Preparation for trial - Summoning witnesses

Learning Outcomes

This article details the procedures for securing witness attendance at civil trials in England and Wales. It explains the purpose and use of witness summonses under CPR Part 34, the steps for issuing and serving them, and the consequences of non-compliance. For the SQE1 assessments, you will need to understand the rules governing witness summonses, including the requirements for service, the entitlement to expenses, and the court's powers to compel attendance. This knowledge will enable you to apply the relevant principles to SQE1-style single best answer questions concerning trial preparation and evidence.

SQE1 Syllabus

For SQE1, you need to understand the practical steps involved in preparing a case for trial, including ensuring the attendance of necessary witnesses. This involves applying the rules under CPR Part 34 regarding witness summonses.

As you work through this article, focus your revision on:

  • the procedure for issuing a witness summons (CPR 34.3)
  • the time limits for serving a witness summons (CPR 34.5)
  • the requirement to offer or pay witness expenses (CPR 34.7)
  • the consequences of a witness failing to attend court in response to a summons (CPR 34.8)
  • distinguishing between compelling attendance for giving evidence and producing documents.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the minimum notice period generally required for serving a witness summons before the hearing date?
    1. 3 clear days
    2. 5 business days
    3. 7 days
    4. 14 days
  2. Which of the following is a potential consequence for a witness who fails to attend court after being served with a valid witness summons?
    1. An adverse costs order
    2. A default judgment against the party who summoned them
    3. Being held in contempt of court
    4. Having their evidence automatically disregarded

  3. True or false? A party issuing a witness summons must offer the witness payment for their time off work, regardless of the amount.

Introduction

Ensuring that key witnesses attend trial is a critical aspect of case preparation. While many witnesses attend voluntarily, some may be reluctant or unable to do so without a formal court order. The Civil Procedure Rules (CPR) provide a mechanism to compel attendance through a witness summons. Understanding the purpose, procedure, and implications of witness summonses is essential for effective litigation practice and success in the SQE1 assessments. This article outlines the rules governing the summoning of witnesses to give evidence or produce documents in civil proceedings.

The Purpose and Power of a Witness Summons

A witness summons is a formal document issued by the court requiring an individual to attend court on a specific date to either give oral evidence or produce documents relevant to the proceedings. This power is granted under CPR Part 34.

Key Term: Witness Summons A document issued by the court requiring a witness to attend court to give evidence or to produce documents to the court (CPR 34.2).

The primary purpose is to ensure that parties can present necessary evidence to the court, thereby supporting the just resolution of the dispute. It is used when a party anticipates that a witness may not attend voluntarily or when specific documents held by a witness are required.

When is a Witness Summons Necessary?

A party should consider applying for a witness summons if:

  • There are reasonable grounds to believe a witness will not attend voluntarily.
  • The witness's evidence is essential for the party's case.
  • Specific documents held by the witness are necessary for the trial and cannot easily be obtained otherwise.

It is often good practice to discuss attendance with a witness informally first. If they agree to attend, a summons might be unnecessary, saving costs and maintaining a good relationship. However, if there is any doubt, securing a summons provides certainty.

Worked Example 1.1

Freya is suing David for breach of contract. A former employee of David, Sarah, possesses emails essential to Freya's case but is reluctant to get involved due to loyalty to David. Freya's solicitor has informally requested Sarah's attendance, but Sarah has declined. What should Freya's solicitor advise?

Answer: Freya's solicitor should advise applying for a witness summons under CPR Part 34 to compel Sarah's attendance and potentially require her to produce the relevant emails. Given Sarah's reluctance, voluntary attendance is unlikely, and the evidence appears essential.

Procedure for Issuing and Serving a Witness Summons

The process for obtaining and serving a witness summons is governed by CPR Part 34 and its accompanying Practice Direction (PD 34A).

Issuing the Summons (CPR 34.3)

  1. Application: The party seeking the summons (the applicant) must complete the relevant court form (Form N20). This form requires details of the witness, the hearing date, and what the witness is required to do (give evidence, produce documents, or both).
  2. Court Fee: A court fee is payable upon application.
  3. Issuance: The application is filed at the court where the case is being heard (or, if not yet allocated, potentially the court where it is likely to be heard). The court issues the summons by sealing it. Two copies are typically needed for each witness (one for service, one for the court file).

