Gathering Evidence in Aid of Foreign Litigation Guide |
|
Jersey |
|
|
(Europe)
Firm
Mourant
Contributors
Stephen Alexander |
|
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| 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. | Yes. Jersey is party to the Hague Evidence Convention. The statutory requirements for obtaining evidence in aid of foreign litigation are set out in Part 2 of the Service of Process and Taking of Evidence (Jersey) Law 1960 and in the Taking of Evidence Rules 2019. A foreign court or tribunal which seeks to obtain evidence in Jersey must make an application to the Royal Court, supported by an affidavit, which must be accompanied by details of the request being made. In accordance with Article 3 of the Hague Evidence Convention, the request must set out, among other things, the nature of the proceedings, the evidence to be obtained and the means of obtaining it. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | A foreign court or tribunal which seeks to obtain evidence from Jersey in aid of proceedings in that jurisdiction must make an application to the Royal Court to make such a request. The Royal Court has the power to make orders to make such provision for obtaining evidence in Jersey as may appear to be appropriate for the purpose of giving effect to the request from the foreign court or tribunal. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Courts seeking assistance from the Royal Court may obtain information in the following forms:
|
| Who bears the burden of showing whether any privileges apply? | The burden rests on the witness who has been called to give evidence to show that they are exempt on the grounds of privilege. The person's claim of privilege must either be supported by a statement containing the request of the foreign court seeking assistance or be conceded by the applicant for the order. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Yes. The Royal Court will only make an order for a person to give evidence to assist in foreign proceedings if the person would be compelled to give such evidence in proceedings in the country in which the requesting court exercises jurisdiction. In addition, an order made by the Royal Court to make provisions for a request from a foreign court or tribunal may not require any steps to be taken which cannot be taken in the context of civil proceedings in the Royal Court itself. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | The Royal Court may direct that the examination of a witness be conducted by the Viscount (the executive officer of the Royal Court) or such other qualified person as it sees fit. The examination must be conducted in the same way as if the witness were giving evidence at a trial, save that the witness is permitted to have a legal adviser present when giving evidence. The examiner may conduct the examination in private if they consider it appropriate to do so, and the evidence given must be recorded. While the Royal Court has the power to order that the examination of a witness is undertaken via remote video link, it will only do so if it is assumed that there is a good reason why the person being examined cannot appear in person. The Royal Court will consider a number of factors, such as the personal circumstances of the witness and their relative importance to the proceedings as a whole when determining whether to allow the examination of a witness remotely. |
| 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? | Article 5 of the Service of Process and Taking of Evidence (Jersey) Law 1960 provides that a person shall not be compelled to give any evidence if he or she could not be compelled to give the same evidence in Jersey proceedings or in civil proceedings in the country where the assistance is requested. A person shall also not be compelled to give evidence if their doing so would be prejudicial to the security of the British Islands. |
| 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 statutory restriction on Jersey citizens giving evidence in foreign proceedings voluntarily (i.e. where this has not been at the request of the foreign court or tribunal). |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | The statutory provisions which govern the taking of evidence in Jersey to assist in foreign proceedings apply to both court proceedings and those taking place in tribunals (i.e. arbitration). |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes.
Yes. Jersey is party to the Hague Evidence Convention.
The statutory requirements for obtaining evidence in aid of foreign litigation are set out in Part 2 of the Service of Process and Taking of Evidence (Jersey) Law 1960 and in the Taking of Evidence Rules 2019.
A foreign court or tribunal which seeks to obtain evidence in Jersey must make an application to the Royal Court, supported by an affidavit, which must be accompanied by details of the request being made. In accordance with Article 3 of the Hague Evidence Convention, the request must set out, among other things, the nature of the proceedings, the evidence to be obtained and the means of obtaining it.
A foreign court or tribunal which seeks to obtain evidence from Jersey in aid of proceedings in that jurisdiction must make an application to the Royal Court to make such a request. The Royal Court has the power to make orders to make such provision for obtaining evidence in Jersey as may appear to be appropriate for the purpose of giving effect to the request from the foreign court or tribunal.
Courts seeking assistance from the Royal Court may obtain information in the following forms:
- The examination of witnesses either orally or in writing;
- The production of documents;
- The inspection, photographing, preservation, custody or detention of any property;
- The taking of samples of any property and the carrying out of any experiments on or with any property;
- The medical examination of any person; and
- The taking and testing of samples of blood from any person.
The burden rests on the witness who has been called to give evidence to show that they are exempt on the grounds of privilege. The person's claim of privilege must either be supported by a statement containing the request of the foreign court seeking assistance or be conceded by the applicant for the order.
Yes. The Royal Court will only make an order for a person to give evidence to assist in foreign proceedings if the person would be compelled to give such evidence in proceedings in the country in which the requesting court exercises jurisdiction. In addition, an order made by the Royal Court to make provisions for a request from a foreign court or tribunal may not require any steps to be taken which cannot be taken in the context of civil proceedings in the Royal Court itself.
The Royal Court may direct that the examination of a witness be conducted by the Viscount (the executive officer of the Royal Court) or such other qualified person as it sees fit. The examination must be conducted in the same way as if the witness were giving evidence at a trial, save that the witness is permitted to have a legal adviser present when giving evidence. The examiner may conduct the examination in private if they consider it appropriate to do so, and the evidence given must be recorded.
While the Royal Court has the power to order that the examination of a witness is undertaken via remote video link, it will only do so if it is assumed that there is a good reason why the person being examined cannot appear in person. The Royal Court will consider a number of factors, such as the personal circumstances of the witness and their relative importance to the proceedings as a whole when determining whether to allow the examination of a witness remotely.
Article 5 of the Service of Process and Taking of Evidence (Jersey) Law 1960 provides that a person shall not be compelled to give any evidence if he or she could not be compelled to give the same evidence in Jersey proceedings or in civil proceedings in the country where the assistance is requested. A person shall also not be compelled to give evidence if their doing so would be prejudicial to the security of the British Islands.
There is no statutory restriction on Jersey citizens giving evidence in foreign proceedings voluntarily (i.e. where this has not been at the request of the foreign court or tribunal).
The statutory provisions which govern the taking of evidence in Jersey to assist in foreign proceedings apply to both court proceedings and those taking place in tribunals (i.e. arbitration).