In two recent cases the English High court decided to set aside its order giving effect to a Letter of Request (“LoR”). In Bank of England v Treasury Solicitor [2025] EWHC 488 (KB) the order was set aside due to the confidentiality of the information requested, and because to compel the Bank of England (“BoE”) to make the disclosure would have prejudiced the UK’s sovereignty. Meanwhile, the order in Byju's Alpha, Inc v OCI Ltd and others [2025] EWHC 271 (KB) was set aside because the LoR sought to obtain information, rather than probative evidence for trial, and because enforcing the order would have been oppressive to the respondent.
Bank of England and Byju’s Alpha are helpful additions to the limited case law relating to LoRs. They also provide an important reminder that while it is the English court’s general “duty” and “pleasure” to do all it can to assist a foreign court in giving effect to a LoR in England and Wales, it should not be assumed that it will always be able to do so.
A LoR is a powerful mechanism for foreign litigants to obtain access to documentary and oral evidence from parties based in England and Wales. A case’s outcome may turn on access to that vital evidence. Despite this, there is little written guidance and limited case law on the LoR procedure. Bank of England and Byju’s Alpha provide helpful examples of the circumstances in which the English court are likely to be unwilling to give effect to a LoR on the basis either of a failure to comply with English law requirements, or oppression or the infringement of UK sovereignty.
Basis for Letters of Request
The procedure for LoRs derives from international convention, English statute, and the Civil Procedure Rules and relevant practice directions.
Under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the courts of a contracting state can issue a LoR requesting that the English court provide assistance to obtain evidence for use in judicial proceedings. The Evidence (Proceedings in Other Jurisdictions) Act 1975 gives effect to the Hague Convention in England and Wales, allowing the English court to act upon a LoR as it deems appropriate for evidence to be obtained “for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated” (s.1).
Procedure
To obtain an order from the English court requiring a person to disclose documents or to give oral evidence, the applicant must first present a LoR to the foreign court issuing the request (for example, the United States District court for the Southern District of New York). Often, English solicitors will be involved in drafting the LoR in order to ensure that it accords with English procedural requirements. For instance, the English court may not give effect to LoRs which are too broad, such as if it were to seek the type of disclosure typically ordered by way of pre-trial discovery in US proceedings.
Once approved by that foreign court, an application must then be made to the English court requesting that it gives effect to the LoR by ordering the giving of oral evidence in this jurisdiction (usually in the form of the deposition of a witness) and/or the production of documents in this jurisdiction.
English law requirements
An application to give effect to a LOR is typically made to the English court by English solicitors on behalf of the foreign applicant. As an alternative, it is possible for the requesting court (i.e. the foreign court) to contact the English court directly. However, acting via English solicitors significantly speeds up the process and can result in an order being obtained in weeks rather than months.
The court’s general position is favourable to the applicant. However, it is not without limits. Section 2(3) of the 1975 Act states that no steps can be taken other than "steps which can be required to be taken” by way of obtaining evidence for civil proceedings in the English court. This means, for example, that the English court may consider the relevance and scope of the information sought, and whether the request is oppressive to the witness.
Where the scope of documents requested is too wide, the English court may use a ‘blue pencil’ approach, limiting the scope of the draft order. If the English court refuses a request for the production of documents but allows a deposition / oral evidence, it may be possible to obtain during that oral evidence sufficient information from the witness to identify the documents more specifically. A further request could then be made for their production.
If and once the English court gives effect to a LoR by making an order for the giving of oral evidence or the production of documents in this jurisdiction, failure to comply can have significant consequences. Where appropriate, the English court will consider making a contempt of court order against a respondent that fails to comply with an order for the production of documents.
Bank of England v Treasury Solicitor
In a judgment handed down this year, the English court set aside a previous order giving effect to a LoR on the basis that the disclosure sought to be produced was confidential information and its disclosure prohibited under statute and separately on the basis that its compulsion would prejudice the UK’s sovereignty.
In 2016 the Ukrainian government chose to nationalise and recapitalise PrivatBank. This involved writing down and converting to equity some of its liabilities (the “Bail-in”). One of the creditors whose loans were written down was a UK SPV that had funded the loans by issuing loan notes. In 2017, the National Bank of Ukraine requested that the Bank of England (“BoE”) recognise the Bail-in under the Banking Act 2009. The BoE recognised the Bail-in and HM Treasury provided its approval in 2021.
