Obtaining and deploying evidence from abroad: the times they are a changing?

For those practising in travel and cross-border personal injury litigation, a key question, of both practical and strategic importance, is whether it is possible (and indeed advisable) to obtain evidence from a witness who is ordinarily resident abroad. Assuming that threshold is met, the next difficulty is how to adduce such evidence. One obviously proportionate approach would be to call that witness remotely, by video link or the like. Unfortunately, and notwithstanding the widespread use and availability of such facilities, that process has become fraught with difficulty in the litigation context.  

The procedural rules

Although the Court has the power to allow a witness to give evidence through a video link or by other means (CPR r.32.3), Practice Direction 32, Annex 3, paragraph 4, cautions litigators against presuming that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined by English courts using video conferencing facilities (“VCF”). It stipulates that “if there is any doubt about this”, enquiries should be directed to TOE.enquiries@fcdo.gov.uk “with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level”. Further, the party responsible for arranging VCF  is “required to make all necessary enquiries” and “must be able to inform the court what those enquiries were and of their outcome”. The Practice Note to Part 32 advises that the party calling a foreign witness must ensure that such permission, if required, is obtained in good time for trial (which is either by the time of any pre-trial review, or the date for filing any pre-trial checklist).

Experience to-date

Unless the proposed witness wishes to give evidence from a jurisdiction that is a signatory to the Hague Convention on Taking of Evidence (and which permits such evidence), the party must email the FCDO and, if necessary, send a letter of request via the foreign process section at the RCJ. This process is slow and regularly takes months to complete (and, in some cases, no response is received from the foreign jurisdiction at all). This difficulty is compounded by the fact that a confirmed trial date is invariably required before any letter of request can be finalised (further reducing the time available to complete the relevant steps).  In practical terms, the result is often that it is practically impossible for a party to obtain the necessary permission before the start of trial. This is not through want of trying; simply put, diplomatic channels are inevitably slow-moving and the system can be cumbersome. As a consequence, parties may find themselves having to prepare for trial without relevant and supportive evidence or, if they seek to do so, may be forced to rely upon such evidence in written form only, with the very real risk that it will be afforded limited to no weight at trial.

Lawrence & Ors v. Associated Newspapers Limited: foreign evidence permitted

A judgment in the latest instalment of the phone-hacking litigation may, however, offer some hope in what has become a frustrating process, which may itself be said to undermine the interests of justice. 

In Baroness Lawrence & Ors v. Associated Newspapers Limited [2026] EWHC 451 (KB), the Claimants alleged that Gavin Burrows carried out unlawful information-gathering activities. At trial, they wanted to rely upon earlier statements of Mr Burrows (adduced by way of hearsay notice) and to put those statements and other hearsay evidence to the Defendant’s witnesses in cross-examination. Shortly before trial, Mr Burrows provided the Defendant with a statement denying that he had been commissioned to carry out unlawful information-gathering activities, and denying he had ever signed the statements upon which the Claimants wished to rely. Mr Burrows had solicitors acting for him (though he was a non-party) and lived overseas (such that any witness summons was ineffective); he said he was willing to assist by giving evidence by VCF, but was medically unfit to travel and unwilling to disclose his location due to threats and the risk to his commercial activities abroad.

On a confidential basis (given the sensitivities), Nicklin J was informed of Mr Burrows’ location, and noted that it was not a party to the Hague Convention of Taking Evidence Abroad or any other bilateral treaty. Mr Burrows’ solicitor, Christopher Corney, served a witness statement which referred to independent legal advice from a qualified lawyer in the relevant jurisdiction confirming that there was no legal prohibition on Mr Burrows giving evidence via video-link, no requirement for local permission, and no diplomatic impediment to Mr Burrows giving evidence in that way. Also before the Court was a letter Mr Corney sent the FCDO requesting a time-estimate for any response from the foreign country if a formal letter of request were sent; to which the FCDO replied that any response at all was highly unlikely (a response that may resonate with practitioners’ experience across multiple jurisdictions). In those circumstances, Nicklin J concluded there was no realistic prospect of the process via the FCDO being completed before the end of the trial.

