Obtaining Evidence in England for Use in Foreign Proceedings: What International Litigants Need to Know

Modern commercial disputes rarely confine themselves to a single jurisdiction. A dispute may be fought in Switzerland whilst key witnesses are based in London. An investor may bring proceedings in Dubai only to discover that the documents required to prove their claim are held by an English company. A fraud investigation in Singapore may depend upon evidence from former directors now living in England.

As businesses increasingly operate across borders, courts around the world are regularly faced with the same problem, which is how can evidence located abroad be obtained lawfully and efficiently?

English law has long recognised the importance of international judicial cooperation. Through a combination of legislation, procedural rules, and international conventions, the English courts can assist foreign courts by facilitating access to witnesses and documents located in England and Wales. 

For parties involved in cross-border litigation, understanding this process can make the difference between proving a claim and being unable to establish critical facts.

A common scenario: The missing evidence problem

Imagine a shareholder dispute being litigated in New York.

The claimant alleges that company funds were misappropriated by former management. During disclosure, it becomes apparent that one of the key decision-makers relocated to London several years ago and possesses documents that may demonstrate how the disputed transactions were approved.

The New York court has jurisdiction over the dispute. The evidence, however, is located in England.

Without assistance from the English courts, the foreign proceedings may be deprived of important evidence.

Similar issues arise in:

• International fraud claims.
• Cross-border insolvencies.
• Asset recovery actions.
• Banking disputes.
• Joint venture disputes.
• Professional negligence claims.
• Shareholder litigation.

In each case, evidence may be spread across multiple jurisdictions, making judicial cooperation essential.

Why England matters in international disputes

England remains one of the world’s leading commercial centres. International businesses, financial institutions, professional advisers, directors, and investors often have a significant presence in England.

As a result, evidence relevant to overseas litigation is frequently located in England and Wales.

Examples include:

• Former executives residing in England.
• English subsidiaries of foreign corporations.
• Banking and accounting records.
• Professional advisers such as solicitors, accountants, and consultants.
• Corporate records held by English companies.

The concentration of commercial activity in England means foreign litigants regularly seek access to witnesses and documents located here.

How the English courts can assist foreign litigation

The primary mechanism is the Evidence (Proceedings in Other Jurisdictions) Act 1975, which enables the High Court to assist foreign courts in obtaining evidence located within England and Wales. 

Procedurally, applications are generally governed by CPR Part 34 and Practice Direction 34A, which provide the framework through which witness examinations, document production, and related orders can be obtained. 

The purpose of this framework is straightforward.

The English courts are not deciding the foreign dispute itself. Rather, they act in support of the foreign proceedings by helping to obtain evidence that would otherwise be outside the reach of the overseas court.

The Hague evidence convention

Many requests for evidence between jurisdictions are facilitated by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970. The Convention provides a framework through which courts in participating states can request assistance from one another when evidence is located overseas.

Where the Convention applies, requests are typically transmitted through official channels before being considered by the requested court. However, the Convention does not itself expand the powers of the English courts. Any request must still comply with English law, including the requirements of the Evidence (Proceedings in Other Jurisdictions) Act 1975 and CPR Part 34.

For businesses and lawyers involved in cross-border disputes, understanding whether the Hague Evidence Convention applies can be an important early consideration when planning an evidence-gathering strategy.

The English court is not a rubber stamp

One misconception frequently encountered in international litigation is that an English court will automatically enforce whatever request is made by a foreign tribunal.

That is not the case.

Although the English courts are generally supportive of international judicial cooperation, they retain an important supervisory role. Any request must comply with English legal principles and procedural safeguards. 

The court will typically consider questions such as:

• Is the evidence genuinely required?
• Is the request specific enough?
• Is the request proportionate?
• Does the request interfere with privilege or confidentiality rights?
• Does the request amount to a fishing expedition? 

The English court therefore acts as a gatekeeper, balancing international cooperation against the protection of those affected by the request.

Why some applications succeed and others fail

In practice, successful applications usually share three characteristics.

1. Specificity

The court wants to know precisely what evidence is required and why.

Applications that identify named witnesses, specific issues and defined document categories are far more likely to succeed than broad requests seeking large quantities of information. 

2. Relevance

A clear connection must exist between the evidence being sought and the issues arising in the foreign proceedings. 

3. Proportionality

English courts are increasingly concerned with proportionality.

Even potentially relevant evidence may not be ordered if the burden of obtaining it significantly outweighs its likely value to the foreign proceedings. 

Why English courts dislike fishing expeditions

One of the biggest differences between England and certain foreign jurisdictions concerns the scope of evidence gathering.

Parties familiar with broad US-style discovery often assume that extensive disclosure requests will be available through the English courts.

That assumption frequently leads to difficulties.

English law generally favours targeted and proportionate evidence gathering. Requests for all documents relating to a broad subject matter may be viewed as excessively wide and may be refused or substantially restricted. 

