Evidence (Proceedings in Other Jurisdictions) Act 1975

Evidence for civil proceedings

Application to United Kingdom court for assistance in obtaining evidence for civil proceedings in other court

1

Where an application is made to the High Court, the Court of Session or the High Court of Justice in Northern Ireland for an order for evidence to be obtained in the part of the United Kingdom in which it exercises jurisdiction, and the court is satisfied—

• (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (“the requesting court”) exercising jurisdiction in any other part of the United Kingdom or in a country or territory outside the United Kingdom; and

• (b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated,

the High Court, Court of Session or High Court of Justice in Northern Ireland, as the case may be, shall have the powers conferred on it by the following provisions of this Act.

Power of United Kingdom court to give effect to application for assistance

2

• (1) Subject to the provisions of this section, the High Court, the Court of Session and the High Court of Justice in Northern Ireland shall each have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence in the part of the United Kingdom in which it exercises jurisdiction as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose.

• (2) Without prejudice to the generality of subsection (1) above but subject to the provisions of this section, an order under this section may, in particular, make provision—

• (a) for the examination of witnesses, either orally or in writing;

• (b) for the production of documents;

• (c) for the inspection, photographing, preservation, custody or detention of any property;

• (d) for the taking of samples of any property and the carrying out of any experiments on or with any property;

• (e) for the medical examination of any person;

• (f) without prejudice to paragraph (e) above, for the taking and testing of samples of blood from any person.

• (3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court.

• (4) An order under this section shall not require a person—

• (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or

• (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power.

• (5) A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in civil proceedings before the court making the order.

Privilege of witnesses

3

• (1) A person shall not be compelled by virtue of an order under section 2 above to give any evidence which he could not be compelled to give—

• (a) in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction; or

• (b) subject to subsection (2) below, in civil proceedings in the country or territory in which the requesting court exercises jurisdiction.

• (2) Subsection (1)(b) above shall not apply unless the claim of the person in question to be exempt from giving the evidence is either—

• (a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or

• (b) conceded by the applicant for the order;

and where such a claim made by any person is not supported or conceded as aforesaid he may (subject to the other provisions of this section) be required to give the evidence to which the claim relates but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

• (3) Without prejudice to subsection (1) above, a person shall not be compelled by virtue of an order under section 2 above to give any evidence if his doing so would be prejudicial to the security of the United Kingdom; and a certificate signed by or on behalf of the Secretary of State to the effect that it would be so prejudicial for that person to do so shall be conclusive evidence of that fact.

• (4) In this section references to giving evidence include references to answering any question and to producing any document and the reference in subsection (2) above to the transmission of evidence given by a person shall be construed accordingly.

Extension of powers of High Court etc. in relation to obtaining evidence for proceedings in that court

4

The Attendance of Witnesses Act 1854 (which enables the Court of Session to order the issue of a warrant of citation in special form, enforceable throughout the United Kingdom, for the attendance of a witness at a trial) shall have effect as if references to attendance at a trial included references to attendance before an examiner or commissioner appointed by the court or a judge thereof in any cause or matter in that court, including an examiner or commissioner appointed to take evidence outside the jurisdiction of the court.

Evidence for criminal proceedings

Power of United Kingdom court to assist in obtaining evidence for criminal proceedings in overseas court

5

Evidence for international proceedings

Power of United Kingdom court to assist in obtaining evidence for international proceedings

6

• (1) Her Majesty may by Order in Council direct that, subject to such exceptions, adaptations or modifications as may be specified in the Order, the provisions of sections 1 to 3 above shall have effect in relation to international proceedings of any description specified in the order.

• (2) An Order in Council under this section may direct that section 1(4) of the Perjury Act 1911 or Article 3(4) of the Perjury (Northern Ireland) Order 1979 shall have effect in relation to international proceedings to which the Order applies as it has effect in relation to a judicial proceeding in a tribunal of a foreign state.

• (3) In this section “international proceedings” means proceedings before the International Court of Justice or any other court, tribunal, commission, body or authority (whether consisting of one or more persons) which, in pursuance of any international agreement or any resolution of the General Assembly of the United Nations, exercises any jurisdiction or performs any functions of a judicial nature or by way of arbitration, conciliation or inquiry or is appointed (whether permanently or temporarily) for the purpose of exercising any jurisdiction or performing any such functions.

Supplementary

Rules of court

7

Civil Procedure Rules or rules of court under section 7 of the Northern Ireland Act 1962 may make provision—

• (a) as to the manner in which any such application as is mentioned in section 1 above is to be made;

• (b) subject to the provisions of this Act, as to the circumstances in which an order can be made under section 2 above; and

• (c) as to the manner in which any such reference as is mentioned in section 3(2) above is to be made;

and any such rules may include such incidental, supplementary and consequential provision as the authority making the rules may consider necessary or expedient.

Consequential amendments and repeals

8

• (1) The Enactments mentioned in Schedule 1 to this Act shall have effect subject to the amendments there specified, being amendments consequential on the provisions of this Act.

• (2) The Enactments mentioned in Schedule 2 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

• (3) Nothing in this section shall affect—

• (a) any application to any court or judge which is pending at the commencement of this Act;

• (b) any certificate given for the purposes of any such application;

• (c) any power to make an order on such an application; or

• (d) the operation or enforcement of any order made on such an application.

