The Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, more commonly known as the Hague Evidence Convention, aims to provide an effective means of reconciling differences between civil law and common law systems with respect to the taking of evidence, so as to improve judicial cooperation between member countries in civil and commercial matters.
The convention streamlines procedures for the taking of evidence. It allows the court of a contracting state (where a civil action is pending) to send a letter of request to a competent authority of another contracting state (within whose jurisdiction the evidence sought lies), to request the authority to obtain evidence that it needs.
By allowing this direct contact between the court in a contracting state and a competent authority in another state the convention effectively eliminates the need for obtaining evidence through cumbersome diplomatic channels.
India became a party to the convention in 2007. As of 4 February, the convention is in force between India and 23 of the other 56 member states.
Mechanisms to ensure enforcement in India
The designated central authority for receiving letters of request under the convention is the Ministry of Law and Justice. The designated competent authorities for the execution of the letters of request are the high courts in all 28 states and seven union territories of India.
The Code of Civil Procedure, 1908, (CPC) provides a procedure for dealing with letters of request issued by foreign courts. Section 78 of the CPC lays down that the provisions of the CPC for the execution and return of commissions for the examination of witnesses apply to commissions issued by foreign courts. Order 26 rules 19 to 22 of the CPC provide the manner in which such letters of request are to be dealt with.
As these provisions of the CPC provide Indian courts with the enabling power to give effect to letters of request issued by foreign courts, Indian courts have held that they can execute letters of request issued under the Hague Evidence Convention even though parliament has not passed specific legislation to give effect to it.
Scope of letters of request
Indian courts have laid down the following principles in relation to letters of requests issued by foreign courts:
(1) While dealing with letters of request, the court should allow both oral depositions of witnesses and documentary evidence, as the term “evidence” in order 26 rule 19 of the CPC is sufficiently wide to include oral as well as documentary evidence.
(2) An Indian court cannot go into the propriety of a letter of request or the questions of relevance or admissibility of the evidence. Relevance and admissibility must be considered by the court issuing the letter of request and the fact that a letter has been issued implies that questions of relevance and admissibility have been considered. The court executing the letter of request cannot sit in appeal over the orders of a foreign court on this aspect of relevance. A letter of request has to be accepted and executed owing to reciprocity between two sovereign countries.
(3) The court can enforce a letter of request requiring evidence from a witness who is not a party in the court proceedings in respect of which a letter has been issued.
(4) When a letter of request has been issued to obtain documents from a witness, the only person who can claim privilege in respect of those documents is the witness who is required to produce the documents.
Compelling a witness to comply
In a recent case an Indian court that was executing a letter of request passed an order compelling a witness to produce the documents requested in a letter of request. The witness refused to provide the required documents on the ground that the documents were confidential.
The court’s order directed the witness to produce the documents, with a rider that if the witness failed to do so, appropriate action would be taken against the witness and also the company in which the witness was employed.
This order makes proceedings under the convention highly effective for the collection of evidence in India.
Dhruv Anand is a partner of Anand and Anand, where Achuthan Sreekumar and Udita Patro are senior associates. Dhruv Anand can be contacted at email@example.com or by telephone on +91 120 4059300.