A recent Commercial Court decision provides significant guidance on the procedural requirements for letters of request where a witness is out of the jurisdiction.
Published: 29 October 2026
Authors: Aimee Cook
The Commercial Court's decision in IPJSC United Company Rusal v Whiteleave Holdings Ltd & Ors1 provides significant guidance on the operation of CPR 34.13 and the 1970 Hague Evidence Convention (1970 HEC). Whilst the judgment does not change the substantive test for obtaining a letter of request, it serves as a reminder that letters of request are a mechanism by which, assuming the relevant procedural requirements are satisfied the English court may ask a court in another jurisdiction to obtain evidence using the foreign court's own procedures, rather than a means of exporting English litigation practices abroad.
For commercial litigators, the decision highlights the practical and procedural realities of obtaining evidence from overseas witnesses: there are no shortcuts, and parties must be prepared to place themselves in the hands of the foreign court and its procedures when seeking overseas evidence.
What are the rules?
CPR 34.13 allows a party to apply to the High Court for a letter of request seeking evidence from a witness located abroad for use in English proceedings. The procedure operates alongside the 1970 HEC.
The starting point is that a letter of request is a request from the English court to a court, or “judicial authority”, in another jurisdiction asking the receiving court to obtain evidence and transmit it back for use in the English proceedings. The foreign court is ordinarily responsible for executing the request in accordance with its own procedural rules.
As held by the Court of Appeal in Honda2, in considering whether to order that a letter of request be issued, the Court should ask two preliminary questions:
- whether the intended witness can reasonably be expected to have relevant evidence to give on the topics set out in the relevant letter of request
- whether the intention underlying the formulation of those topics is an intention to obtain evidence for use at the trial or is some other impermissible intention – e.g. mere general investigation.
If both those preliminary questions are answered in the affirmative, then in principle the application should be granted, subject to four further points also set out in Honda:
- whether the request is oppressive
- whether the request is too wide
- other case management considerations, including proportionality and whether the evidence is necessary for the fair determination of the issues
- whether there has been delay in making the application.
What happened in Whiteleave?
The Claimant sought two letters of request:
- a request to Cyprus seeking evidence from four witnesses
- a request to Germany seeking evidence from one witness.
The Commercial Court accepted that the witnesses could reasonably be expected to have relevant evidence. Indeed, the Defendants did not resist the application on relevance grounds. Instead, their challenge focused on the potential case management burden and timing of the application, which (if granted) they contended would cause “such extreme disadvantage ... as to be oppressive”.
The dispute therefore centred on how the proposed evidence-gathering exercise would be conducted. As drafted, both requests envisaged a significant degree of involvement by English lawyers in the overseas examination process. That approach led Bright J to consider the purpose and operation of CPR 34.13 and the 1970 HEC.
What did the court decide?
The Cyprus request
The Cyprus request was extensive.
It comprised 3,605 pages of materials, included very substantial lists of questions, sought documentary evidence and envisaged a lengthy examination process involving English legal representatives.
The Court refused the request in its existing form, emphasising that, under CPR 34.13 and the 1970 HEC, the normal position is that the foreign court obtains the evidence according to its own procedures and in its own language.
The most significant issue was that the letter did not ask the Cypriot court to examine the witnesses itself or even ask local counsel to; instead it proposed English counsel questioning witnesses and the exercise being carried out largely in English.
The request also had not been translated into Greek. The Court considered that it was inappropriate to expect the Cypriot court to operate using vast quantities of English-language material solely for the convenience of the English litigants.
The scale and timing of the proposed exercise was also relevant. The Court accepted that requiring parties and lawyers to participate in what could amount to several days of overseas examinations shortly before trial risked creating a disproportionate burden.
The Germany request
The Germany request differed in several important respects.
It concerned only one witness, had been translated into German, did not propose that the examination be led by English counsel, and did not contain a request for documents. Nevertheless, it still contemplated participation by English counsel in the examination process, including by way of asking supplementary questions of the witness.
