Gathering Evidence in Aid of Foreign Litigation Guide |
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Trinidad and Tobago |
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(Latin America/Caribbean)
Firm
Hamel-Smith
Contributors
Jonathan Walker |
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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. | Trinidad and Tobago ("T&T") 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”). The obtaining of evidence in aid of foreign litigation is governed by: The Foreign Tribunals (Evidence) Act 1856 (the "Act of 1856"); the Evidence by Commission Act 1859 (the "Act of 1859") and Part 77 of Civil Proceedings Rules 1998 as amended (the "CPR"). The requirements for obtaining such evidence in Trinidad and Tobago are:
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| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes. Approvals are required by either a judge or a master of the High Court in T&T. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | The evidence that can be obtained extends to depositions, requests for documents and written responses to written questions. |
| Who bears the burden of showing whether any privileges apply? | The person claiming a right to withhold evidence has the burden of asserting that a privilege applies. The information is recorded (in a separate document) and thereafter it falls to the foreign court or tribunal to determine whether it is privileged. Accordingly, the burden of proving whether the privilege applies will ultimately be a matter of foreign law. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No. Generally, it is for the foreign court or tribunal to determine whether the information is allowable. That said, the person soliciting the evidence will have to show that it falls within the scope of the request that was made to the local court. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, with the approval of the court. |
| 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? | Yes. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | The provisions of the legislation that permit the obtaining of evidence in aid of foreign proceedings do not extend to evidence in aid of arbitrations (other than compulsory arbitrations under legislation). As such, there is no mechanism under local law to compel the attendance of witnesses for the purpose of taking their evidence. |
Gathering Evidence in Aid of Foreign Litigation Guide
Trinidad and Tobago
(Latin America/Caribbean) Firm Hamel-SmithContributors Jonathan Walker
Updated 11 Apr 2022Yes.
Trinidad and Tobago ("T&T") 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”).
The obtaining of evidence in aid of foreign litigation is governed by:
The Foreign Tribunals (Evidence) Act 1856 (the "Act of 1856"); the Evidence by Commission Act 1859 (the "Act of 1859") and Part 77 of Civil Proceedings Rules 1998 as amended (the "CPR").
The requirements for obtaining such evidence in Trinidad and Tobago are:
- The foreign court ("requesting court") must authorize (by commission, order or other process – such as by letter of request or letter rogatory) the obtaining of evidence in T&T. In the case of a letter of request, this request must be made to the High Court in T&T (the "receiving court") for a court order that any person named in the request be examined or produce of any writings or other documents included in the request so that such testimony or documents can be transmitted to the requesting court for use in judicial proceedings.
- The party desiring the attendance of the witness must make an application to the receiving court for an order for the examination of the witness. The application must be supported by an affidavit and the request must be exhibited to the affidavit. If the request is not in English, an English translation must be provided.
- If the court grants the order, the order for the examination of a witness may order the examination be taken before: (i) any fit and proper person nominated by the person applying for the order; (ii) an examiner of the court; or (iii) such other qualified person as to the court seems fit.
- The examination must also be taken in the manner provided for by Rules 34.8 to 34.17 of the CPR.
- In respect of depositions, the examiner must send the deposition to the receiving court and the receiving court must give a sealed certificate identifying the request, the order and the deposition and send the sealed certificate with the annexed documents to the Minister of Foreign Affairs for transmission to the requesting court.
- Where a witness claims to be exempt from giving evidence, the receiving court must retain the part of the document containing the witness’ evidence and send the statement and a request to determine the claim to requesting court. If the claim is rejected by the requesting court, the receiving court must send to the requesting court, the document containing the part of the witness’ evidence to which the claim relates, but if the claim is upheld, it must send the document to the witness and must, in either case, notify the witness and the person who obtained the order of the court or tribunal’s determination.
Yes. Approvals are required by either a judge or a master of the High Court in T&T.
The evidence that can be obtained extends to depositions, requests for documents and written responses to written questions.
The person claiming a right to withhold evidence has the burden of asserting that a privilege applies. The information is recorded (in a separate document) and thereafter it falls to the foreign court or tribunal to determine whether it is privileged. Accordingly, the burden of proving whether the privilege applies will ultimately be a matter of foreign law.
No. Generally, it is for the foreign court or tribunal to determine whether the information is allowable. That said, the person soliciting the evidence will have to show that it falls within the scope of the request that was made to the local court.
Yes, with the approval of the court.
No.
Yes.
The provisions of the legislation that permit the obtaining of evidence in aid of foreign proceedings do not extend to evidence in aid of arbitrations (other than compulsory arbitrations under legislation). As such, there is no mechanism under local law to compel the attendance of witnesses for the purpose of taking their evidence.