Gathering Evidence in Aid of Foreign Litigation Guide |
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Ireland |
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(Europe)
Firm
Arthur Cox
Contributors
Richard Willis |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. The procedure for obtaining evidence depends on whether the requesting court is within the European Union (the “EU”), but excluding Denmark, or if the requesting court is outside of the EU. This is discussed further below. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Ireland is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Council Regulation (EC) 1206/2001 on Cooperation Between the Courts of EU Member States in the Taking of Evidence in Civil or Commercial Matters (the “Evidence Regulation”) governs evidence requests originating from within the EU, with the exception of Denmark which has opted out of the Evidence Regulation. The Evidence Regulation has been implemented in Ireland by:
The former nominates the Circuit Court as the competent authority to take evidence in Ireland pursuant to a request under the Evidence Regulation, and the latter introduces Order 23A of the Circuit Court Rules which governs the procedure. Evidence requests from jurisdictions not captured by the Evidence Regulation are governed by the Foreign Tribunals Evidence Act 1856, as amended, (the “1856 Act”), and Order 39, Rules 39-44 of the Rules of the Superior Courts. This process is known as “letters rogatory”. The Evidence Regulation will be repealed and replaced by Regulation (EU) 2020/1783 (the “New Evidence Regulation”) with effect from July 1, 2022. The New Evidence Regulation largely reflects the Evidence Regulation, but makes provision for the implementation of a decentralized IT system comprising national IT systems that are interconnected and technically interoperable for communication and exchange of documents, and encourages the use of videoconferencing for the taking of evidence. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Under the Evidence Regulation, requests must be sent by the requesting court to the Circuit Court who, under Order 23A of the Circuit Court Rules, will assess the request to ensure that it is a request for evidence made in a civil or commercial matter for use in judicial proceedings within the meaning of the Evidence Regulation. Under the letters rogatory procedure, an ex parte application supported by an affidavit must be made to the High Court. If the court is satisfied that the requirements under the 1856 Act and Order 39, Rules 39-44 of the Rules of the Superior Courts are met, the court will make an order allowing the depositions to proceed and giving directions as appropriate. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Article 10.2 of the Evidence Regulation provides that requests are to be executed in accordance with the law of the member state. In Ireland, when a witness is called to give evidence, this is done through examination which may be supplemented by a request that the witness brings written documentation. However, documents requested pursuant to this procedure must generally be ancillary to oral testimony to be given by a witness. Similarly, under the letters rogatory process, a witness may be called to give evidence through examination which may be supplemented by a request that the witness brings written documentation. Requests for documents where the witness summonsed was simply the custodian of the documents sought and had no meaningful evidence to give in respect to the documents have been refused because they were, in essence, a request for discovery. The High Court has jurisdiction in these circumstances to set aside requests altogether or, alternatively, to limit the requirement for the production of documents. |
| Who bears the burden of showing whether any privileges apply? | In general, the onus is on the party claiming that a privilege applies to establish that the evidence is privileged. If that party can establish this, then the onus shifts to the party challenging the claim of privilege to impugn the claim with evidence. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | The Evidence Regulation does not provide that the Circuit Court must satisfy itself that the evidence sought from the witness would be allowable in the jurisdiction of the requesting court, and provides only exceptional circumstances for the refusal of a request for evidence, such as where the witness claims the right to refuse to give evidence or to be prohibited from giving evidence under the law of the requesting state. Order 23A Rule 9(2) of the Circuit Court Rules provides that the County Registrar shall not have the power to decide upon the materiality or relevance of any question put to the witness. Before any order is granted under the letters rogatory procedure, by the High Court, it would be necessary for the requesting party to establish on affidavit evidence that the: (a) evidence proposed to be taken is relevant to the foreign proceedings; (b) application is not oppressive; (c) grant of the request would not override any established privilege or protection available to the prospective witness; and (d) evidence so taken on commission is itself admissible under the law of the requesting state. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | The examination of witnesses may be conducted remotely pursuant to section 11 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, which provides that in any civil proceedings before it, a court may, of its own motion or on the application of any of the parties, direct that the proceedings concerned shall proceed by remote hearing. “Proceedings” includes part of proceedings, and includes the giving of evidence by witnesses. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | There are no rules that prevent Irish residents from giving evidence. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | There is no law preventing a witness from voluntarily giving evidence in one jurisdiction for use in litigation in another jurisdiction. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | The answers above do not materially change in the event that the foreign arbitration is conducted pursuant to the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”). The text of the Model Law is adopted by and reproduced in Schedule 1 of the Arbitration Act 2010 (the “Arbitration Act”). By Article 27 of the Model Law, the arbitral tribunal, or parties to arbitration with the approval of the arbitral tribunal, may request assistance from the High Court in taking evidence. Section 15 of the Arbitration Act provides that the reference to “arbitral tribunal” in Article 27 includes arbitrations with seats outside of Ireland. Order 56, Rule 4(4) provides that in the event of such a request being made and an order granted by the High Court, the rules of Parts II and III of Order 39 relating to the examination of witnesses and issuing of subpoenas shall apply mutatis mutandis, which essentially gives the court the authority to summons witnesses and have them examined on oath. The taking of evidence is confined to the oral testimony of witnesses who have personal knowledge of factual matters in issue and can only be compelled to bring documents in their possession that touch upon their testimony. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes. The procedure for obtaining evidence depends on whether the requesting court is within the European Union (the “EU”), but excluding Denmark, or if the requesting court is outside of the EU. This is discussed further below.
