American Citizen Services Workshop The Hague Convention on Leading Evidence

by Poorvi Chothani, Esq. LawQuest

www.lawquestinternational.com

September 20, 2012

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Two Options for Taking Evidence in India For a Dispute Before a Foreign Court
1. Using the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 2. Under the Indian Civil Procedure Code, 1908 (CPC)

India has not enacted a special law to give effect to the Hague Convention The convention does not take away powers of the courts under the CPC. 2009 response to questionnaire the Hague Convention can implemented through S 78, O 26 and Rules 19-22 of the CPC
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The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention)
The Hague Convention was concluded on 18 March 1970, and came into force on 7 October 1972. India ratified the Hague Convention on 7 February 2007. The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention) establishes methods of co-operation for the taking of evidence abroad in civil or commercial matters.

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The Hague Convention

Objective of the Hague Convention Central Authority under the Hague Convention Reservation/Declaration made by India to the Hague Letter of Request Pre-trial discovery of documents What is Evidence? Procedure for taking evidence in India Approach of Indian Courts
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Objective of the Hague Convention

The primary objective of the Hague Commission was to facilitate the transmission and execution of the Letter of Request. It further aims at improving mutual judicial co-operation in civil and commercial matters. The Hague Convention allows for discovery of documents and testimony by means of a of a Letter of Request. The contracting States to the Hague Convention are required to establish a Central Authority responsible for accepting and processing Letters of Request from other contracting States.
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Documenting Evidence
The Hague Convention applies only between state parties and provides for the taking of evidence:

by means of letters of request

by diplomatic or commissioners. consular agents and

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What is Letter of Request?

Letter of Request: Is a formal communication in writing; Which may be sent by a foreign court in which action is pending to a court or judge in India; It is a request that the testimony of a witness residing within the jurisdiction of the Indian court may be formally taken by that court.
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Letter of Request
Article 1 of the Hague Convention authorizes a judicial authority of one state party to request the central authority of another state party, by means of a letter of request for the following purposes

to obtain evidence;
to perform some other judicial act.

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Letter of Request
Article 2 requires each state party to nominate a Central Authority in accordance with its own law. India has designated the Indian Ministry of Law and Justice, and the high courts in all states and union territory as central authorities to receive letters of request from judicial authorities of contracting states. In practice these requests are handled by the courts.

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Letter of Request
Article 3 sets out the material particulars that need to be specified in the letter of request.
Letter of Request shall specify
a) The authority requesting its execution and the authority requested to execute it, if known to the requesting authority (U.S. Courts); b) The names and addresses of the parties to the proceedings and their representatives, if any; c) The nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; d) The evidence to be obtained or other judicial act to be performed.

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Article 3 Components - Letter of Request

Where appropriate, the Letter shall specify, inter alia The names and addresses of the persons to be examined; The questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;

The documents or other property, real or personal, to be inspected;

Any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;

A Letter may also mention any information necessary for the application of Article 11regarding privilege or duty to refuse;
No legalization or other like formality may be required.
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Article 2 Designation of Authority

India is required to designate a Central Authority to receive Letters of Request
a) The Ministry of Law and Justice and the High Courts in all States and Union Territories in India b) The district court in whose territory the evidence is to be taken. c) The Central Authority and the relevant court.

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Article 8 and 9
Article 8 of the Hague Convention provides an option to allow the participation of members of the judicial personnel of the requesting state, the parties and/or their representatives in executing the letter of request. Under Article 9 The requesting authority may also request the use of a special method or procedure for execution of the letter of request, provided that it is not incompatible with the law of the state addressed or impossible to perform.

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Competent Authority Under Article 8

India may declare that members of the judicial personnel of the requesting authority may be present at the execution of a LoR. Prior permission of the competent authority is required. Indias Competent Authority: The Central Authority and the concerned court
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Article 15
Diplomatic officers or Consular agents of member states may take evidence from his fellow nationals in another member state: India has not provided for this as it is optional

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Article

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India may authorize diplomatic officers or consular agents to take evidence. Decision to be made by competent authority. India has designated:
a) The Ministry of Law and Justice and the High Courts in all States and Union Territories in India b) The district court in whose territory the evidence is to be taken. c) The Central Authority and the relevant court. as the Competent authority.
India has not waived the need for permission under this article though it has the power to do so.
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Article 17- Appointment of Commissioner

General or specific permission granting powers to take evidence as a commissioner. India requires applications for such permissions to be make in each case and has not waived this requirement though the Hague Convention allows for it. India has designated the following to be the competent authority: a) The Ministry of Law and Justice and the High Courts in all States and Union Territories in India b) The district court in whose territory the evidence is to be taken. c) The Central Authority and the relevant court.
India has not waived the need for permission under this article though it has the power to do so.
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Article 18 Use of Compulsion

Competent Authority under Article 18 which allows a consular agent or diplomatic officer authorized to take evidence under Articles 15,* 16, or a duly appointed commissioner under Article 17 to obtain evidence by compulsion after obtaining prior permission. If granted the authority shall apply any measures of lawful and appropriate compulsion. The District Court within the territory of which the evidence has to be taken.
*India has not appointed a competent authority under Article 15.
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Article 21 Diplomats or Consular Agents as Commissioners

May take evidence that is compatible with the law and not contrary to the permission granted Request for person to appear to be in local language or with a translation Evidence under compulsion allowed as India has appointed authority under A 18 Evidence as per manner of the foreign court unless it is forbidden in India Person may invoke inability under A 11
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Indias Reservations and Declarations under The Hague Convention

All requests under the Convention shall be in language, or accompanied with an English translation. the English

Subject to prior authorization of the Central Authority and the concerned court, members of the judicial personnel of the requesting Contracting Party may be present at the execution of a letter of request. Evidence by diplomatic officers or consular agents of Indian nationals or nationals of a third State under Article 16 of the Convention can be taken with the prior permission of the Central Authority.

