Taking Evidence in Ireland for Foreign Proceedings

Given the volume of multi-national companies with international or European headquarters in Ireland, often evidence from Irish-based individuals is required in order to resolve disputes in other jurisdictions. Our Dispute Resolution team outlines the available routes for obtaining evidence for use in foreign proceedings, both within and outside the EU.

The steady growth in multi-jurisdictional transactions and cross-border disputes is driving a corresponding rise in applications to obtain evidence in Ireland for use in foreign proceedings. Evidence can be taken voluntarily from a witness in one jurisdiction for use in litigation in another jurisdiction without the involvement of the Irish courts. However, where an Irish-based witness is not willing to give evidence voluntarily to a foreign court, an application to the Irish courts will be required. Different rules apply depending on whether the requesting court is within or is outside the EU.

The power of the Irish courts to take evidence for use in civil and commercial proceedings before the courts of other EU countries is governed by Regulation (EU) 2020/1783, known as the Evidence Regulation. This allows for evidence to be exchanged between EU Member States. The power to take evidence in Ireland for use in proceedings outside the EU, including the United States, is governed by the Foreign Tribunals Evidence Act 1856.

Obtaining evidence in Ireland for use in litigation in another EU country

Where a party to proceedings in one EU Member State seeks evidence from a witness in Ireland, the process is straightforward and efficient. A request must first be lodged with the Irish courts using the forms specified by the Evidence Regulation, which were transposed into domestic law by the European Union (Evidence in Civil or Commercial Matters) Regulations 2023[1]. These forms require that various pieces of information be provided by the requesting court in support of the request, including:

• The name and address of the parties to the proceedings
• The nature and subject matter of the case, and
• A description of the evidence to be taken

Requests for evidence should be executed by the Irish courts within 90 days of receipt.

Obtaining evidence in Ireland for use in litigation in a non-EU country, including the United States and UK

Ireland is not a signatory to the Hague Evidence Convention. Consequently, taking evidence in Ireland for the assistance of courts outside the EU is governed by the Foreign Tribunals Evidence Act 1856.

Under the 1856 Act, letters of request, known as “letters rogatory”, from the requesting foreign court must be sent to the Irish High Court. These letters request assistance by asking the Irish court to compel an Irish witness to appear for the purposes of providing evidence for use in the foreign proceedings. The letters should identify:

• The person to be examined
• The issues on which the witness will be examined, and
• Any documents which should be produced by the witness

The person to be examined does not need to be named individually. Instead, the letters can identify a company which should be subject of the Irish order and request that the company be required to name a representative to give evidence. These letters should also, where appropriate, specify that the requesting party’s lawyers may attend and examine the witness, along with Irish lawyers for the witness, when the evidence is being taken in Ireland.

Once the letters rogatory have been issued by the foreign court, the party seeking the evidence can instruct Irish lawyers to make an application to the Irish High Court for an order under the 1856 Act. This application is made by way of an originating notice of motion. The notice of motion is usually supported by affidavits from lawyers representing the applicant from both the jurisdiction in which the foreign proceedings are taking place and Ireland.

In determining whether or not an order should be granted, the court will apply the following test, as set out by the High Court in Cornec v Morrice[2]:

• Is the evidence proposed to be taken relevant to the foreign proceedings?
• Is the request oppressive?
• Will the grant of request override any privilege and protection available to a prospective witness?
• Will the evidence taken be admissible under the law of the requesting State?

Although the procedure is discretionary and the request can be declined in whole or in part, the Irish courts usually adopt a facilitative approach to these requests and the default starting position is that the High Court will endeavour to grant the order[3]. The principle of comity applies to applications made under the 1856 Act. The principle states courts should cooperate and provide assistance to a foreign court where appropriate, so long as doing so does not conflict with domestic laws or public policy.

Notwithstanding the principle of comity, there are circumstances where the application may be refused. Examples of circumstances where an order has been refused include, where:

• The order could have been oppressive to the proposed witness and used against them[4]
• Privilege would apply to protect the information sought[5] , or
• There is a defect in the letters rogatory provided to the court or no letters rogatory have been provided at all[6]

If an order is made by the Irish courts, an individual known as an Examiner will be appointed to supervise the manner in which the evidence is taken at the deposition. The Examiner’s role is to oversee the deposition’s compliance with Irish law. The Examiner does not intervene in matters of foreign law, such as the rules of evidence applicable in the foreign court. However, the Examinerwill note any issues arising on the record for determination by the foreign court.

Once the deposition has taken place, a transcript or audio-visual recording of the deposition will be prepared. Any documents produced during the deposition will also be collected. These materials will be transmitted to the foreign court that issued the letters rogatory, in a manner specified by the Irish High Court. This is usually done after the materials have been reviewed and verified by the appointed Examiner.

The party seeking to have the witness attend and give evidence is normally required to pay for any expenses that are incurred by the individual giving evidence. The Irish Supreme Court has endorsed this position[7].

Conclusion

Where evidence is required from an Irish-based witness before the courts of an EU Member State, the procedure under the Evidence Regulation will apply. That process should be quite straight-forward and quick.

Evidence which is required before the courts of a non-EU country will require an application under the 1856 Act. Applicants will need to ensure that the requirements under the 1856 Act are complied with. Once the requirements are met, these applications can be valuable in securing evidence from an Irish-based witness which may prove important in the determination of foreign proceedings.

For more information, please contact a member of our Dispute Resolution team.

People also ask

[1] SI No. 110/2023

[2] [2012] IEHC 376

[3] As per the judgment of Mr Justice Noonan in Cutler v Azur Pharma International III Ltd [2015] IEHC 355

[4] Novell v MCB Enterprises [2001] IESC 204

[5] (Cornec v Morrice [2012] IEHC 376

[6] U. Dori Construction Ltd v Greaney [2017] IEHC 444

[7] Ernst & Young Chartered Accountants v King [2003], unreported

The content of this article is provided for information purposes only and does not constitute legal or other advice.