Obtaining evidence in Jersey at the request of a foreign court
24 July 2012
The purpose of this briefing is to summarise the procedure for obtaining evidence in Jersey at the request of a foreign court (the "Requesting Court") in civil or commercial proceedings pending or in contemplation outside the Island.
The Service of Process and Taking of Evidence (Jersey) Law 1960 (the "1960 Law") was amended in 1985 to enable Jersey to fulfil its international obligations under the Hague Convention, the purpose of which is to improve international judicial cooperation in civil and commercial matters. Where the relevant criteria are met, the Requesting Court may apply to the Royal Court of Jersey (the "Royal Court") for assistance in obtaining evidence. The Royal Court has power to make provision for the obtaining of such evidence in Jersey as appears to it to be appropriate in the circumstances.
Issue of Request
Where the Requesting Court has issued a Letter of Request ("Request") seeking the assistance of the Royal Court to obtain evidence in Jersey, the Request should be remitted with the sealed, original order of the Requesting Court, to the Attorney General on behalf of the Royal Court. The Law Officers' Department will advise whether it will progress the Request or whether legal representation in Jersey must be engaged for the purpose. Where it is appropriate for a private firm to deal with the matter, the Law Officers' Department will act as a conduit for information.
Content of a Request
The Request and/or its accompanying instructions may take such form as the Requesting Court deems expedient but should specify the following:
- the name and address of the sender;
- the requesting authority;
- any critical dates;
- the names and addresses of the parties and their representatives;
- the requirements for notification of the Jersey examination;
- the nature of the proceedings;
- the evidence to be obtained and the means of obtaining it;
- the names and addresses of the persons to be examined;
- the questions to be put to the persons to be examined or a statement of the subject matter about which they are to be examined;
- details of documents and/or property to be inspected;
- the requirement as to the giving of evidence on oath or otherwise;
- whether foreign counsel are to be present at the Jersey examination;
- what documents are to be served on the witnesses and whether they will be given advance notice of the questions they will face;
- arrangements to discharge any disbursements incurred;
- any requirements for an interpreter, sound recordist, shorthand writer or transcriber;
- arrangements to be made for the production and authentication of the transcript;
- the intended recipients of the transcript and the means by which it will be transmitted to them; and
- the details of any claims to privilege that may be asserted by the witnesses.
Grant of a Request
In granting a Request the Royal Court may make such provisions as it sees fit, for example, for:
- the examination of witnesses, either orally or in writing;
- the production of documents; and
- the inspection or protection of any property.
Nevertheless, an order made under the 1960 Law cannot require any steps to be taken which may not be taken in the context of ordinary civil proceedings before the Royal Court.
An order made under the 1960 Law may only require the production of documents specified in the order as documents appearing to the Royal Court to be in the possession of a witness. Any wider "fishing expeditions" will, as is usually the case, be discouraged by the Royal Court.
Any party required to give evidence before the Royal Court can be summoned to appear with a minimum notice period of two clear business days. Any witness who is not willing to attend examination must be personally served with a witness summons compelling him to so attend. It is usually advisable to liaise with the witness beforehand in order to ascertain his willingness and his availability. Wherever possible, willingness is preferable. Where time permits, enabling a witness the time to prepare may be advantageous. For example, a business professional may not be able to prepare himself adequately to give evidence and produce documents in a complicated commercial matter within the minimum notice period.
The examination will take place in a private court room. The public has no right of admission. Usually, the Royal Court appoints an officer called the Viscount (the chief executive officer of the court) or the Judicial Greffier (the clerk to, and interlocutory judge of, the court) (the "Presiding Officer") to conduct the examination.
The form of the proceedings will to some extent be decided by the nature of the Request. For example, if a Request simply requires the witness to answer a number of specified questions, the entire examination may be conducted by the Presiding Officer, with only the witness and a sound recordist or shorthand writer present. However, it is recommended that a Request seeking authority to ask particular questions should always seek to include a more general power of examination in relation to such questions. Such a facility would enable background and supplementary issues to be explored in addition to the primary ones.
