Organising examination out of the jurisdiction

The amount of cross-border litigation continues to increase and so are the numbers of cases which are proceeding in one jurisdiction where one or more witnesses reside in another jurisdiction. This is particularly the case in relation to US cases where a witness is resident in the jurisdiction of England and Wales (and vice versa). Where a witness is willing to give evidence, the jurisdictional issue poses no problem, but what can be done where the witness is unwilling to give evidence? The service of a normal witness summons is clearly not possible.

There is of course a procedure for this and it is governed by CPR 34.16 - 34.21 and practice direction 34 rule 6.1 - 6.8. The practicalities of using this procedure are, however, rather unusual and not obvious to someone using the procedure for the first time - or at least were not obvious to me when I recently arranged for an English witness domiciled in Surrey to be examined at the High Court in relation to a case proceeding in the United States District Court, Southern District of New York.

When making an application for permission to follow a certain procedure or to force the other party to the litigation to do what you want them to do, we are used to making the application and then, if the judge makes the order in the form that we have asked for (or a modified form), seeing that the order is implemented. When applying for an order for examination of a witness out of the jurisdiction, however, the procedure to follow is in effect the other way around.

Same rules, different order

While the application form itself is the familiar N244, accompanied by a witness statement and exhibit in support and a draft order, you first need to implement the steps in the order, on the assumption that the court will make the order that you want.

First of all, you need to go to the Foreign Process Section of the Royal Courts of Justice (assuming that you are making the application in London) - Room E16 - and obtain contact details for one of the approved examiners. These are often retired judges or masters and the Foreign Process Section will only give you the name and contact details of one examiner at a time. You then need to make contact with the examiner and find out if he can carry out the examination at a date and time which is convenient for the US attorney who will be carrying out the examination (assuming that he will be coming over from the States, rather than appearing via video link or instructing London counsel). It is sensible to choose a date not less than about four weeks in advance because of the other steps you then have to take.

You need to book a venue (provisionally at least, until the court has made the order you want). There are a number of possible venues. The most commonly used are the offices of alternative dispute resolution companies, but a good value alternative is the Royal College of Surgeons, who have a very impressive looking building in Lincoln's Inn Fields and large rooms, as well as the necessary technical facilities.

Approved and served

Once these arrangements for the examination have been made, the application can then be issued and lodged at the Foreign Process Section, together with the witness statement and exhibit in support (explaining why the witness is important, what efforts have been made to contact him and the fact that he is unwilling to co-operate), as well as a draft order.

It is this draft order which needs to state the date and time of the examination and the venue. Normally, US courts do not allow a witness to be examined for more than seven hours a day, excluding breaks, but in practice the examiner may restrict the examination to a total of seven hours and so it is sensible for the examination to start not later than 10:00 am.

The order also needs to summarise, in a few lines, what the witness will be asked about in examination.

The senior master will then, assuming all is in order, approve the order and it will be sealed and sent out. One crucial point, when lodging the application notice and other papers with the Foreign Process Section is that you must also produce the original letter from the US judge (known as 'letters rogatory'), asking the High Court to order the examination of the witness - a copy will not do.

As well as serving the application, evidence and order on the other party to the litigation, you must also serve the witness (the first respondent). As well as serving the papers, you must also serve conduct money, the amount being calculated in accordance with the Costs in Criminal Cases (General) Regulations 1986. While postal service is acceptable, the reality is that service ought '¨to be effected personally, bearing in mind the efforts you are going to in order to have this witness examined. The witness can apply to set aside the application if he has '¨a good reason.

Real and virtual

The next step is to confirm the booking with the videographer and stenographer, who must be present at the examination. In practice, Marten Walsh Cherer have a department dedicated solely to examining English witnesses for US cases.

Something else to consider at this stage is whether one or both US attorneys wishes to attend by way of video link. This does not present any problems, as long as it is organised in advance - the organisations with experience of providing rooms for examinations of this kind generally also have facilities available for video links, via a computer screen. The examiner does not usually require papers in advance and is usually content to have them provided on the day of the examination.

English procedure rules

The examination itself is conducted in accordance with the Civil Procedure Rules and not US procedures. In practice, this causes no difficulty and examiners normally only have to be alert to US attorneys asking the witness questions as to what legal advice he has received. It is therefore sensible to notify US attorneys in advance that information like this is privileged in English law and they cannot ask such questions - save where privilege is waived, as it was in a case I dealt with recently. It is important to bear in mind that the party who has issued the application will not be able to cross examine the witness - examination will be in chief only, although of course the other party will be able to cross-examine.

Clearly, it would be helpful if both sides were able to agree on a bundle in advance, but this is not usually feasible and the parties' attorneys usually produce numbered exhibits, which can create a great deal '¨of paperwork.

After the examination, the company you have engaged to provide videography and stenography will produce a DVD (normally),transcription and the exhibits, usually scanned. These will then need to be sent to the witness and the examiner to sign off and, after that, sent to the senior master who needs to certify the deposition and send it on to the US court.

As you can imagine, obtaining depositions in this way is not particularly cheap. Assuming that the examination will take just one day, you should allow for up to about £3,000 in disbursements. One financial advantage of accepting instructions from a US law firm is that they will not be liable for VAT and so, if possible, arrange for the venue, stenographers etc. to invoice the US firm directly - otherwise reclaiming the VAT is likely to be troublesome. Finally, the deposition records need to be served on all the parties.

As with most applications, it is actually '¨a straightforward and logical procedure - once you are familiar with its particular quirks and oddities.