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[O. 70, rr. 1-5

ORDER 70

OBTAINING EVIDENCE FOR FOREIGN COURTS, ETC.

Jurisdiction to make Order

1. The power of the High Court or a Judge thereof under the Foreign Tribunals Evidence Act, 1856 (19 and 20 Vict., c. 113), or the Evidence by Commission Act, 1859 (22 Vict., c.20), to make, in relation to a matter pending before a court or tribunal in a place outside the jurisdiction, order for the examination of witnesses and for attendance and for production of documents and to give directions may be exercised by a Judge in Chambers.

Application of Order

2. (1) Subject to paragraph (3) and rule 3, an application for an order under the Foreign Tribunals Evidence Act, 1856 or under the Evidence by Commission Act, 1859, must be made ex parte by a person duly authorised to make the application on behalf of the court or tribunal in question and must be supported by affidavit.

(2) There must be annexed or exhibited to the affidavit in support the letter of request, certificate or other document evidencing the desire of the court or tribunal to obtain for the purpose of a matter pending before it the evidence of the witness to whom the application relates or the production of any documents and, if that document is not in the English language, a translation thereof in that language.

(3) After an application for such an order as is mentioned in paragraph (1) has been made in relation to a matter pending before a court or tribunal, an application for a further order or directions in relation to the same matter must be made by summons.

Application by Attorney General in Certain Cases

3. (1) Where a letter of request, certificate or other document requesting that the evidence of a witness within the jurisdiction in relation to a matter pending before a court or tribunal in a foreign country be obtained-

(a) is received by the Minister and sent by him to the Registrar with an intimation that effect should be given to the request without requiring an application for that purpose to be made by the agent in Trinidad and Tobago of any party to the matter pending before the court or tribunal, or

(b) is received by the Registrar in pursuance of a Civil Procedure Convention providing for the taking of the evidence of any person in Trinidad and Tobago for the assistance of a court or tribunal in the foreign country, and no person is named in the document as the person who will make the necessary application on behalf of such party, the Registrar shall send the document to the Attorney General who may make an application for an order under the Foreign Tribunals Evidence Act 1856, and take such other steps as may be necessary to give effect to the request.

(2) For the purposes of this rule "the Minister" means the Minister charged with the responsibility for External Affairs.

Persons to Take and Manner of Taking Examinations

4. (1) Any order made in pursuance of this Order for the examination of a witness may order the examination to be taken before any fit and proper person nominated by the person applying for the order or before such other qualified person as to the Court seems fit.

(2) Subject to any special directions contained in any order made in pursuance of this Order for the examination of any witness, the examination shall be taken in manner provided by Order 39 rules 5 to 10 and 11(1) to (3), and an order may be made under Order 39, rule 14, for payment of the fees and expenses due to the examiner, and those rules shall apply accordingly with any necessary modifications.

Dealing with Deposition

5. (1) Unless any order made in pursuance of this Order for the examination of any witness otherwise directs, the examiner before whom the examination was taken must send the deposition of that witness to the Registrar, and the Registrar shall-

(a) give a certificate sealed with the seal of the Supreme Court for use out of the jurisdiction identifying the documents annexed thereto, that is to say, the letter of request, certificate, or other

[O. 70, r. 5

document from the court or tribunal out of the jurisdiction requesting the examination, the order of the Court for examination and the deposition taken in pursuance of the order; and

(b) send the certificate with the documents annexed thereto to the Minister, or, where the letter of request, certificate or other document was sent to the Registrar by some other person in accordance with a Civil Procedure Convention to that other person, for transmission to that court or tribunal.

(2) In this rule "the Minister" has the meaning assigned to it by rule 3(2).