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Testifying in the UK from Spain: Requesting Permission

Directiva de la UE sobre viajes combinados

The EU Directive on package travel aims to improve the rights of travelers, which include the right to redress in case of the travel organizer’s failure to properly execute the services provided within the purchased package. A “package travel” refers to combinations of travel services that usually include transport, hotel, and other services, such as car rental.

Each year, UK organizers receive thousands of claims from dissatisfied consumers seeking redress for an alleged failure in the services provided by the Spanish supplier, often leading to litigation in British courts. In judicialized cases, the testimony of the supplier, and their subsequent appearance by videoconference or in person, are key in their defense.

In the UK, requests for obtaining testimonial evidence in civil and commercial cases from other countries are regulated by the Hague Convention and bilateral agreements between the UK and other countries. In 2023, the Foreign, Commonwealth & Development Office (FCDO) published a guide on the procedure to be followed by litigants wishing to present witnesses from abroad. Although some countries allow it, the guide did not mention important holiday destinations for the British like Greece, Portugal, or Spain.

This guide was published following the judgment in the case Agbabiaka (evidence abroad; Nare guide) [2021] on the oral evidence to be presented by videoconference by a person who is in the territory of a State different from the UK. The judgment includes the following explanation:

“For a long time, there has been an understanding among Nation States that one State should not attempt to exercise the powers of its courts in the territory of another, without having permission from that other State to do so. Any breach of this agreement by a UK court runs the risk of damaging this country’s diplomatic relations with other States and is, therefore, contrary to the public interest.”

On November 29, 2021, the FCDO created an “Evidence Obtaining Unit” [“ToE”], whose aim is to verify the stance of a foreign State in relation to obtaining oral evidence from its own citizens. The procedure can take time. Firstly, inquiries are directed to the “ToE,” as well as to the Embassy or High Commission in question, to ensure that the country from which evidence is to be obtained raises no objection. Subsequently, the applicant must inform the competent court of the outcome of their inquiries.

Since then, Spain has made it clear that it does not allow its citizens to testify via videoconference in the UK. The evidence can be carried out through a written statement, being read in hearing before the court. Nonetheless, the denial of permission causes a certain defenselessness for the British organizer being sued, as they cannot provide important evidence, such as the appearance of a witness via videoconference from our country, their examination, and having the opportunity to respond to it before judge and parties.

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