Gathering Evidence in Aid of Foreign Litigation Guide |
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Barbados |
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(Latin America/Caribbean)
Firm
Clarke Gittens Farmer
Contributors
Kevin Boyce |
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| 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, Barbados is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) Barbados has also enacted the Evidence (Proceedings in Other Jurisdictions) Act, Cap 121A (the “Act”) to give effect to the Hague Evidence Convention and to authorize the Barbados High Court to assist in obtaining evidence required in foreign proceedings. Barbados applies its own procedural rules in executing letters of request under the Hague Evidence Convention. These rules are provided under Part 71 of the Barbados Supreme Court (Civil Procedure Rules) 2008 (the “CPR”). |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Pursuant to section 3 of the Act, the following requirements must be satisfied in order for the court to exercise its powers to make an order for evidence in foreign proceedings:
Barbados has designated The Registrar of the High Court of Barbados as the Central Authority to undertake to receive Letters of Request coming from a judicial authority of another Contracting State in pursuance of Article 2 of the Hague Evidence Convention - https://www.hcch.net/en/states/authorities/details3/?aid=530. Alternatively, an application for an order under Part 71 of the CPR may be made directly to the High Court by any party who seeks to obtain evidence for the purpose of proceedings in a foreign court or tribunal. The power to make such an order may be exercised by a judge in chambers, Master or Registrar of the High Court pursuant to Rule 71.2(1) of the CPR. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Pursuant to section 4 of the Act, the High Court is empowered to make orders for the following:
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| Who bears the burden of showing whether any privileges apply? | A witness asserting privilege may be required to give evidence to which the claim of privilege relates if the claim of privilege is (i) not supported by a statement contained in the request or (ii) conceded by the applicant for the order (CPR 71.6). |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Yes. According to section 5(1)(b) of the Act, a person will not be compelled by the High Court to give any evidence that he could not be compelled to give in civil proceedings in the requesting court’s jurisdiction. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | The court may allow a witness to give evidence without being present in the courtroom by means of a telephone conference call, video conference or any other form of electronic communication in accordance with the Civil Procedure Rules (Rule 2.6(3) CPR). According to Practice Direction 3 of 2020, the High Court of Barbados allows hearings to be conducted virtually on platforms such as Zoom and Microsoft Teams. According to section 3.1(h-i) of the said Practice Direction, witnesses are given specific instructions as to the requirements of giving evidence by way of a live link. |
| 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? | No. |
| 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 prohibition in the Barbados laws to restrict a person from giving evidence voluntarily in foreign proceedings. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | No. Both section 2 of the Act and Rule 71.1(1) of the CPR indicate that the request from the foreign entity can be a court or a tribunal. This includes arbitral tribunals and any authority other than the Supreme Court that exercises judicial or quasi-judicial functions. |
Gathering Evidence in Aid of Foreign Litigation Guide
Barbados
(Latin America/Caribbean) Firm Clarke Gittens FarmerContributors Kevin Boyce
Updated 18 Mar 2022Yes.
Yes, Barbados is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”)
Barbados has also enacted the Evidence (Proceedings in Other Jurisdictions) Act, Cap 121A (the “Act”) to give effect to the Hague Evidence Convention and to authorize the Barbados High Court to assist in obtaining evidence required in foreign proceedings.
Barbados applies its own procedural rules in executing letters of request under the Hague Evidence Convention. These rules are provided under Part 71 of the Barbados Supreme Court (Civil Procedure Rules) 2008 (the “CPR”).
Pursuant to section 3 of the Act, the following requirements must be satisfied in order for the court to exercise its powers to make an order for evidence in foreign proceedings:
- The application must be in pursuance of a request issued by or on behalf of the requesting court; and
- The evidence to which the application relates is to be obtained for the purposes of civil proceedings pending or contemplated before the requesting court.
Barbados has designated The Registrar of the High Court of Barbados as the Central Authority to undertake to receive Letters of Request coming from a judicial authority of another Contracting State in pursuance of Article 2 of the Hague Evidence Convention - https://www.hcch.net/en/states/authorities/details3/?aid=530.
Alternatively, an application for an order under Part 71 of the CPR may be made directly to the High Court by any party who seeks to obtain evidence for the purpose of proceedings in a foreign court or tribunal. The power to make such an order may be exercised by a judge in chambers, Master or Registrar of the High Court pursuant to Rule 71.2(1) of the CPR.
Pursuant to section 4 of the Act, the High Court is empowered to make orders for the following:
- The examination of witnesses, orally or in writing;
- The production of documents;
- The inspection, photographing, preservation of 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;
- The taking and testing of samples of blood from any person
A witness asserting privilege may be required to give evidence to which the claim of privilege relates if the claim of privilege is (i) not supported by a statement contained in the request or (ii) conceded by the applicant for the order (CPR 71.6).
Yes. According to section 5(1)(b) of the Act, a person will not be compelled by the High Court to give any evidence that he could not be compelled to give in civil proceedings in the requesting court’s jurisdiction.
The court may allow a witness to give evidence without being present in the courtroom by means of a telephone conference call, video conference or any other form of electronic communication in accordance with the Civil Procedure Rules (Rule 2.6(3) CPR).
According to Practice Direction 3 of 2020, the High Court of Barbados allows hearings to be conducted virtually on platforms such as Zoom and Microsoft Teams. According to section 3.1(h-i) of the said Practice Direction, witnesses are given specific instructions as to the requirements of giving evidence by way of a live link.
No.
There is no prohibition in the Barbados laws to restrict a person from giving evidence voluntarily in foreign proceedings.
No. Both section 2 of the Act and Rule 71.1(1) of the CPR indicate that the request from the foreign entity can be a court or a tribunal. This includes arbitral tribunals and any authority other than the Supreme Court that exercises judicial or quasi-judicial functions.