The employment tribunal has no power to order the attendance of a witness who is outside of Great Britain because its power to do so is expressly limited to the jurisdiction by Schedule 1, Rule 32 of the Employment Tribunal (Constitution And Rules of Procedure) Regulations 2013.
Of course, this does not mean that witnesses who are not based in Great Britain cannot give evidence. Many practitioners will have participated in hearings where witnesses have given evidence from abroad. More often than not, evidence will have been called without either the parties or the Tribunal considering whether it was appropriate and what, if any, permission would be required from the Country/State within which the witness was based when they give evidence.
Employment Tribunals have a broad discretion to admit evidence, and are not bound by the strict rules of evidence used in civil courts. Within the Civil Procedure Rules, Rule 32 provides the scope for video evidence (referred to as VCF) to be used at trial. Annex 3, to CPR 32, borrowed from Australian guidance, includes the following “4. It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (Legalisation Office) … with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF … will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome”. Despite these provisions in the CPR, there appears to have been little reference to these issues before Employment Tribunals.
Now that CVP has become ubiquitous, the barriers to people giving evidence from outside the jurisdiction have decreased. The recent case of Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 286 (IAC) is a timely reminder that not all Countries permit their citizens or individuals present in their territory to give evidence from their territory and that there is a specific procedure that a party must follow if it wishes for evidence to be given from outside the jurisdiction.
In Agbabiaka, a case before the First-tier Tribunal, concerned the taking of oral evidence by video from Nigeria. The Home Office Presenting Officer objected to the appeal proceeding because Mr Agbabiaka had not demonstrated that the national authorities of Nigeria had acquiesced in his participation in proceedings whilst he was in that territory.
The Basis for An Objection to Foreign Evidence
The Home Office’s objection to Mr Agbabiaka’s evidence was based upon the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (known as the Hague Convention). The Hague Convention established, in international law, a uniform framework of co-operation mechanisms to facilitate the taking of evidence abroad.
Article 1 of the Hague Convention provides that: “In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.” In international law, it is generally understood that a State has an obligation to obtain consent for evidence to be obtained from the citizen of another State. Where the State is not a signatory to the Hague Convention, a court or tribunal will be keen to ensure that the evidence can be taken lawfully, without damaging diplomatic relations with that State (see, Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2021] EWHC 255).
A New Procedure
In Agbabiaka, the Foreign, Commonwealth and Development Office (FCDO) gave evidence to the Tribunal that, from November 2021, the FCDO would be establishing the Taking of Evidence Unit of the (FCDO) for “Administrative Tribunals” and that the process was likely to be similar to that which was already established for civil and commercial proceedings.
Practically – the process the FCDO has established involves emailing a request to the FCDO to enquire from them whether they are aware of any diplomatic or other objection from the authorities in the Country from where it is proposed the witness will provide evidence via video link.
Mr Justice Lane in Agbabiaka considered the new FCDO procedure and handed down amended guidance, taking as his starting point the previous guidance from the case of NARE. That amended guidance can be summarised as follows:
The FCDO provide information on how they can be contacted here. Note if they do not hold the relevant information, there is a £150 fee. Further, it should be noted FCDO recommend making contact a minimum of 8-weeks before any hearing date. However, it will be expected that this process will have been undertaken before a Preliminary Hearing, where permission for evidence to be adduced from abroad is likely to be taken.
We understand that there is likely to be Presidential Guidance for Tribunals, no doubt taking into account the guidance by Mr Justice Lane, however in the interim the above will assist practitioners in preparing for any application for evidence to be provided from overseas.
This article was written by Jack Mitchell and Spencer Keen.