Subsequently, a claim was brought by some of the UK SPV’s noteholders seeking to invalidate the share purchase agreement involved in the Bail-in. As part of the challenge to the Bail-in, an application was made to the Ukrainian court to issue a LoR to the English court in relation to relevant documentary evidence held by the BoE. The High court gave effect to the LoR, ordering the BoE to disclose documents relating to the Bail-in. The BoE applied to have the order set aside on two grounds.
First, the BoE argued that the documents constituted confidential information, and the disclosure was prohibited under the Financial Services and Markets Act 2000 and the Banking Act 2009.
Second, the BoE argued that compelling disclosure could put its ability to interact with other central banks and resolution authorities at risk, thereby prejudicing the UK’s sovereignty. For this reason, the court should refuse to give effect to the LoR in accordance with Art. 12 of the Hague Evidence Convention.
The Decision
The English court set aside the order, noting that either ground was sufficient reason to do so.
Regarding the issue of confidentiality, the court concluded that the requested documents were confidential information. Under the relevant legislation, the National Bank of Ukraine and PrivatBank would both need to consent to the disclosure. As neither had consented and no exceptions were applicable, the BoE could not disclose the documents, and it was beyond the court’s power to compel the disclosure.
Likewise, the court noted that the BoE’s vital regulatory functions relied on the maintenance of confidentiality, and its information sharing arrangements with other regulators around the world. Compelling disclosure under the circumstances could harm other central banks’ and resolution authorities’ confidence in the BoE, and therefore risk prejudicing the sovereignty of the UK. As such the request could also be refused under Art. 12 of the Hague Evidence Convention and thus the order set aside on this basis.
Byju's Alpha, Inc v OCI Ltd and others
In another recent case the English court set aside a previous order giving effect to a LoR on the basis that the request was one for information rather than evidence and was oppressive to the respondents.
Alpha brought a claim in the United States Bankruptcy Court for the District of Delaware, alleging that it had suffered a loss due to its former directors’ fraudulent conduct. The defendant in that claim had loaned money to one of the respondents to the LoR, OCI Ltd, the other respondents being one of its directors, and one of its advisors (collectively “the OCI parties”). The OCI parties were not referred to in the Delaware claim. However, it was Alpha’s case that the OCI parties had information relating to where Alpha’s funds were transferred to and for what reason.
A LoR was issued for the OCI parties to produce documents and/or give sworn testimony. The English court then issued an order giving effect to it. However, the OCI parties applied to have the order set aside on two grounds.
First, the OCI parties argued that the LoR sought to obtain pre-trial discovery type material, and was therefore of wider scope than permitted to be ordered under English law.
Second, the OCI parties argued that if the order were upheld, they would be forced to provide material to Alpha that Alpha could then use for the purpose of considering and/or framing substantive proceedings against the OCI parties themselves.
The Decision
The court agreed with the OCI parties, determining that the request – which stated that the relevant subject matter was “the transfers and location of the Alpha Funds” and “current location of and what happened to the $533 million…” – was for information gathering purposes rather than specific evidence directed at an issue of fact requiring proving at trial.
The judgment distinguished between “information”, referring to anything of potential relevance, and “evidence” which is specifically information that has “probative value in relation to a factual allegation”. On this basis, the court determined that the scope of the LoR was too wide and the order should be set aside.
The court also held that allowing the order to stand would be oppressive to the respondents. The effect of it was to allow Alpha to obtain testimony and documents from the respondents which would allow them to formulate a fraud claim against them and without them knowing what the claim would be.
Comment
A LoR is a powerful tool allowing foreign litigants to obtain orders from the English court for an individual or entity in this jurisdiction to provide oral and/or documentary evidence for use at trial in foreign proceedings. An order can be obtained in a matter of weeks and at relatively low cost.
Bank of England and Byju’s Alpha are helpful additions to the case law on LoRs, and important reminders of the circumstances in which a LoR may be unsuccessful or a previous order to give effect to a LoR set aside.
Foreign litigants interested in going down this route should consider instructing experienced English solicitors at an early stage, ideally prior to seeking the LoR from the foreign court so as to maximise the likelihood of the English court making the order in the form sought. CMS has significant experience assisting foreign litigants in this area.
