Cross border evidence—privilege and confidentiality

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Cross border evidence—privilege and confidentiality
  • Privilege—general considerations
  • Privilege—compulsion not available under the laws of England and Wales
  • Privilege—compulsion not available under the laws applicable in the foreign court
  • Privilege—compulsion would be prejudicial to national security
  • Privilege—self incrimination
  • Confidentiality considerations
  • Confidentiality—Illustrative cases

Cross border evidence—privilege and confidentiality

This Practice Note considers issues of witness privilege and confidentiality applicable when dealing with applications by a foreign court requesting assistance from the courts of England and Wales to obtain evidence for use in the foreign court proceedings. The provisions for privilege are set out in the Evidence (Proceedings in Other Jurisdictions) Act 1975 (E(POJ)A 1975).

This Practice Note should be read in conjunction with Practice Note: Cross border evidence—foreign court request for assistance.

Privilege—general considerations

The term ‘evidence’, as used in the act, has a broad meaning. This is set out in E(POJ)A 1975, s 3(4):

‘...references to giving evidence include references to answering any question and to producing any document.’

A number of categories of witness privilege in relation evidence were created by the E(POJ)A 1975. This means that a person cannot be compelled to give evidence, by virtue of an order made under the act, in a number of situations. The courts of England and Wales, on receiving a request for assistance in obtaining evidence from a foreign court, will therefore need to consider whether any of these categories of witness privilege apply.

There are three different bases on which a person cannot be compelled by the courts of England and Wales to give evidence. These are where the ability to compel a witness:

  1. is not available under the laws of England and

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