Foreign lawyers cannot cross-examine witness before advocate commissioners: Kerala High Court

The Kerala High Court on Monday held that foreign lawyers cannot examine or cross-examine witnesses before an advocate commissioner appointed by Indian courts [Sharestates, Inc v Prasad Choorakuzhiyil Gopalan & ors].

The Court said that recording evidence is part of litigation and can be undertaken only by advocates entitled to practice in the country.

However, the Court clarified that foreign lawyer may attend, observe and participate in the proceedings.

Justice Mohammed Nias CP delivered the ruling while deciding an application in a proceeding initiated by Sharestates Inc, an American company.

Sharestates sought execution of a Letter of Request issued by a United States district court for recording evidence from an Indian witness residing within the jurisdiction of the Kerala High Court.

The US court issued the request under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial matters seeking documentary and oral evidence from an Indian resident for use in an ongoing civil suit in the US.

After the High Court appointed an advocate commissioner to record the witness's evidence, the respondents who are the defendants in the US proceedings, sought permission for their US counsel to participate in the examination and cross examination of the witness before the commissioner.

The petitioner opposed this request stating that it would amount to permitting foreign lawyers to practice law in India.

After considering the rival submissions, the Court observed that although Article 9 of the Hague Convention permits a foreign court to request a particular procedure for recording evidence, such a procedure could be followed only if it is compatible with the law of the country where the evidence is being recorded.

"This is made clear in the Letter of Request itself, which states that the examination shall be conducted under the Federal Rules of Civil Procedure of the United States of America, except to the extent that such procedure is incompatible with the law of India," the Court added.

Referring to the Supreme Court's decision in Bar Council of India v AK Balaji and the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 (the BCI Rules), the Court observed that foreign lawyers are permitted to practice in India only in limited non-litigious areas, such as advising on foreign law and participating in certain international arbitration proceedings.

The BCI Rules specifically prohibit foreign lawyers from appearing before courts, tribunals or authorities which are empowered to record evidence on oath.

Recording evidence before a Court appointed commissioner under Order XXVI of the Code of Civil Procedure, forms part of the judicial process and would amount to practice of law, the Court concluded.

It further explained that commissioners functioned as the eyes and ears of the Court and acted as its extended arm while recording evidence, since the commissioner's report forms part of the judicial record, therefore, examination and cross-examination before the commissioner cannot be equated with non-litigious legal work.

Hence, the court declined the request to permit foreign counsel to conduct the examination or cross examination and permitted them to observe the proceedings.

The matter was posted to August 13 for further consideration.

Advocates Ramola Nayanpally, Parvathy Kottol, Pranoy Harilal, Giridhar Krishna Kumar and Jaishwal Harshit Chetan Kumar appeared for the petitioners.

Advocates P Prijith, Sidharth A Menon and Thomas P Kuruvilla appeared for the respondents.

M Shajna served as Advocate Commissioner.

[Read Order]