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knowledge 5 February 2020 |

How to Compel Critical Evidence from Witnesses in another EU Member State

The Evidence Regulation facilitates the obtaining of evidence from a witness in another EU Member State on both a voluntary and non-voluntary basis.

Can a witness in another Member State be compelled to give evidence in Irish proceedings?

Yes. The Evidence Regulation1 provides a means by which a witness in another EU Member State2 can be compelled to give evidence in civil or commercial proceedings in Ireland. Likewise, a witness in Ireland can be compelled to give evidence in another Member State. The normal process for compelling witness evidence in Ireland is by way of subpoena. Generally3, however, a subpoena cannot be issued to a person outside the jurisdiction. If a witness wishes to avoid giving evidence pursuant to a subpoena, they can simply leave the jurisdiction. The Evidence Regulation overcomes this jurisdictional limitation of a subpoena in an EU context.

Making a request under the Evidence Regulation

A Member State court (the “requesting court”) can request (a) the competent court of another Member State (the “requested court”) to take evidence or (b) take evidence directly itself in another Member State by submitting a request to the central body in that State.4

If the witness is unwilling to give evidence on a voluntary basis, a request should be made to the court of the other Member State (where the witness is located) to take that evidence as, where necessary, that court must apply appropriate coercive measures in accordance with its national law. The direct taking of evidence by a requesting court may only take place if it can be performed on a voluntary basis without the need for coercive measures.

If the request is made to the court of another Member State, that court can refuse to execute the request when the witness claims the right to refuse to give evidence or to be prohibited from giving evidence under either the law of the Member State of the requested court or the requesting court. In order for a witness to resist giving evidence in reliance upon a provision of the law of the requesting court, the right sought to be relied upon must have identified by the requesting court in the request, or, at the instance of the requested court, has been confirmed by the requesting court. An example of where this would apply is where a witness claims privilege. Similarly, the direct taking of evidence may be refused where it is contrary to the fundamental principles of law in the requested Member State.

In respect of a request directed to Ireland, the competent court to take evidence in Ireland is the Circuit Court and the power is exercised by the County Registrar in the county in which the witness resides or carries on business. The central body is the Courts Service.5

Taking evidence under the Evidence Regulation

Where the evidence is to be taken by the requested court, it must do so without delay and, at the latest, within 90 days of receipt of the request. The parties, their representatives and representatives of the requesting court have the right to be present at and participate in the taking of evidence.

Where the evidence is to be taken directly by the requesting court, the requested Member State must inform the requesting court if the request is accepted within 30 days of receipt. The evidence is taken by a member of the judiciary or such other person designated in accordance with the law of the Member State of the requesting court. The use of videoconferences is encouraged by the Evidence Regulation in this regard. 

Brexit

The Evidence Regulation will continue to apply to the UK until the end of the transition period on 31 December 2020.

Separately, it appears that an Irish court could also make a request under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (a UK Act) which would be relevant post-Brexit.

Comment

The Evidence Regulation provides a useful mechanism for obtaining evidence in another Member State. For example, evidence can be obtained in the UK for use in Irish proceedings by the Irish court requesting the UK court to take evidence or the Irish court taking evidence itself directly in the UK. Unlike a subpoena, the Evidence Regulation provides a mechanism for compelling witness evidence abroad. Witness evidence however can only be compelled where it is the requested court, here the UK court, taking the evidence. Where the UK court takes that evidence, it is open to the Irish parties and Irish court to participate. Where the Irish court takes evidence directly, it is usually taken by a member of the judiciary.

Our Disputes team or your usual contact in McCann FitzGerald would be pleased to provide further information in relation to the issues raised in this briefing.

  1. Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.
  2. The Evidence Regulation does not apply to Denmark.
  3. Note in Curran v Byrne [2018] IEHC 722, Barr J granted permission for a subpoena to be issued requiring the defendant who lived in Monaco to attend court. In resisting the application, counsel for the defendant argued that no legal authorities were being offered to the court in relation to a person living outside the jurisdiction. Barr J said he was satisfied that, once a party invoked the jurisdiction of the court as a defendant, he had made himself amenable to the court notwithstanding that he lived abroad.
  4. Order 39 Rule 5(2) RSC sets out the procedure for making requests in Ireland to take evidence abroad pursuant to the Evidence Regulation.
  5. European Communities (Evidence in Civil or Commercial Matters) Regulations 2013 (S.I No. 126/2013). The procedure for the taking of evidence by county registrars is set out in Order 23A of the Circuit Court Rules.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.