• (4) Subsection (3) above is without prejudice to section 38(2) of the Interpretation Act 1889 (effect of repeals).

Interpretation

9

• (1) In this Act—

• “civil proceedings”, in relation to the requesting court, means proceedings in any civil or commercial matter;

• “requesting court” has the meaning given in section 1 above;

• “property” includes any land, chattel or other corporeal property of any description;

• “request” includes any commission, order or other process issued by or on behalf of the requesting court.

• (2) In relation to any application made in pursuance of a request issued by the High Court under section 56 of the County Courts Act 1984 or the High Court of Justice in Northern Ireland under Article 43 of the County Courts (Northern Ireland) Order 1980, the reference in section 1(b) above to proceedings instituted before the requesting court shall be construed as a reference to the relevant proceedings in the county court.

• (3) Any power conferred by this Act to make an Order in Council includes power to revoke or vary any such Order by a subsequent Order in Council.

• (4) Nothing in this Act shall be construed as enabling any court to make an order that is binding on the Crown or on any person in his capacity as an officer or servant of the Crown.

• (5) Except so far as the context otherwise requires, any reference in this Act to any enactment is a reference to that enactment as amended or extended by or under any other enactment.

Short title, commencement and extent

10

• (1) This Act may be cited as the Evidence (Proceedings in Other Jurisdictions) Act 1975.

• (2) This Act shall come into operation on such day as Her Majesty may by Order in Council appoint.

• (3) Her Majesty may by Order in Council make provision for extending any of the provisions of this Act (including section 6 or any Order in Council made thereunder), with such exceptions, adaptations or modifications as may be specified in the Order, to any of the Channel Islands, the Isle of Man, any colony (other than a colony for whose external relations a country other than the United Kingdom is responsible) or any country or territory outside Her Majesty’s dominions in which Her Majesty has jurisdiction in right of Her Majesty’s Government in the United Kingdom.

SCHEDULE 1

The Perjury Act

1911 In the Perjury Act 1911 after section 1 there shall be inserted—

The False Oaths (Scotland) Act 1933

In section 2 of the False Oaths (Scotland) Act 1933 after paragraph (c) there shall be inserted

The Administration of Justice (Scotland) Act 1933

In section 6(3)(f) of the Administration of Justice (Scotland) Act 1933 for the words " under the Foreign. Tribunals Evidence Act 1856 or under the Evidence by Commission Act 1859 " there shall be substituted the words " under the Evidence (Proceedings in Other Jurisdictions) Act 1975 ".

The Perjury Act (Northern Ireland) 1946

In the Perjury Act (Northern Ireland) 1946 after section 1A there shall be inserted—

The Maintenance Orders (Reciprocal Enforcement) Act 1972

In section 44(2) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 for the words from the beginning to " dominions)" there shall be substituted the words " the Evidence (Proceedings in Other Jurisdictions) Act 1975 ".

SCHEDULE 2

Application to United Kingdom court for assistance in obtaining evidence for civil proceedings in other court.

The Perjury Act 1911

In the Perjury Act 1911 after section 1 there shall be inserted—

In section 2 of the False Oaths (Scotland) Act 1933 after paragraph (c) there shall be inserted “ or(d) in any declaration not falling within paragraph (a), (b) or (c) above, which he is required to make by an order under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, ”.

In section 6(3)(f) of the Administration of Justice (Scotland) Act 1933 for the words “under the Foreign Tribunals Evidence Act 1856 or under the Evidence by Commission Act 1859” there shall be substituted the words “ under the Evidence (Proceedings in Other Jurisdictions) Act 1975 ”.

. . .

In section 44(2) of the Maintenance Orders (Recriprocal Enforcement) Act 1972 for the words from the beginning to “dominions)” there shall be substituted the words “ the Evidence (Proceedings in Other Jurisdictions) Act 1975 ”.

Editorial notes

[^c7014531]: Act not in force at Royal Assent see s. 10(2); Act wholly in force at 4.5.1976.

[^c7014541]: S. 1 extended by S.I. 1976/428, art. 2 and Patents Act 1977 (c. 37), s. 92(1)

[^c7014551]: S. 2 extended by S.I. 1976/428, art. 2 and Patents Act 1977 (c. 37), s. 92(1)

[^c7014561]: S. 2 restricted by Protection of Trading Interests Act 1980 (c. 11, SIF 124:1), s. 4

[^c7014571]: S. 3 extended by S.I. 1976/428, art. 2 and Patents Act 1977 (c. 37) s. 92(1)

[^c7014581]: Words substituted by Supreme Court Act 1981 (c. 54, SIF 37), s. 152(4), Sch. 5

[^c7014611]: S. 5 repealed (10.6.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(3), Sch. 5; S.I. 1991/1072, art. 2(a), Sch. Pt. I, Appendix B

[^c7014621]: 1911 c. 6.

[^c7014631]: Words substituted by S.I. 1979/1714 (N.I. 19), art. 19(1), Sch. 1 para. 26

[^c20885231]: Words in s. 7 substituted (1.4.2005) by Courts Act 2003 (c. 39), ss. 109(1), 110, Sch. 8 para. 177; S.I. 2005/910, art. 3(y)

[^c7014651]: 1962 c. 30.

[^c7014661]: The text of S. 8(1)(2), Sch. 1, Sch. 2 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and, except as specified, does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

[^c7014681]: 1889 c. 63.