Attendance of counsel
Foreign counsel or solicitors may appear in order to conduct the examination of the witnesses. However, it is usually advisable for a Jersey advocate or solicitor to attend in addition, to introduce the proceedings to the Presiding Officer, and to deal with any aspect of Jersey law or procedure which may arise.
A witness may be represented by counsel during the course of the examination. Counsel's function in this instance is purely protective: for example, to enable the witness properly to raise claims for privilege or objection. It is not permissible for the witness to confer with, or seek advice from, counsel as to how he should answer the questions put to him.
When a witness is giving evidence, he cannot be compelled to give any evidence which he could not be compelled to give in such proceedings in Jersey or in the country in which the Requesting Court has jurisdiction. However, in the latter circumstances, privilege is not claimable, unless supported by a statement contained in the Request, or conceded. Nonetheless, the 1960 Law permits the taking of the evidence provisionally where neither avenue is available. In such a case, the witness will answer the questions put to him, and the Requesting Court will decide upon the validity of the objections.
As in other Jersey proceedings, a witness could object to answering questions on the grounds of unwarranted breach of third party confidentiality. If such an objection is raised by a witness, the Presiding Officer will make a note of the claim or objection and of the grounds for it. Once such an objection is raised, the Presiding Officer has no power to direct the witness to answer the question. If necessary, the matter will be referred back to the Royal Court for a decision on whether the witness must indeed answer the question in issue. It is generally accepted that there are circumstances in which the court may decide, in the public interest, that a witness should not be compelled to answer a question which would involve a breach of confidentiality. In such circumstances, the court will have to undertake a balancing exercise between the public interest in preserving the integrity of relationships to which confidentiality is a key factor, such as the banker-client relationship, and the public interest in not permitting such confidential relationships to be used as a 'cloak' to conceal improper or fraudulent activities.
Production of documents
Whilst a witness can be compelled to produce documents, the details of the documents required should be specified very precisely in the Request. A witness will not be obliged to produce documents where those documents are sought for the purposes of general discovery rather than proof of the matter in issue. Each individual document should be separately described. Generic descriptions such as "correspondence" will not suffice.
Oral evidence may be tape-recorded and/or transcribed. In certain circumstances, it is permissible for the evidence to be video taped. The Requesting Court may seek the production of any such video tapes or transcripts. All disbursements relating to the provision of such services will be payable by the applicant party.
The proceedings take place in private and, in appropriate circumstances, "gagging" orders can be obtained to prevent witnesses from disclosing to any party that they have been subjected to examination. Such an order can also extend to prevent any unauthorised use, copying or dissemination of the transcript of the Jersey proceedings. Any requirement for such an order should be included in the Request.
Normally, the completion of a witness's examination serves to finalise his testimony. However, circumstances can arise in which counsel may need to reserve the right to further examination and so adjourn rather than acknowledge the examination as complete.
Subject to any special requirements of the Requesting Court, once the witness has approved the transcript of his evidence, he will be required to appear before the Presiding Officer in chambers to authenticate the transcript by signing it. The Presiding Officer will then countersign it in the presence of the witness. Counsel are not normally present for this procedure. If the witness is unavailable for any reason, his transcript may be authenticated by the Presiding Officer alone. The witness can usually retain a copy of the authenticated transcript. Once authenticated, the transcript will be sent to the Requesting Court.
Costs and disbursements
The Hague Convention precludes the use of a Request for the purpose of reimbursement of taxes or costs of any nature. It follows that it is not appropriate for the Royal Court to make any order as to costs. Costs will, in all cases, fall to be determined at a later date by the Requesting Court.
A witness may claim reimbursement for disbursements. However, such claims should be limited to the type of attendance allowance ordinarily granted to witnesses in civil proceedings before the Royal Court: for example, fees paid, the cost of any interpreter and attendance costs. A witness would not normally be entitled to claim the cost of employing counsel or for time spent preparing to give evidence and organising documentation.
This briefing is based on an article appearing in the Jersey Law Review Volume 3 Issue 3 "A Guide to the Obtaining of Evidence in Jersey" by Michael Wilkins and Anthony Dessain. It is reproduced by kind permission of the Editorial Board.