Cross‑border disputes are now part of everyday litigation practice. Scottish individuals and organisations are increasingly asked to provide evidence for proceedings taking place overseas. While in some countries, discovery (or disclosure) can appear wide‑ranging and unfamiliar, Scottish courts only permit recovery through a defined statutory framework. Understanding that framework at an early stage is essential.
The Evidence (Proceedings in Other Jurisdictions) Act 1975 provides the mechanism by which evidence located in Scotland can be recovered for use in foreign proceedings. For those in possession of relevant documents, careful handling of the process can avoid unnecessary cost, delay and risk.
The statutory route to recovery
The 1975 Act allows the Court of Session to make orders giving effect to letters of request, often referred to as letters rogatory, issued by a foreign court. In practice, a petition is generally brought by the Lord Advocate, acting on behalf of the requesting foreign court, seeking an order under sections 1 and 2 of the Act.
The Scottish court does not necessarily import the requesting court’s discovery/disclosure procedures. Instead, it applies familiar principles of relevance, specification and proportionality. Documents must be clearly identified by reference to categories that can be understood and complied with. Fishing expeditions should not be permitted.
This approach is often reassuring for Scottish document holders, but it can come as a surprise to overseas litigants who expect broader disclosure.
What compliance actually involves
An order under the 1975 Act is not a simple request to hand over papers. Compliance typically involves:
collation of all documents falling within the court‑approved specification.
sequential numbering of every page, usually using Bates numbering.
preparation of a signed inventory or schedule of productions.
certification by an authorised signatory of the organisation holding the documents.
The documents are not sent directly to the foreign court or the lawyers acting for the parties in the foreign litigation. They are transmitted through the Scottish Government Legal Directorate, reflecting the court‑to‑court nature of the process.
Failure to comply properly can have serious consequences, broadly mirroring the position for non‑compliance with an ordinary Court of Session order.
Oral evidence from Scottish witnesses
The 1975 Act is not limited to documents. The Court of Session can also order the taking of oral evidence from a witness in Scotland for use in foreign proceedings.
This may involve examination of the witness before a commissioner or other person appointed by the court, rather than attendance at the foreign court itself. The evidence must be relevant to the issues identified in the foreign proceedings and proportionate to what is reasonably required.
For witnesses and document holders alike, early advice is important. Preparation, clarity on the permitted topics and careful management of the process can significantly reduce disruption and risk.
Managing scope, timing and variation
Volume is a recurring issue. Requests can be extensive, and organisations may struggle to meet the default timetable, particularly where historic or decentralised records are involved.
Court of Session rules allow a document holder to apply to vary or recall an order. While Scottish case law is limited, the court will expect clear, evidenced reasons. Requests for more time or a narrowing of scope are more likely to succeed if raised promptly and supported by a realistic explanation of the burden involved.
How Thorntons can help
Thorntons has experience regarding claimants seeking Scottish evidence and advising document holders required to respond to foreign requests. We guide clients through every stage, from assessing letters of request to managing document production and oral evidence, and seeking variation of court orders where appropriate.
If you are involved in litigation abroad and need access to evidence in Scotland, or if your organisation has received a court order under the Evidence (Proceedings in Other Jurisdictions) Act 1975, speak to our Dispute Resolution team to ensure the process is handled correctly from the outset.