In practical terms, applicants should focus on obtaining evidence they can justify rather than evidence they merely hope may exist.

International fraud cases: Why evidence in England often becomes critical

Cross-border fraud litigation frequently illustrates the importance of the English courts’ evidence-gathering powers.

Modern fraud schemes rarely operate within a single jurisdiction. Funds may originate in one country, move through several banking systems, and ultimately be invested or hidden elsewhere. Whilst the proceedings themselves may be commenced abroad, crucial evidence often resides in England.

The reasons are straightforward. London remains a leading international financial centre and continues to attract investors, company directors, professional advisers, and high-net-worth individuals from around the world. Consequently, key witnesses, corporate records, banking information and professional advisers are often based in England even when the underlying dispute arose elsewhere.

In many international fraud matters, obtaining evidence from English-based witnesses can be critical to establishing:

• The movement of funds between entities;
• The identity of beneficial owners;
• The extent of a director’s involvement in disputed transactions;
• Whether misrepresentations were made during an investment process;
• The existence of concealed assets or related-party transactions.

Foreign litigants are therefore frequently required to combine proceedings in their home jurisdiction with evidence-gathering applications in England. The ability to secure that evidence can materially strengthen settlement negotiations, interim applications and ultimately the prospects of success at trial.

What type of evidence can be obtained?

Witness Evidence

The court can order witnesses in England to provide evidence for use in foreign proceedings. This may include testimony given before a judge, examiner or commissioner appointed for that purpose. 

Increasingly, examinations are conducted using remote technology, allowing lawyers and judges located abroad to participate efficiently. 

Documents

The court can also order the production of documents located within England and Wales.

However, the categories sought must be clearly identified. Requests should define:

• Relevant custodians.
• Subject matter.
• Time periods.
• Specific categories of documents. 

Electronic Evidence

Modern disputes frequently involve large volumes of electronically stored information.

Where necessary, applications may encompass email records, digital files and other electronic material, provided the requests remain proportionate and sufficiently precise. 

Practical Examples of Evidence Gathering in International Disputes

Case Study 1: International Investment Fraud

The Scenario

An investment vehicle based in Dubai sues a former investment manager in the Dubai International Financial Centre Courts alleging that investor funds were diverted to companies controlled by the manager.

During disclosure in the UAE proceedings, evidence emerges that several key communications originated from an accountant based in London. It is also suspected that copies of relevant financial models and transaction records remain in England.

The Problem

The Dubai court has jurisdiction over the dispute, but the accountant is outside its jurisdiction and cannot be compelled to provide evidence directly.

Without access to the accountant’s evidence, the claimant may struggle to establish the following:

• Knowledge of the alleged fraud;
• The true purpose of the transactions;
• Whether investor funds were intentionally misapplied.

The Solution

The Dubai court issues a letter of request seeking assistance from the English courts.

Following an application in England, the witness is examined, and relevant categories of documents are produced.

The evidence obtained enables the claimant to reconstruct the flow of funds and determine who authorised the disputed transfers.

Why This Matters

Cross-border fraud cases frequently depend upon a small number of witnesses possessing critical information. Obtaining evidence from those witnesses can transform the strength of a case and may significantly influence settlement discussions.

Case Study 2: Asset Tracing Following a Shareholder Dispute

The Scenario

A shareholder dispute is being litigated in Singapore.

One shareholder alleges that company assets were transferred to connected entities at undervalue before the business was sold.

Although the disputed transactions occurred in Asia, one of the former directors subsequently relocated to London and now resides in England.

The Problem

The claimant requires evidence regarding:

• The rationale for the transfers;
• The director’s involvement in approving them;
• Communications between advisers and management;
• The destination of sale proceeds.

The Solution

The Singapore court requests judicial assistance through the appropriate channels.

The English court subsequently facilitates the taking of witness evidence from the former director.

The resulting testimony provides evidence regarding the decision-making process behind the disputed transactions.

Why This Matters

Shareholder disputes often involve allegations of breach of fiduciary duty, unfair prejudice, diversion of corporate opportunities and conflicts of interest.

Where decision-makers have moved internationally, evidence obtained through English procedures can become one of the most important sources of evidence available to the parties.

Case Study 3: Cross-Border Insolvency Investigation

The Scenario

An insolvency officeholder appointed by a Swiss court investigates the collapse of an international trading business.

Preliminary investigations suggest that substantial sums were transferred shortly before insolvency to entities connected with former management.

A number of relevant advisers and former employees are based in England.

The Problem

The officeholder suspects that documents held in England may explain:

• Why the transfers occurred;
• Whether the transactions were commercially justified;
• Whether any assets remain recoverable.

The Solution

Evidence is sought through the statutory framework available in England.

Document production and witness examinations provide further information regarding the pre-insolvency transactions.

The evidence assists the officeholder in determining whether claims should be pursued against directors or third parties.

