Cross-border litigation often requires evidence to be obtained from witnesses or companies located outside the jurisdiction of the court hearing the dispute. One of the mechanisms for doing so is the Letter of Request, through which one court asks the judicial authorities of another country to assist in obtaining evidence.
The English courts are generally willing to provide judicial assistance to overseas proceedings, but there are limitations. The courts exercise their powers cautiously, balancing the interests of international judicial cooperation against the need to protect individuals and businesses from oppressive or inappropriate requests.
The starting point is that English courts will require good reasons to refuse to accede a Letter of Request. The concept of comity requires a high degree of deference to the views expressed by courts seeking UK judicial assistance.
That said, the English courts have discretion on whether or not to refuse the Letter of Request, and they take a restrictive approach to requests that appear to be ‘fishing expeditions’.
The legal framework
The process for enforcing a request for evidence from a foreign court is governed by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention), which is implemented into UK law by the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act).
For the High Court of England and Wales to grant an order, the request from the foreign court must comply with the strict requirements of the 1975 Act.
Too broad or unspecific
The most important limitation is found in Section 2(4)(b) of the 1975 Act. This states that a court order cannot require a person to produce "any documents other than particular documents specified in the order".
This rule exists because the UK, under Article 23 of the Hague Evidence Convention, has opted out of providing the wide-ranging "pre-trial discovery" that is common in the US.
English law, by contrast, requires much greater specificity in Letters of Requests. English courts will not permit a "fishing expedition" where a party asks for broad categories of documents to see what might be useful. The courts require specific, identifiable documents to be requested.
Re Asbestos Insurance Coverage Cases established that a request must be for "actual documents" which are "separately described" or described in a way that the "exact document in each case is clearly indicated". A request for "all the respondent's bank statements for 1984" was given as an example of an impermissible request for a general class of documents.
General words like a request for “any memoranda, correspondence or other documents relevant thereto” or “any memoranda, correspondence or other documents referred to therein” are too wide and will be struck out.
In Galas v Aleve Inc [2018] EWHC 2366 (QB), Morris J set aside part of an order giving effect to a Letter of Request from a US court on the basis that it identified categories of documents, which were impermissible, rather than specific documents.
Evidence must relate to material facts
The Letter of Request must seek evidence, rather than just information, and the evidence must relate to an issue in the proceedings. Requests under the 1975 Act cannot seek relevant information in general, but only information which will be evidence of material facts.
In Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547, the House of Lords distinguished between requesting known evidence and seeking discovery in the hope of locating evidence. The latter falls outside the statutory scheme.
Accordingly, a request should identify:
- the witnesses from whom evidence is sought;
- the documents or categories of documents required; and
- the issues to which that evidence relates.
The greater the precision of the request, the more likely the English court is to grant it.
Proportionality
One of the concepts that underpins the supervision of litigation in England and Wales is proportionality, as set out in the Civil Procedure Rules.
The burden imposed on the witness or company by the request in the letter must be proportionate to the likely value of the evidence.
Where compliance would involve substantial expense, significant business disruption or the review of vast quantities of documentation, the court may conclude that the request should be modified or refused.
Vexatious or oppressive
The English courts will not grant a request if it is considered to be vexatious or oppressive.
The question of whether a Letter of Request will be considered to be oppressive where allegations of fraud have been made against the proposed witness was considered in Autonomy Inc and another v Hussain [2016] EWHC 3268 (QB). The court held that an examination of the witness would be oppressive, as the claimant's allegations of fraud against him in proceedings in London had not been pleaded properly.
In Byju's Alpha Inc v OCI Ltd and others [2025] EWHC 271 (KB), the court set aside an order giving effect to a Letter of Request which required the respondents to provide documents and sworn testimony for fraud-related proceedings in Delaware. In so doing, the court held that the Letter of Request sought information, not evidence for trial, and that it was oppressive because it allowed the applicant to obtain testimony and documents from the respondents prior to formulating proceedings against them.
Conclusion
The English courts strongly support international judicial cooperation and recognise the importance of assisting foreign courts in the administration of justice. However, that support is balanced by well-established safeguards designed to protect witnesses and businesses from excessive or inappropriate requests.
The English courts give effect to Letters of Request as far as possible, but do not permit them to become vehicles for speculative discovery or oppressive evidence gathering. Instead, they insist upon identifiable, relevant and proportionate requests that respect procedural fairness.