In accordance with Article 18, a diplomatic or consular officer or a commissioner authorized under Article 15, 16 and 17 may apply for appropriate assistance to obtain the evidence by compulsion to the District Court within whose territory the evidence is to be taken.
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Pre-Trial Discovery of Documents

Article 23 of the Hague Convention specifically provides that a contracting State could make a declaration that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries. Contracting States which have executed a declaration under Article 23 are: Argentina, Australia, Bulgaria, China, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, India, Italy, Lithuania, Luxembourg, Mexico, Monaco, Netherlands, Norway, Poland, Portugal, Romania, South Africa, Seychelles, Singapore, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, Venezuela.

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Expression "Evidence" Includes Production of Documents

The expression "Evidence" is confined to one or other mode of evidence and it extends to both oral testimony as well as production of documents through the named witnesses.

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Letters of Request Under the Indian Law

Certain conditions are required to be satisfied for execution of letters of request:

1. A foreign court should wish to obtain evidence of a witness in any proceeding of civil nature before it; and 2. The witness should be residing within the appellate jurisdiction of the High Court before which the request is placed.

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Letters of Request Under the Civil Procedure Code

S 75 of the Code of Civil Procedure (CPC) provides that an Indian court may issue a commission, among other things to: (a) Examine any person

S78 of the CPC provides for leading evidence (examination of witnesses) under a commission in certain cases including when a request is made by (c) courts of any State or country outside India.
Order 26, Rule 19 to 22 of the CPC

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Indian Civil Procedure Code

Section 78: Commissions issued by foreign courts.

Subject to such conditions and limitations as may be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance ofa) Courts situate in any part of India to which the provisions of this Code do not extend; or a) Courts established or continued by the authority of the Central Government outside India; or b) Courts of any State or country outside India.

Section 78 of the CPC must be read with Order 26 Rules 19 to 22. The object of Section 78(c) of CPC is to facilitate collection of evidence pursuant to a request received from a foreign court.
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O 26 Rule 16 - Powers of Commissioners

To examine the parties themselves and any witness whom they produce To examine other persons whom Commissioner thinks appropriate To call for and examine documents and other things relevant to the subject of inquiry To, at any reasonable time, enter upon or into any land or building mentioned in the order of the court
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O 26 Rule 19 of the Civil Procedure Code

a) b) c)

A foreign court situated in a foreign country wishing to obtain the evidence from a witness provided That the proceeding is of a civil nature That the witness is residing within the limits of the High Court's appellate jurisdiction, it may, subject to the provisions of Rule 20, issue a commission for the examination of such witness.

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O 26 Rule 19 (1) Issuance of Commission

If the High Court is satisfied:
(a) That a foreign court wishes to obtain evidence of a witness in any proceeding before it (b) That the proceeding is of a civil nature (c) That the witness is residing within its appellate jurisdiction

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O 26 Rule 19 (2) - Manner of Evidence

(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or by a letter of request issued by the foreign court and transmitted to the High Court through the Central Government, or by a letter of request issued by the foreign court and produced before the High Court by a party to the proceedings.

(b)

(c)

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O 26 Rule 20 Application for Issue of Commission

The High Court may issue a commission :
a) Upon application by a party to the proceedings before the foreign court, or Upon an application by a law officer of the State Government acting under instructions from the State Government.

b)

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O 26 Rule 21 To Whom Can Commission be Issued?

To any court within the local limits of whose jurisdiction the witness resides To any person whom the court thinks fit to execute the commission where the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court
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O 26 Rule 22 - Issuance, Execution and Return of Commission

When any commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.

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Summary of The Procedure for Taking Evidence in India

Issuance of a Letter of Request by a foreign court Submitting request before the concerned Court in India Indian court to appoint a commissioner and issue a direction to him as it may deem fit and appropriate. Commissioner fixes a date for recording of evidence. The evidence is recorded in the manner desired by the foreign court as long as it is feasible and not contrary to Indian laws. India does not use Court Reporters Recorded evidence to be filed in the Court by the Commissioner Court either forwards it to the central government which would transmit it to the foreign court issuing the request Or may allow the entire record of the Commissioners report be transmitted by the applicant directly to the foreign court. Expenses borne by party seeking to take evidence
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Other Relevant Rules

Rule 6: Court to examine witness pursuant to Commission. Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant to the order. Rule 15: Expenses of commission to be paid into Court Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued. Rule 16A Questions objected to before the Commissioner Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting.
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Other Relevant rules

Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege.

Rule 17: Attendance and examination of witnesses before Commissioner The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of 1[India], and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court.
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Penalties for Failure to Appear as a Witness Before a Commissioner

Section 32 of the Code of Civil Procedure provides for the following:
a) b) c) d) Issue warrant for his arrest Attach and sell his property Impose a fine upon him not exceeding Rs. 5,000/Order him to furnish security for his appearance and in default commit him to civil prison.

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Limitations on Courts Powers

Cannot go into the appropriateness or relevance of a Letter of Request Cannot go into the relevance or admissibility of evidence

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Refusal to Execute Letters of Request

A letter of request can be refused only in specific cases: When the person to be questioned asserts a privilege or duty to refuse to give evidence.

When the execution of the Letter of Request does not fall within the jurisdiction of the state addressed. When the state addressed considers that its sovereignty or security would be prejudiced.
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Thank You

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