Why This Matters

Cross-border insolvency practitioners frequently face significant information gaps. The ability to obtain evidence from multiple jurisdictions can be critical when recovering assets for creditors.

The Protections Available Under English Law

The willingness of the English courts to provide assistance is accompanied by significant safeguards.

Privilege

The courts will generally respect legal professional privilege and will not compel disclosure of privileged material. This remains one of the most important protections available to witnesses and parties affected by a request. 

Confidentiality

Commercial sensitivity alone will not necessarily prevent disclosure. However, courts may impose safeguards such as confidentiality rings, redactions and restrictions on the use of documents. 

Self-Incrimination

Witnesses may object to questions exposing them to a genuine risk of criminal liability. English courts take such concerns seriously and will scrutinise the circumstances carefully. 

Public Interest Considerations

Certain categories of sensitive information may attract public interest immunity or other forms of protection. 

Practical Challenges Beyond the Court Order

Obtaining the order is often only part of the process.

International litigants frequently encounter operational challenges including:

Data Protection

Cross-border transfers of personal data must be considered carefully, particularly where evidence is being transferred to jurisdictions with different regulatory frameworks. 

Translation

Documents and transcripts may require translation before they can be used in foreign proceedings. 

Witness Availability

Busy executives, former employees and third-party witnesses may have limited availability, making scheduling an important consideration. 

Cost

Examiners, court reporters, interpreters and legal advisers all contribute to the overall cost of obtaining evidence. These costs should be considered at an early stage. 

Common Mistakes Made When Seeking Evidence in England

One of the most valuable lessons from international litigation is that the strongest application is not always the broadest application.

Applicants sometimes assume that requesting extensive categories of material increases the likelihood of obtaining useful evidence. In practice, the opposite is often true.

The most common mistakes include:

Overly Broad Requests

Requests for all documents relating to a particular business relationship are often difficult to justify and may attract objections.

The English courts generally favour precision over breadth.

Importing Foreign Discovery Concepts

Parties from jurisdictions with extensive discovery obligations may assume that similar principles apply in England.

However, the English courts remain focused on proportionality and relevance rather than expansive disclosure exercises.

Leaving Applications Too Late

International litigants may focus entirely on the primary proceedings and only begin considering foreign evidence shortly before trial.

This can create logistical difficulties.

Ignoring Privilege Issues

Failure to analyse privilege at an early stage often leads to disputes that delay evidence gathering and increase costs.

Failing to Explain Relevance

Evidence requests should always explain precisely why the material sought matters to the issues before the foreign court.

Judges are far more likely to grant targeted requests where relevance is clearly demonstrated.

Why evidence gathering should form part of a wider recovery strategy

Businesses often view evidence gathering as a standalone procedural exercise. In reality, it is usually one element of a broader litigation strategy.

For example:

• Fraud victims frequently combine evidence-gathering applications with asset-tracing investigations.
• Insolvency practitioners often use obtained evidence to assess claims against directors or third parties.
• Shareholders may use evidence obtained from foreign jurisdictions to support unfair prejudice or breach of duty claims.
• Claimants pursuing enforcement action may rely upon evidence gathered internationally to identify assets capable of enforcement.

Viewed in this context, obtaining evidence is not simply about collecting documents. It is about gathering the information necessary to maximise recovery prospects and achieve a successful outcome in the underlying proceedings.

Strategic Tips for International Litigants

Parties seeking evidence from England should:

• Engage English lawyers at an early stage.
• Draft narrowly focused requests.
• Consider privilege issues from the outset.
• Address confidentiality concerns proactively.
• Avoid unnecessary breadth.
• Anticipate practical difficulties concerning data, translations and witness attendance. 

A carefully planned application is often resolved more quickly and with less resistance than a request requiring extensive amendment after proceedings have commenced.

Frequently Asked Questions

Can a foreign court compel a witness in England to give evidence?

Yes. Through the statutory framework available in England and Wales, witnesses may be examined for the purpose of foreign proceedings. 

Can documents located in England be obtained for overseas litigation?

Potentially yes, provided the request is sufficiently specific, relevant and proportionate. [

Does the Hague Evidence Convention always apply?

No. Assistance may be available under the domestic statutory regime even where the Convention is not applicable. 

Can evidence be taken remotely?

Yes. The courts frequently facilitate video-link examinations where appropriate. 

What happens if a witness refuses to comply?

Failure to comply with an appropriate order may expose the witness to enforcement action, including contempt proceedings. 

Conclusion

Cross-border disputes depend increasingly on effective international cooperation. Where important witnesses or documents are located in England, the English courts possess significant powers to assist foreign tribunals in obtaining the evidence required for the just determination of proceedings. 

Success, however, depends upon careful planning. Requests must be targeted, proportionate and supported by a clear explanation of why the evidence is required. Parties who approach the process strategically are far more likely to obtain meaningful assistance whilst avoiding costly disputes regarding scope, privilege and confidentiality. 

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The above information is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a legal advisor.