Notwithstanding these difficulties, Nicklin J gave permission for Mr Burrows to give evidence from abroad, noting, among other matters, the central importance of such evidence to the issues in the trial. In doing so, Nicklin J relied upon a decision of the Federal Court of Australia: Joyce v. Sunland Waterfront (BVI Ltd) [2011] FCAFC 95. Joyce draws a distinction between, on the one hand, the exercise of judicial or administrative acts on foreign territory (such as a judge or examiner travelling abroad to take evidence), which generally require host country consent; and, on the other hand, the voluntary act of a person, physically located abroad, giving evidence via VCF to a foreign court without seeking the assistance, facilities or authorities of the foreign state. In Joyce, it was decided the latter category of case does not constitute an exercise of judicial power over a foreign territory and does not, in itself, infringe the sovereignty of that foreign territory. In conclusion, Nicklin J balanced the considerations arising under CPR r. 1.1, 32.3 and Practice Direction 32, Annex 3, and was content to exercise his discretion to permit such evidence, subject to the stringent safeguards proposed during, and judicial oversight of, Mr Burrows’ evidence.

So, are the times a changing?

On the face of it, Lawrence is an extremely helpful decision for those seeking to adduce evidence from a witness based abroad. It both acknowledges and addresses squarely the current difficulty in obtaining a satisfactory response from foreign jurisdictions via the formal FCDO channels (particularly in the timescale required). Perhaps most strikingly, it can be read as an answer to the primary concern of Practice Direction 32 (to ensure that there is no objection at a diplomatic level to the taking of such evidence by the host country); in particular, by suggesting that when such evidence is given voluntarily, that act does not infringe the sovereignty of a foreign state (and, is therefore not a diplomatic issue at all). Importantly, Nicklin J’s judgment proceeds on the basis that the guidance in Practice Direction 32 (and the Practice Note) are but factors to be balanced against the broader matrix of relevant considerations, including the requirements of fairness and justice. 

Where does this leave travel and cross-border personal injury litigators? The judgment is plainly useful and potentially significant, but it is as yet unclear how enthusiastically it will be embraced. A few points are worth noting at this point, however:

• In Lawrence, Nicklin J was concerned with an unidentified jurisdiction, but had the benefit of positive evidence confirming that the particular host country (known only to the Court and Mr Burrows’ advisors), had no requirement for permission to be granted before video link evidence could be taken; and, that there was no diplomatic impediment to his doing so. As such, whilst (applying Joyce) Nicklin J interpreted the giving of such evidence voluntarily as an act that did not give rise to diplomatic concerns, it does not follow that a similar outcome would have been achieved had the host state had a known objection to such a process. As such, the judgment is most likely of less (and potentially no) assistance where the host state’s consent is an established pre-condition, or where evidence by VCF is known to be prohibited.

• For the majority of foreign jurisdictions, the position remains unknown or requires that a letter of request be sent. It should be noted that the judgment does not (on any view) negate the terms of Practice Direction 32, and parties should continue to abide by its requirements. Whilst the judgment fairly reflects that such a process can be lengthy and indeed enjoy no realistic prospect of success, parties cannot assume such matters and would be well advised to seek the relevant permissions as well as obtaining the type of expert evidence that was provided to Nicklin J in this case.

• As is noted above, in Lawrence, Nicklin J had the benefit of evidence addressing the practical (and even diplomatic) position in the host country. Given the unusual circumstances of that case,  the parties to the litigation did not have an opportunity to consider, let alone challenge, that evidence. Unless similarly unusual circumstances arise, that will not generally be the case. Indeed, the scope and cogency of any such evidence (which should, insofar as it is possible, seek to mirror those matters recorded as having been addressed in Lawrence) will likely become the next battleground. Whilst such evidence may be expensive to obtain (at least initially), if accepted, is likely to be useful in multiple cases in the same jurisdiction.

• If the party seeking to adduce remote evidence from abroad can deploy supportive evidence of the type provided in Lawrence, the other party will at least then have to make a tactical decision. If any application is resisted unreasonably, they will be at risk on costs (and potentially additionally risk giving the impression that they are overly concerned as to the strength of the evidence that is sought to be adduced). At the very least, even if such evidence is ultimately not sufficient to satisfy the Court, the efforts made may support an argument that the underlying statement of the foreign witness should be afforded more weight than it otherwise might have done.