What is a Letter of Rogatory?

In simple terms, a Letter of Rogatory is an essential tool for obtaining evidence for use in foreign proceedings. It forms part of the answer to the question, what do you do if you are in the USA or Asia and need documents or evidence from a witness in the United Kingdom?

Your first option is to politely ask them to co-operate voluntarily. Sometimes this works, but more often than not, the individual’s desire not to become involved in ‘someone else’s dispute’ overrules an otherwise charitable disposition.

If the witness will not cooperate voluntarily, the only remaining alternative is a petition to your Home Court for a Letter of Rogatory, which is a request for the English Court to use its powers to assist you in obtaining evidence.

To be accepted it must contain all mandatory information and be properly limited in the scope of the evidence sought. You must also satisfy the English Court that the evidence sought actually exists and the person you are seeking to examine has it.

Following the granting of an order for an examination, it is your responsibility to put in place the arrangements for the examination and serve all pertinent documents on the witness. Receipt of these documents is often the first a witness will know about the examination.

Due to this, the witness has an opportunity to apply to the English Court to have the order for examination set aside. Grounds for this include:

• The Letter of Rogatory not complying with the mandatory requirements;
• The evidence sought being too wide and/or oppressive; and
• There being grounds to refuse the order under privilege (a legal right not to provide evidence).

The English Court considers these arguments at a hearing and, if you do not defeat them, can set aside the Letter of Rogatory (in whole or in part) and make an award for costs against you.

A successful request

The examination itself is carried out in a manner similar to the giving of evidence at an English Trial, but can and often is, modified by a request. For instance in US Letters of Rogatory it is commonly requested that the deposition be videoed.

When providing evidence, the witness has all of the normal privileges and rights that apply in their Home Court, but they also have any additional rights that may be imparted under English procedural law.

Therefore, it is preferable to have an examiner well-versed in both laws to ensure the examination proceeds smoothly and the desired outcome is achieved. After the examination, the deposition is sealed and returned to your Home Court.

This procedure has precise rules and as with many aspects of the law, it is easy to make costly mistakes if you are not familiar with the process. Choosing the right lawyer to advise on the contents of the Letter of Rogatory could be the difference between success and failure.

There is far more to the process than just the contents of the letter itself, as it will serve little purpose without the process of obtaining an enforceable order in the English Court being managed effectively and efficiently.

You need a lawyer who is experienced in arranging and conducting the examination, as well as adaptable enough to following any requested modifications you require to the evidence taking process. You also need someone you can rely on to seal the deposition and return it to your Home Court.

Typically, such a lawyer will need to be dual qualified as an English Solicitor and US Attorney, providing them with a valuable understanding of both legal jurisdictions and processes.

A UK solicitor will be instructed by lawyers from your home jurisdiction and will be expert at tailoring the examination to their requirements. However, experienced lawyers will also accept direct instructions from organisations outside the UK and will manage the entire process.

If you have any questions regarding evidence gathering in the UK, or would like more details about our experience with obtaining a Letter of Rogatory, please get in touch with Cardium Law Director Chris MacQueen on Mobile: +44 75 5382 4127 or email chrismacqueen@cardiumlaw.com