Summoning a witness to court
Where either party to the proceedings believes a witness may not attend court voluntarily, they can apply for a witness summons to be issued (an order issued to a person outlining the specific date for their appearance in court).
A witness summons can take two forms:
- a witness summons requiring a person to give evidence; and
- a witness summons requiring a person to produce documents that are needed as evidence.
How do I obtain a witness summons?
To obtain a witness summons, you need to send two 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 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.
When is permission of the court required?
A party must obtain permission from the court where that party wishes to:
- have a summons issued less than seven days before the date of the final hearing;
- 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 final hearing; or
- have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the final hearing.
If permission of the court is required this should be obtained by making a formal application to the court. Applications of this nature are usually 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?
If you are seeking a witness summons, you should pay or offer to pay a reasonable sum to cover the witness’s travel to and from the court, together with a sum representing compensation for the witness’s loss of time suffered as a result of them having to attend the court.
The amount that should be paid or offered will vary depending upon the distance required to travel to the court, the length of the witness’ attendance at court and what losses a witness is likely to suffer. Deciding on an amount can be difficult: a witness who is left out of pocket may be a less cooperative witness, but if the amount is over-generous there is a risk you could be seen to be trying to buy the witness’ evidence.
If the witness is likely to drive to court it will generally be appropriate to offer them an amount in respect of mileage plus the cost of parking. If they are 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 them attending court will depend upon what the witness does for a living. If they are self employed the losses may be quite high, although difficult to quantify. If they are an employee it is unlikely that they will be paid by their 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 seven 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 seven days before the date upon which the witness’ attendance at court is required.
A witness summons is usually served upon the witness by the court. You can, however, serve it yourself if you ask the court to return it to you for service when the witness summons is sent to the court for issuing. Such a request must be in writing.
Enforcing attendance of witness
If someone served with a witness summons fails to attend or refuses to be sworn for the purpose of the hearing or to answer any lawful question or produce any document at the hearing, you must file a certificate of that person’s failure or refusal, signed by the judge.
On the certificate being filed, you 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. An application for an order under this rule may be made without notice.
What if the witness fails to attend court?
If a witness does not comply with a witness summons they will be liable, in county court proceedings, to a fine. In the High Court, disobedience of a witness summons is contempt of court and the witness may be fined or imprisoned. They may also be liable to pay any wasted costs that arise because of their non-compliance.
When should a witness summons be used?
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 their employer will have to give them 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 important to a case and there is a possibility that the witness will not attend court, it is often sensible to serve a witness summons on them.
If, however, a witness has made it clear that they do 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 their evidence may end up helping out your opponent in the case.
Objecting to an application
A witness can ask the court not to issue a witness summons you have asked for (or to withdraw it if it has already been issued) if:
- they do not have the documents or information you think they have;
- they do not think the documents or information would be material evidence;
- they think their duties or rights, or those of the person to whom the documents or information relate (including that person’s rights of confidentiality), outweigh the reasons for the application.
If any of these apply, they must contact the court office as soon as possible and explain their objection in writing and send copies to the court office and to you.