Cross-border disputes often depend on evidence that sits outside the jurisdiction where proceedings are taking place. A key witness may be based overseas, or important documents may be held by a third party in another country. In these situations, parties cannot assume that domestic procedural rules will enable them to obtain the evidence they need.
One of the principal mechanisms for obtaining evidence across borders is the letter of request. This procedure is generally used where evidence cannot be obtained voluntarily.
What is a letter of request?
A letter of request is a formal request from a court in one jurisdiction to a court in another jurisdiction asking it to obtain evidence for use in civil or commercial proceedings.
Typically, the receiving court will arrange for a witness to be examined, or require specified documents to be produced for the requesting court.
For example, if English proceedings require evidence from a witness based in the United States who refuses to attend trial voluntarily, the English court may issue a letter of request asking the relevant US court to examine that witness.
When are letters of request needed?
The procedure is generally used where evidence cannot be obtained voluntarily.
Where an overseas witness is willing to cooperate, there may be more straightforward alternatives. Depending on the circumstances and local law, the witness may attend trial in England, give evidence by video link or provide evidence before a special examiner. However, some jurisdictions require a formal letter of request even where a witness is willing to participate remotely or before a commissioner.
Letters of request therefore become particularly important where:
- a witness refuses to give evidence voluntarily;
- documents are held by a third party overseas;
- local law requires judicial involvement before evidence can be taken; or
- compulsory powers are needed to obtain evidence.
The legal framework in the UK
The procedure for Letters of Request is made possible through The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, which is given effect in England and Wales law through the Evidence (Proceedings in Other Jurisdictions) Act 1975.
Evidence that may be requested
Pursuant to section 2(2) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, the follow evidence may be requested in a Letter of Request:
- The examination of witnesses, either orally or in writing
- The production of documents
- The inspection, photographing, preservation, and custody 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 a person
In our experience, the most commonly requested information is (i) the examination of witnesses and (ii) the production of documents.
Production of a specified category of documents
The request must comply with the disclosure process in the relevant jurisdiction, and in the UK a restrictive approach is taken.
The request must identify specific documents that are known to exist. Classes of documents are not generally allowed, but a compendious description of date ranges may be permissible.
Under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975, the courts of England and Wales have no power to order evidence to be taken that could not itself be ordered in English civil proceedings. That means that the documents sought must be relevant to the issues in dispute at trial and not for investigatory purposes.
This provision often comes as a surprise to US parties, who are used to the concept of pre-trial discovery, which is much broader. The requests must be relevant to the issues for trial. In Byju’s Alpha Inc v OCI Limited & Ors [2025] EWHC 271 (KB), the use of category type definitions was one element of proof that the substantive consequence of the Letter of Request would be pre-trial discovery rather than specific evidence for trial. This contributed to the decision to refuse the Letter of Request in that case.
Provision of oral evidence from specified witnesses
If the witness is willing to give evidence in support of proceedings abroad, then there is no need for a letter of request. However, often witnesses are disinclined to give evidence in a trial in which they are not directly involved.
In those circumstances, a letter of request will be required. The applicant must name the specific witness and explain how the witness can reasonably be expected to have relevant evidence to give on the topics mentioned in the request.
The request must fully explain how the individual is directly connected to the issues in the case, and it must outline the specific topics or questions intended for that person.
The English court will then assess whether the witness could reasonably be expected to have relevant evidence to give on the topics articulated in the letter of request.
The English court has a broad discretion whether to issue a request. In exercising that discretion, it may consider factors including:
- the importance of the evidence;
- the witness's health;
- the likely cost of obtaining the evidence; and
- whether the exercise is proportionate in terms of cost, delay and disruption.
This reflects the court's objective of balancing the need for relevant evidence against the burden placed on the parties, witnesses and the court system.
If a witness is located in another jurisdiction, the courts in England and Wales cannot compel the witness to give evidence at trial. However, the court can order that the witness gives evidence and that their evidence is sent to the requesting court for use in their judicial proceedings.
The examination is conducted in the same way as taking evidence at an English High Court trial. The witness will be questioned by the parties' legal representatives before the examiner. The party that has made the request will conduct the examination-in-chief and re-examination, and the opposing party may cross-examine.
Once the deposition has been taken, the examiner will then send it to the Senior Master, who will send it on to the Secretary of State (or to the foreign court from which the request was received).
Letters of Request must be drafted carefully
The High Court of England and Wales will not automatically enforce incoming letters of request. There is a level of scrutiny applied ensure that procedural and evidential limits are respected.
For that reason, it is best practice to have a UK lawyer review the letter of request before it is submitted to the English Courts. We can review it for you to check if it is likely to be approved, or recommend a narrower scope if appropriate.
Parties must be mindful that timing is often critical. A letter of request can add several months to the timetable for a case, particularly where evidence must pass through multiple authorities or where the receiving court has no prescribed timeframe for dealing with requests. Even under the Hague Evidence Convention, requests are simply required to be executed "expeditiously".
