I want to call someone as a witness in my case but I don’t think they will want to come to court. What should I do?

In certain cases a witness can be compelled to attend Court for the purpose of giving evidence or to produce documents to the Court. The process involves the service upon the witness of a “Witness Summons”.

How do I obtain a Witness Summons?

In order to obtain a Witness Summons it is necessary to first send 2 completed Witness Summonses to the Court in which the case is proceeding or where the hearing is to be held. This should be done by competing form N20, which can be obtained from the Court or found on the Court Service’s website. A separate Witness Summons is required for each witness whose attendance at Court is sought.

If the Court is to arrange service on the witness the party seeking the Witness Summons should also send to the Court an amount of money to be paid or offered to the witness.

Generally it is not necessary to obtain the permission from the Court to issue a Witness Summons.

When is permission of the Court required?

The Court’s permission is required to issue a Witness Summons if the trial at which the witness is required to give evidence is in less than 7 days time. Permission is also required if a party wants a witness to attend Court for a hearing which is not a trial.

If permission of the Court is required this should be obtained by making a formal application to the Court. Generally applications of this nature are dealt with by a judge on paper and without the need for a hearing.

How much money should be paid or offered to a Witness?

The party seeking the Witness Summons should pay or offer to pay a reasonable sum to cover the witness’ travel to and from the Court together with a sum representing compensation for the witness’ loss of time suffered as a result of him having to attend the Court.

The amount that should be paid or offered will vary depending upon the distance of the Court, the length of the witness’ attendance at Court and what losses a particular witness is likely to suffer. Deciding on an amount can be difficult as on one hand a witness who is left out of pocket may be a less cooperative witness. On the other hand, however, if the amount is over generous there is a risk that you could be seen to be trying to buy the witness’ evidence.

Travel expenses

If the witness is likely to drive to Court it will generally be appropriate to offer him an amount in respect of mileage plus the cost of parking. If he is not likely to drive to Court the amount offered should reflect the cost of using public transport. If the witness’ attendance at Court is likely to be for more than one day then this should be taken into account.

Loss of time

The loss suffered by a witness as a result of him attending Court will depend upon what the witness does for a living. If he is self employed his losses may be quite high, although difficult to quantify. If he is an employee it is unlikely that he will be paid by his employer for taking time out of work and the amount offered should reflect this.

What happens after I have obtained a Witness Summons?

Once a Witness Summons has been issued by the Court it needs to be served upon the witness.  

Normally a Witness Summons must be served upon the witness at least 7 days before the date upon which their attendance at Court is required. The Court can, however, direct that it is still binding upon the witness if it is served less than 7 days before the date upon which the witness’ attendance at Court is required.  

Normally a Witness Summons is served upon the witness by the Court. The party applying for the Witness Summons can, however, serve it themselves if they ask the Court to return it to them for service when the Witness Summons is sent to the Court for issuing. Such a request must be in writing.

What if the witness fails to attend Court?

If the Witness Summons has been properly served and the witness has been offered money for attending Court if the case is proceeding in the County Court and he fails to attend he will be liable to a pay a fine. If it is a High Court case and he fails to attend he will be treated as being in contempt of Court and may be fined or imprisoned. A witness who fails to attend Court may also be liable to pay any wasted costs resulting from his failure to attend. A Witness Summons warns the witness of the likely consequences of failing to attend Court.

When should a Witness Summons be used?

Quite often a witness may be happy to attend Court to give evidence but is likely to encounter difficulties in getting time off work. If served with a Witness Summons his employer will have to give him time off work and Witness Summonses are commonly used for this reason. 

Sometimes a witness may be willing to co-operate but is unable to do so without a Court Order, for example if the witness is not permitted to disclose information for data protection or confidentiality reasons without a Court Order.

If the evidence of a particular witness is very important to your case and there is a possibility that the witness will not attend Court it is often sensible to serve a Witness Summons on him. 

If, however, a witness has made it clear that he does not want to give evidence in a case a Witness Summons should be applied for with caution. This is particularly the case if you do not know what the witness’ evidence is likely to be as his evidence may end up helping out your opponent in the case.

Is there anything else I need to consider?

If at the stage of the proceedings when Witness Statements are required to be exchanged you are unable to obtain a Witness Statement from a witness it will be necessary to serve a Witness Summary instead. A Witness Summary is a summary of the evidence the witness is likely to be able to give, if that is known. If the evidence of the witness is not known the Witness Summary should set out the matters upon which you intend o question him about.

An application to the Court for permission to serve a Witness Summary is required and, therefore, the application should be made well before Witness Statements are due to be exchanged.