Ireland is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Council Regulation (EC) 1206/2001 on Cooperation Between the Courts of EU Member States in the Taking of Evidence in Civil or Commercial Matters (the “Evidence Regulation”) governs evidence requests originating from within the EU, with the exception of Denmark which has opted out of the Evidence Regulation. The Evidence Regulation has been implemented in Ireland by:
- the European Communities (Evidence in Civil or Commercial Matters) Regulations 2013 (SI.126/2013); and
- the Circuit Court Rules (Taking of Evidence for EU Courts) 2013 (SI.302 of 2013).
The former nominates the Circuit Court as the competent authority to take evidence in Ireland pursuant to a request under the Evidence Regulation, and the latter introduces Order 23A of the Circuit Court Rules which governs the procedure.
Evidence requests from jurisdictions not captured by the Evidence Regulation are governed by the Foreign Tribunals Evidence Act 1856, as amended, (the “1856 Act”), and Order 39, Rules 39-44 of the Rules of the Superior Courts. This process is known as “letters rogatory”.
The Evidence Regulation will be repealed and replaced by Regulation (EU) 2020/1783 (the “New Evidence Regulation”) with effect from July 1, 2022. The New Evidence Regulation largely reflects the Evidence Regulation, but makes provision for the implementation of a decentralized IT system comprising national IT systems that are interconnected and technically interoperable for communication and exchange of documents, and encourages the use of videoconferencing for the taking of evidence.
Under the Evidence Regulation, requests must be sent by the requesting court to the Circuit Court who, under Order 23A of the Circuit Court Rules, will assess the request to ensure that it is a request for evidence made in a civil or commercial matter for use in judicial proceedings within the meaning of the Evidence Regulation.
Under the letters rogatory procedure, an ex parte application supported by an affidavit must be made to the High Court. If the court is satisfied that the requirements under the 1856 Act and Order 39, Rules 39-44 of the Rules of the Superior Courts are met, the court will make an order allowing the depositions to proceed and giving directions as appropriate.
Article 10.2 of the Evidence Regulation provides that requests are to be executed in accordance with the law of the member state. In Ireland, when a witness is called to give evidence, this is done through examination which may be supplemented by a request that the witness brings written documentation. However, documents requested pursuant to this procedure must generally be ancillary to oral testimony to be given by a witness.
Similarly, under the letters rogatory process, a witness may be called to give evidence through examination which may be supplemented by a request that the witness brings written documentation. Requests for documents where the witness summonsed was simply the custodian of the documents sought and had no meaningful evidence to give in respect to the documents have been refused because they were, in essence, a request for discovery. The High Court has jurisdiction in these circumstances to set aside requests altogether or, alternatively, to limit the requirement for the production of documents.
In general, the onus is on the party claiming that a privilege applies to establish that the evidence is privileged. If that party can establish this, then the onus shifts to the party challenging the claim of privilege to impugn the claim with evidence.
The Evidence Regulation does not provide that the Circuit Court must satisfy itself that the evidence sought from the witness would be allowable in the jurisdiction of the requesting court, and provides only exceptional circumstances for the refusal of a request for evidence, such as where the witness claims the right to refuse to give evidence or to be prohibited from giving evidence under the law of the requesting state. Order 23A Rule 9(2) of the Circuit Court Rules provides that the County Registrar shall not have the power to decide upon the materiality or relevance of any question put to the witness.
Before any order is granted under the letters rogatory procedure, by the High Court, it would be necessary for the requesting party to establish on affidavit evidence that the: (a) evidence proposed to be taken is relevant to the foreign proceedings; (b) application is not oppressive; (c) grant of the request would not override any established privilege or protection available to the prospective witness; and (d) evidence so taken on commission is itself admissible under the law of the requesting state.
The examination of witnesses may be conducted remotely pursuant to section 11 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, which provides that in any civil proceedings before it, a court may, of its own motion or on the application of any of the parties, direct that the proceedings concerned shall proceed by remote hearing. “Proceedings” includes part of proceedings, and includes the giving of evidence by witnesses.
There are no rules that prevent Irish residents from giving evidence.
There is no law preventing a witness from voluntarily giving evidence in one jurisdiction for use in litigation in another jurisdiction.
The answers above do not materially change in the event that the foreign arbitration is conducted pursuant to the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”).
The text of the Model Law is adopted by and reproduced in Schedule 1 of the Arbitration Act 2010 (the “Arbitration Act”). By Article 27 of the Model Law, the arbitral tribunal, or parties to arbitration with the approval of the arbitral tribunal, may request assistance from the High Court in taking evidence. Section 15 of the Arbitration Act provides that the reference to “arbitral tribunal” in Article 27 includes arbitrations with seats outside of Ireland.
Order 56, Rule 4(4) provides that in the event of such a request being made and an order granted by the High Court, the rules of Parts II and III of Order 39 relating to the examination of witnesses and issuing of subpoenas shall apply mutatis mutandis, which essentially gives the court the authority to summons witnesses and have them examined on oath.
The taking of evidence is confined to the oral testimony of witnesses who have personal knowledge of factual matters in issue and can only be compelled to bring documents in their possession that touch upon their testimony.