The claimant relied on information published under the 1970 HEC suggesting that parties' representatives may, in some circumstances, ask limited follow-up questions following examination by the German judge. Bright J accepted that such limited participation might be permissible, however he concluded that this did not justify the extensive involvement of English advocates proposed by the Claimant and emphasised that any questioning should proceed through the German process and in German.
While substantially more compliant than the Cyprus request, the Germany request was also refused in its existing form and required amendment.
A refusal of form, not substance
Importantly, the Court did not conclude (and the Defendants did not argue) that the evidence was irrelevant or that letters of request were inappropriate in principle.
While the Defendants expressed concerns around timing/delay, and the Court accepted it was possible the letters (once amended and issued) may not be executed in time for trial, it considered that, on the evidence, there was a realistic chance or probability that the evidence would be available in time. (The 1970 HEC practical information indicated a 3-5 month execution period for the Cyprus request, and a 6 month period for the Germany request. At the time judgment was handed down, trial was 8 months away, in April 2027).
Instead, the applications failed because the Claimant sought to use the letters of request procedure in a manner inconsistent with the role of the receiving court. Bright J requested both letters be revised in accordance with his judgment.
Key takeaways
1. There are no shortcuts
The principal lesson from the decision is that parties cannot use the 1970 HEC to recreate an English cross-examination abroad. Parties seeking to maintain control over the process by avoiding instructing foreign counsel will receive pushback.
A letter of request is not simply a mechanism for relocating an English evidential hearing to another country. It is a request for the foreign court to obtain evidence using the procedural framework available in that jurisdiction.
Practitioners should therefore begin by asking: "How would this evidence be obtained under local law?" necessarily requiring the instruction of foreign counsel.
2. Foreign courts are not administrative assistants to English proceedings
The judgment reflects a strong emphasis on judicial harmony.
The receiving court is not expected to facilitate an English procedure; the foreign court's processes, language requirements and procedural rules must be respected.
In practical terms, that is likely to require:
- translated requests
- translated supporting documents
- local lawyer
- local procedural advice
- acceptance that the process may unfold differently from an English witness examination.
It follows that the procedure is reciprocal. Where foreign litigants seek evidence from witnesses in England, the English court similarly expects the evidence-gathering exercise to be conducted in English, in accordance with English procedural requirements and by English-qualified lawyers.
3. Proportionality matters
The judgment also demonstrates that the court will scrutinise the practical burden of a proposed request.
Large document sets, lengthy question schedules and extensive overseas examination processes may all influence the court's exercise of discretion, even where the evidence sought is relevant.
Applicants should therefore consider carefully whether the scope of a request can be narrowed and simplified.
4. Witness burden is becoming increasingly important
A notable feature of the judgment is the Court's concern about the burden imposed on witnesses themselves.
Applicants need to address not only why the evidence is relevant and to comply with local law, but also how the process will operate in practice for the individuals being examined.
Conclusion
While Rusal v Whiteleave does not alter the established principles governing letters of request, it provides an important reminder about their fundamental nature. A letter of request is not a tool for extending English litigation procedures across borders. It is a request for assistance from a foreign court, and that assistance must be sought on the foreign court's terms.
For litigants, the message is straightforward: if evidence is required from an overseas witness, there is no procedural shortcut. Parties must be prepared to engage with the legal system of the requested state, comply with its procedural requirements and trust the foreign court to carry out the evidence-gathering exercise. Attempts to retain control of the process through English lawyers, English-language materials or English procedures will likely lead to the court requiring revision of the letters. The practical information published under the 1970 HEC must be consulted.
Parties must also ensure they do not delay in their applications to the English court; while the Court in this case acknowledged that letters of request are often regarded as a “last resort”, and may not always know until a relatively late stage in proceedings (as was the case here) whether another party is intending to call the relevant witnesses, the prospect of a proposed letter of request causing prejudice to any trial date will be a key consideration for the court generally and in relation to the third and fourth Honda points in particular.