuming, it is a process that in the end guarantees that evidence can be given from another jurisdiction which ultimately will ensure that cases are heard properly and time and costs implications can be minimised.

And as we see the popularity of remote working patterns only increase, the incidences of needing to follow these processes is only like to increase.

Employment

Contact: Matt McDonald  matt.mcdonald@shma.co.uk

Philip Pepper philip.petter@shma.co.uk