Serving the Summons (CPR 34.5 & 34.6)

  1. Timing: The general rule under CPR 34.5(1) is that a witness summons must be served on the witness at least 7 days before the date they are required to attend court.
  2. Method: Service is usually personal service, meaning handing it directly to the witness or leaving it with them. If personal service is not possible, an application can be made for service by an alternative method.
  3. Service by Court: A party can request the court to serve the summons (CPR 34.6(1)).

Worked Example 1.2

A trial is listed for Tuesday, 14th May. Raj needs to ensure his key witness, Ben, attends. Ben has verbally agreed but Raj is nervous he might change his mind. Raj's solicitor applies for and receives an issued witness summons on Monday, 6th May. What is the latest date the summons must be served on Ben?

Answer: The summons must be served at least 7 days before 14th May. Counting back 7 days (excluding the 14th), the latest day for service is Monday, 6th May. The solicitor must ensure Ben receives it by the end of that day.

Witness Expenses (CPR 34.7 & PD 34A para 3)

Crucially, when a witness summons is served, the witness must be offered or paid:

  • A sum reasonably sufficient to cover their travel expenses to and from court.
  • Compensation for their loss of time (e.g., loss of earnings).

Key Term: Conduct Money Money paid or offered to a witness served with a witness summons to cover their travelling expenses and compensate them for their loss of time (PD 34A para 3.1).

Failure to offer or pay conduct money at the time of service, or within a reasonable time before the hearing, may render the summons ineffective. The witness would have a valid reason not to attend.

Exam Warning

A common mistake is overlooking the requirement to offer or pay conduct money when serving a witness summons. Failure to do so means the witness is not obliged to attend, potentially jeopardising a party's case. Ensure this step is completed and evidenced.

Consequences of Non-Compliance

If a witness fails to attend court after being properly served with a valid witness summons and offered appropriate conduct money, they may face serious consequences.

Contempt of Court (CPR 34.8)

Failure to comply with a witness summons without just excuse can lead to the witness being held in contempt of court.

Key Term: Contempt of Court Conduct that defies, disrespects, or hinders the authority or administration of justice by the court. Penalties can include fines or imprisonment.

The court has the power to issue a warrant for the witness's arrest to bring them before the court (CPR 34.9).

Practical Implications for the Party

The non-attendance of a key witness can severely damage a party's case. It may lead to:

  • Inability to prove essential facts.
  • Adjournment of the trial, causing delay and additional costs.
  • Potentially weakening the overall credibility of the party's case.

Worked Example 1.3

Chen serves a witness summons on Liam 10 days before trial, offering reasonable travel expenses but no compensation for loss of time, despite knowing Liam will miss a day's wages. Liam does not attend the trial. Can Liam be held in contempt of court?

Answer: Likely not. Although served in time, Liam was not offered or paid sufficient conduct money to cover both travel and loss of time (specifically, his lost wages). Therefore, he likely had a "just excuse" for not attending, and the summons may be deemed ineffective. Chen cannot compel his attendance or seek contempt proceedings without rectifying the conduct money issue.

Summons to Produce Documents

A witness summons can also be used solely to require a person (who may not necessarily be needed to give oral evidence) to produce specific documents to the court (CPR 34.2(1)(b)).

The documents required must be clearly specified in the summons. The summons may require the documents to be produced either at the hearing or on an earlier date specified by the court.

Revision Tip

When advising a client on trial preparation, always distinguish between witnesses who are cooperative and likely to attend voluntarily, and those who might require a summons. For key but potentially reluctant witnesses, issuing a summons provides solid assurance. Remember to factor in the time needed for service and the requirement for conduct money.

Key Point Checklist

This article has covered the following key knowledge points:

  • A witness summons compels attendance or document production under CPR Part 34.
  • It is used when voluntary attendance is uncertain or document production is needed.
  • Form N20 must be completed and filed with the court fee.
  • The summons must generally be served at least 7 days before the hearing.
  • Conduct money (travel expenses and compensation for loss of time) must be offered or paid upon service.
  • Failure to comply with a valid summons can result in contempt of court proceedings.

Key Terms and Concepts

  • Witness Summons
  • Conduct Money
  • Contempt of Court
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