The Foreign, Commonwealth and Development Office (the "FCDO") has recently established the Taking of Evidence Unit (the "ToE Unit") which is responsible for determining the position different overseas governments are taking in relation to individuals giving oral evidence from within their territory.
Further, Presidential Guidance on the process for calling overseas witnesses has also recently been updated. Joe Taylor and Jenna Evans examine these developments in more detail.
Prior to calling any witness based overseas to a (UK) Employment Tribunal to give evidence, it must be ascertained if such territory objects to oral evidence being given to a UK Tribunal from within that territory. This is in the interest of diplomatic relations – one state should not attempt to exercise its court (or Tribunal) powers in another state, without that second state's prior approval.
The ToE Unit has been established to ascertain what objections, if any, different jurisdictions have to witnesses giving evidence to Tribunals based overseas. The ToE Unit has already contacted several overseas states and the FCDO intends to publish a full list of the responses in due course and, when it does, Presidential Guidance will be updated accordingly. It is worth noting that not all countries allow individuals to give oral evidence from that country in foreign proceedings and, if they do, there may be a specific procedure that must be followed to enable them to do so. The ToE Unit will refer back to responses already received for states it has already approached but, where no such information is available and it has to be sought for the first time, it will likely take several weeks, if not months, to obtain such information.
For the time being, parties seeking to call witnesses based outside of the UK should use the following process:
- Contact the Tribunal as soon as possible to notify them that the party wishes to rely on evidence from a person located abroad. This is a purely administrative step to establish if permission is required. In making such notification, you must also set out:
- The case number;
- The Hearing date(s) (if any);
- State where the individual will be when they give evidence; and
- Confirmation that a party wants to rely on an overseas based person's evidence.
Neither the name of the individual, their exact location nor a summary of the oral evidence required, need to be provided.
- The Tribunal will then contact the ToE Unit.
- The ToE Unit will often be aware of the stance that a particular state is taking based on its previous enquiries. If the stance is that there is no objection, the ToE Unit will notify the Tribunal. If permission is subject to certain conditions, the ToE Unit will confirm what conditions need to be met. If the ToE Unit has not received a response yet, or the position is unclear, the ToE Unit's position is that permission has yet to be given. If a request hasn't been made in that particular state yet, as outlined above, the ToE Unit will make an enquiry and the Tribunal will pay any associated fee for such enquiry. It can take months for a response to be received and there is a chance that no such response will be forthcoming at all.
- The Tribunal will then notify the party that made the request of the outcome.
Other points to note
If permission is delayed or refused it is the responsibility of the party seeking to rely on evidence from a person located abroad to alert the Tribunal if they are concerned about the amount of time the enquiry is taking or if no response has been obtained. It will then be a matter for the Tribunal to decide if a listed Hearing should be delayed to try to obtain such permission. In making this decision, the Tribunal may consider alternatives to hearing the oral evidence (from abroad), such as asking why the individual can't attend the Hearing from within the UK.
What is key to note is that the above process only applies to the giving of oral evidence – permission from other states is not required where an individual is submitting written evidence only, though the weight that will attach to such statements, without the possibility of cross-examination, will be a matter for the Tribunal to decide.
Timing, and evidence, amongst many other factors, are always key parts of litigation. With the above changes to calling overseas witnesses, considering who to call (and where they are based) and how to notify the Tribunal of this (if such witness is based overseas), is now more important than ever.