The Civil Procedure Rules 1998

[F1 II—EVIDENCE FOR FOREIGN COURTS E+W

Textual Amendments

F1 Pt. 34 Section 2 inserted (2.12.2002) by The Civil Procedure (Amendment) Rules 2002 (S.I. 2002/2058), rule 1(b), Sch. 2 Pt. 2

[F2 Scope and interpretation E+W

34.16— (1) This Section applies to an application for an order under the 1975 Act for evidence to be obtainedF3 ....

(2) In this Section—

(a) “the 1975 Act” means the Evidence (Proceedings in Other Jurisdictions) Act 1975 [F4 ; and]

(b) [F5 “the Hague Evidence Convention” means the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters]]

Textual Amendments

F2 Rule 34.16 substituted (1.1.2004) by The Civil Procedure (Amendment No. 4) Rules 2003 (S.I. 2003/2113), rules 1(a), 8

F3 Words in rule 34.16(1) omitted (31.12.2020) by virtue of The Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/521), regs. 1(1), 12(5)(a) (with reg. 23) (as amended by S.I. 2020/1493, regs. 1(1), 9(2)(f); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in rule 34.16(2)(a) inserted (31.12.2020 immediately after the amendments made by S.I. 2019/521, reg. 12) by The Civil Procedure (Amendment No. 3) Rules 2020 (S.I. 2020/747), rules 1(2), 9(3)(a)

F5 Words in rule 34.16(2) inserted (31.12.2020 immediately after the amendments made by S.I. 2019/521, reg. 12) by The Civil Procedure (Amendment No. 3) Rules 2020 (S.I. 2020/747), rules 1(2), 9(3)(b)

[F6 Application for order E+W

34.17— (1) An application for an order under the 1975 Act for evidence to be obtained must be made to the High Court and may be made without notice.

(2) The application may be made either—

(a) by an application notice under Part 23, which must be—

(i) supported by written evidence; and

(ii) accompanied by the request as a result of which the application is made, and where appropriate, a translation of the request into English; or

(b) where—

(i) the requesting state is a party to the Hague Evidence Convention, by a Letter of Request using the Model Form published by the Permanent Bureau of the Hague Conference on Private International Law (which is annexed to Practice Direction 34A); or

(ii) the requesting state is not a party to the Hague Evidence Convention, by a Letter of Request submitted via the Foreign and Commonwealth Office.]

Textual Amendments

F6 Rule 34.17 substituted (31.12.2020 immediately after the amendments made by S.I. 2019/521, reg. 12) by The Civil Procedure (Amendment No. 3) Rules 2020 (S.I. 2020/747), rules 1(2), 9(4)

Examination E+W

34.18— (1) The court may order an examination to be taken before—

(a) any fit and proper person nominated by the person applying for the order;

(b) an examiner of the court; or

(c) any other person whom the court considers suitable.

(2) Unless the court orders otherwise—

(a) the examination will be taken as provided by rule 34.9; and

(b) rule 34.10 applies.

(3) The court may make an order under rule 34.14 for payment of the fees and expenses of the examination.

Dealing with deposition E+W

34.19— (1) The examiner must send the deposition of the witness to the Senior Master unless the court orders otherwise.

(2) The Senior Master will—

(a) give a certificate sealed with the seal of the [F7 Senior Courts] for use out of the jurisdiction identifying the following documents—

(i) the request;

(ii) the order of the court for examination; and

(iii) the deposition of the witness; and

(b) send the certificate and the documents referred to in paragraph (a) to—

(i) the Secretary of State; or

(ii) where the request was sent to the Senior Master by another person in accordance with a Civil Procedure Convention, to that other person,

for transmission to the court or tribunal requesting the examination.

Textual Amendments

F7 Words in rule 34.19(2)(a) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 4

Claim to privilege E+W

34.20— (1) This rule applies where—

(a) a witness claims to be exempt from giving evidence on the ground specified in section 3(1)(b) of the 1975 Act; and

(b) that claim is not supported or conceded as referred to in section 3(2) of that Act.

(2) The examiner may require the witness to give the evidence which he claims to be exempt from giving.

(3) Where the examiner does not require the witness to give that evidence, the court may order the witness to do so.

(4) An application for an order under paragraph (3) may be made by the person who obtained the order under section 2 of the 1975 Act.

(5) Where such evidence is taken—

(a) it must be contained in a document separate from the remainder of the deposition;

(b) the examiner will send to the Senior Master—

(i) the deposition; and

(ii) a signed statement setting out the claim to be exempt and the ground on which it was made.

(6) On receipt of the statement referred to in paragraph (5)(b)(ii), the Senior Master will—

(a) retain the document containing the part of the witness’s evidence to which the claim to be exempt relates; and

(b) send the statement and a request to determine that claim to the foreign court or tribunal together with the documents referred to in rule 34.17.

(7) The Senior Master will—

(a) if the claim to be exempt is rejected by the foreign court or tribunal, send the document referred to in paragraph (5)(a) to that court or tribunal;

(b) if the claim is upheld, send the document to the witness; and

(c) in either case, notify the witness and person who obtained the order under section 2 of the foreign court or tribunal’s decision.

Order under 1975 Act as applied by Patents Act 1977 E+W

34.21   Where an order is made for the examination of witnesses under section 1 of the 1975 Act as applied by section 92 of the Patents Act 1977 the court may permit an officer of the European Patent Office to—

(a) attend the examination and examine the witnesses; or

(b) request the court or the examiner before whom the examination takes place to put specified questions to them.]