PART 34WITNESSES, DEPOSITIONS AND EVIDENCE FOR FOREIGN COURTS
F1I WITNESSES AND DEPOSITIONS
F2Scope of this Section34.1
(1)
This Section of this Part provides—
(a)
for the circumstances in which a person may be required to attend court to give evidence or produce a document; and
(b)
for a party to obtain evidence before a hearing to be used at the hearing.
(2)
In this Section, reference to a hearing includes a reference to the trial.
Witness summonses34.2
(1)
A witness summons is a document issued by the court requiring a witness to—
(a)
attend court to give evidence; or
(b)
produce documents to the court.
(2)
A witness summons must be in the relevant practice form.
(3)
There must be a separate witness summons for each witness.
(4)
A witness summons may require a witness to produce documents to the court either—
(a)
on the date fixed for a hearing; or
(b)
on such date as the court may direct.
(5)
The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.
Issue of a witness summons34.3
(1)
A witness summons is issued on the date entered on the summons by the court.
(2)
A party must obtain permission from the court where he wishes to—
(a)
have a summons issued less than 7 days before the date of the trial;
(b)
have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or
(c)
have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.
(3)
A witness summons must be issued by—
(a)
the court where the case is proceeding; or
(b)
the court where the hearing in question will be held.
(4)
The court may set aside(GL) or vary a witness summons issued under this rule.
Witness summons in aid of inferior court or of tribunal34.4
(1)
The court may issue a witness summons in aid of an inferior court or of a tribunal.
(2)
The court which issued the witness summons under this rule may set it aside.
(3)
In this rule, “inferior court or tribunal” means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.
Time for serving a witness summons34.5
(1)
The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.
(2)
The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.
(3)
A witness summons which is—
(a)
served in accordance with this rule; and
(b)
requires the witness to attend court to give evidence,
is binding until the conclusion of the hearing at which the attendance of the witness is required.
Who is to serve a witness summons34.6
(1)
A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.
(2)
Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.
Right of witness to travelling expenses and compensation for loss of time34.7
At the time of service of a witness summons the witness must be offered or paid—
(a)
a sum reasonably sufficient to cover his expenses in travelling to and from the court; and
(b)
such sum by way of compensation for loss of time as may be specified in F3Practice Direction 34A.
Evidence by deposition34.8
(1)
A party may apply for an order for a person to be examined before the hearing takes place.
(2)
A person from whom evidence is to be obtained following an order under this rule is referred to as a “deponent” and the evidence is referred to as a “deposition”.
(3)
An order under this rule shall be for a deponent to be examined on oath before—
(a)
a judge;
(b)
an examiner of the court; or
(c)
such other person as the court appoints.
(Rule 34.15 makes provision for the appointment of examiners of the court)
(4)
The order may require the production of any document which the court considers is necessary for the purposes of the examination.
(5)
The order must state the date, time and place of the examination.
(6)
At the time of service of the order the deponent must be offered or paid—
(a)
a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
(b)
such sum by way of compensation for loss of time as may be specified in F4Practice Direction 34A.
(7)
Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
(Part 32 contains the general rules about witness statements and witness summaries)
Conduct of examination34.9
(1)
Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.
(2)
If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.
(3)
The examiner may conduct the examination in private if he considers it appropriate to do so.
(4)
The examiner must ensure that the evidence given by the witness is recorded in full.
(5)
The examiner must send a copy of the deposition—
(a)
to the person who obtained the order for the examination of the witness; and
(b)
to the court where the case is proceeding.
(6)
The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.
Enforcing attendance of witness34.10
(1)
If a person served with an order to attend before an examiner—
(a)
fails to attend; or
(b)
refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document at the examination,
a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.
(2)
On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.
(3)
An application for an order under this rule may be made without notice.
(4)
The court may order the person against whom an order is made under this rule to pay any costs resulting from his failure or refusal.
Use of deposition at a hearing34.11
(1)
A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise.
(2)
A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.
(3)
He must serve the notice at least 21 days before the day fixed for the hearing.
(4)
The court may require a deponent to attend the hearing and give evidence orally.
(5)
Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of rule 32.13 (availability of witness statements for inspection).
Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial34.12
(1)
Where the court orders a party to be examined about his or any other assets for the purpose of any hearing except the trial, the deposition may be used only for the purpose of the proceedings in which the order was made.
(2)
However, it may be used for some other purpose—
(a)
by the party who was examined;
(b)
if the party who was examined agrees; or
(c)
if the court gives permission.
Where a person to be examined is out of the jurisdiction—letter of request34.13
F5(1)
This rule applies where a party wishes to take a deposition from a person who is—
(a)
out of the jurisdiction; and
(b)
not in a Regulation State within the meaning of Section III of this Part.
(1A)
The High Court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is.
(2)
A letter of request is a request to a judicial authority to take the evidence of that person, or arrange for it to be taken.
(3)
The High Court may make an order under this rule in relation to F6County Court proceedings.
(4)
(5)
A person may be examined under this rule on oath or affirmation or in accordance with any procedure permitted in the country in which the examination is to take place.
(6)
If the High Court makes an order for the issue of a letter of request, the party who sought the order must file—
(a)
the following documents and, except where paragraph (7) applies, a translation of them—
(i)
a draft letter of request;
(ii)
a statement of the issues relevant to the proceedings;
(iii)
a list of questions or the subject matter of questions to be put to the person to be examined; and
(b)
an undertaking to be responsible for the Secretary of State’s expenses.
(7)
There is no need to file a translation if—
(a)
English is one of the official languages of the country where the examination is to take place; or
(b)
a practice direction has specified that country as a country where no translation is necessary.
F9Letter of request – Proceeds of Crime Act 200234.13A.
(1)
This rule applies where a party to existing or contemplated proceedings in—
(a)
the High Court; or
(b)
a magistrates' court,
under Part 5 of the Proceeds of Crime Act 2002 (civil recovery of the proceeds etc. of unlawful conduct) wishes to take a deposition from a person who is out of the jurisdiction.
(2)
The High Court may, on the application of such a party, order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is.
(3)
Paragraphs (4) to (7) of rule 34.13 shall apply irrespective of where the proposed deponent is, and rule 34.23 shall not apply in cases where the proposed deponent is in a Regulation State within the meaning of Section III of this Part.
Fees and expenses of examiner F10of the court34.14
F11(1)
An examiner of the court may charge a fee for the examination.
(2)
He need not send the deposition to the court unless the fee is paid.
(3)
The examiner’s fees and expenses must be paid by the party who obtained the order for examination.
(4)
If the fees and expenses due to an examiner are not paid within a reasonable time, he may report that fact to the court.
(5)
The court may order the party who obtained the order for examination to deposit in the court office a specified sum in respect of the examiner’s fees and, where it does so, the examiner will not be asked to act until the sum has been deposited.
(6)
An order under this rule does not affect any decision as to the party who is ultimately to bear the costs of the examination.
Examiners of the court34.15
(1)
The Lord Chancellor shall appoint persons to be examiners of the court.
(2)
The persons appointed shall be barristers or solicitor-advocates who have been practising for a period of not less than three years.
(3)
The Lord Chancellor may revoke an appointment at any time.