High Court decisions setting aside letters of request for evidence for use in foreign proceedings

When parties to court proceedings wish to obtain evidence or documents from a third party in a foreign jurisdiction, there are various ways to achieve this. One route is to use the Letter of Request (LoR) procedure under the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial matters 1970 (the Hague Evidence Convention). Two recent High Court decisions, Byju's Alpha Inc v OCI Ltd & Ors [2025] EWHC 271 (KB) and Bank of England v Treasury Solicitor [2025] EWHC 488 (KB) illustrate various circumstances in which the English courts may refuse to give effect to a LoR issued by a foreign court under the Hague Evidence Convention and therefore refuse to order a third party in England to provide the requested evidence. 

The decisions provide some helpful guidance on crafting an LoR for those who are seeking to obtain evidence from England for use in foreign proceedings. They are also a reminder of potential grounds for challenge for those seeking to set aside an order for evidence against them. 

The legal framework

A large number of countries are parties to the Hague Evidence Convention. The Convention is given effect in English law by The Evidence (Proceedings in other Jurisdictions) Act 1975 (the Act). The Act gives the English courts the power to give effect to LoRs from judicial authorities in other jurisdictions. Importantly this is a power and not a duty to comply with the LoRs they receive and so the courts have discretion when considering requests.

In overview, a party to litigation in a foreign court asks that court to issue a letter of request to the courts in the receiving country where there is someone with information or documents they would like to obtain. Where the English courts are the receiving courts, an application is made to the courts for an order to give effect to the LoR.  If the court is satisfied it is a valid request, it will issue an order for evidence giving effect to the LoR and the person named in the court order may be required, for example, to answer questions about certain issues or provide specified documents depending on what is sought in the LoR. 

Generally, the English court when dealing with an LoR should exercise its discretion by making the order sought in the LoR, unless it believes the application to be frivolous, vexatious or an abuse of process. It is not the role of the English court in these circumstances to consider the relevance of issues arising under foreign law, but it will consider relevancy if such issue has not been considered by the foreign judicial body.

However, the power under the Act is narrow and there are restrictions which preclude the English courts from making an order for evidence in certain circumstances. The person named in the court’s order could rely on these restrictions to challenge the LoR and apply to set aside the court order giving it effect. This is what happened in the two cases below, and they illustrate the different grounds for challenge. 

Byju's Alpha Inc v OCI Ltd & Ors [2025] EWHC 271 (KB)

The first case illustrates how an English court may set aside a LoR from a foreign court if (i) it is effectively seeking pre-trial discovery and investigating a claim rather than seeking evidence in support of allegations of fact in foreign proceedings (i.e. it is a fishing expedition) or (ii) it is drafted too widely and seeks broad categories of documents rather than particular documents.

Byju’s Alpha Inc. (Alpha) brought a fraud claim in the US courts against various defendants. The claim totalled US$533 million and was made shortly before Alpha went insolvent. Certain documents suggested that at some point, OCI Limited, a British company, had received the missing funds, but it was not a party to the US proceedings. To support its case, Alpha obtained an LoR from the US court which sought evidence from OCI and its officers (the Respondents) in England. An English Court made an order that the Respondents must answer questions on certain issues and provide various documents.

On receipt of the court order against them, the Respondents successfully challenged it. The Court hearing the application found that the LoR was not compliant with the Act and refused to give effect to it. Firstly, the Court held that the purpose of the LoR was to seek information, rather than evidence, from the Respondents. The LoR had been drafted to elicit information to increase Alpha’s understanding of relevant transactions involving the missing funds with a view to informing potential litigation decisions instead of obtaining evidence to support or prove the allegations made in the existing claim. The Judge observed that some of the allegations in the LoR had not yet been pleaded in the US proceedings.

Second, the Court also found that the LoR contravened the Act due to its lack of specificity. The Judge criticised the LoR’s adoption of a category-based approach, seeking “all documents and communications” of certain types rather than identifying particular documents to be produced. This placed the burden on the Respondents to assess each document themselves to see if it met the relevant criteria. What is required is a description which is sufficiently certain so that the recipient of the request knows the particular document or documents they need to bring with them. While recognising the importance of comity, especially in fraud cases, the Court emphasised that a LoR should seek specific disclosure, tailored to the issues sought.

Bank of England v Treasury Solicitor [2025] EWHC 488 (KB)

The second case illustrates another limitation on LoRs - where an English court cannot compel disclosure of the requested documents if sought in English proceedings, s.2(3) of the Act precludes such an order being made in response to an LoR. In this case disclosure was prohibited by primary legislation.

The High Court set aside an order requiring the Bank of England (BoE) to disclose documents pursuant to an LoR issued by the Commercial Court of Kyiv. 

Following the nationalisation of PrivatBank by Ukrainian authorities in 2016, the National Bank of Ukraine (NBU) requested that the BoE give it legal effect in the UK by recognising the "bail-in" under the Banking Act 2009. The bail-in was recognised by the BoE and approved by HM Treasury. An affected party sought disclosure of documents relating to the NBU's request to the BoE as part of proceedings in Ukraine challenging a share purchase agreement that implemented the bail-in. 

The Court accepted the BoE's argument that the disclosure was prohibited by English law, specifically the Financial Services and Markets Act 2000 and the Banking Act 2009. The Court found that the documents fell under the definition of “confidential information” in that legislation. Disclosure was prohibited without consent from both NBU and PrivatBank. The Court also concluded that compelling the BoE to disclose the requested documents could jeopardise its confidential information-sharing arrangements with other central banks and resolution authorities, which risked prejudicing the UK’s sovereignty. 

Key takeaways 

Both cases highlight the balance that must be struck by the English courts between jurisdictional cooperation and shielding parties from excessive litigation burden. 

These decisions underscore the importance of crafting LoRs that focus on specific documents rather than seeking broader pre-trial discovery and of ensuring compliance with the Act so that the time and cost of the LoR process is not wasted. 

With thanks to Lucy Reynolds for her assistance in preparing this article.