Part 33 – Court Attendance by Witnesses and Depositions

Scope of this Part

33.1

1. This Part provides –
   1. for a party to obtain evidence prior to a hearing; and
   2. for the circumstances in which a person may be required to attend court to give evidence or to produce a document.
2. In this Part, reference to a hearing includes a reference to the trial.

Witness summonses

33.2

1. A witness summons is a document issued by the court requiring a witness to attend court –
   1. to give evidence; or
   2. to produce documents to the court.
2. A witness summons must be in Form 12.
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 on –
   1. the date fixed for the trial or the hearing of any application in the proceedings; or
   2. any other date the court may direct.

Issue of witness summons

33.3

1. A witness summons is issued on the date entered on the summons by the court office.
2. A party must obtain permission from the court when that party wishes to have –
   1. a witness summons issued less than 21 days before the date of the hearing; or
   2. 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 the hearing of any application.
3. An application for permission under paragraph (2) may be without notice but must be supported by evidence on affidavit.
4. The court may set aside or vary a witness summons.

Witness summons in aid of inferior court or tribunal

33.4

1. The court may issue a witness summons in aid of an inferior court or of a tribunal.
2. The court may set aside a witness summons issued under this rule.
3. In this rule – “inferior court or tribunal” means any court or tribunal which does not have power to issue a witness summons in relation to proceedings before it.

Time for serving witness summons

33.5

1. The general rule is that a witness summons is binding only if it is served at least 14 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 14 days before the date on which the witness is required to attend before the court or tribunal.
3. An application under paragraph (2) may be made without notice but must be supported by evidence on affidavit.
4. A witness summons which –
   1. is served in accordance with this rule; and
   2. 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.

Compensation for loss of time

33.6

1. At the time of service of a witness summons the witness must be offered or paid –
   1. a sum reasonably sufficient to cover his or her subsistence and expenses in travelling to and from the court; and
   2. such sum by way of compensation for loss of time as may be specified in a practice direction.

Evidence by deposition before examiner

33.7

1. A party may apply for an order for a person to be examined before the trial or the hearing of any application in the proceedings.
2. In this rule –
   • “deponent” means a person from whom evidence is to be obtained following any order under this rule, and “deposition” means the evidence given by the deponent.
3. An order under this rule shall be for a deponent to be examined on oath before –
   1. a judge;
   2. a legal practitioner who has practised for at least 5 years;
   3. a magistrate;
   4. a master;
   5. a registrar; or
   6. the Chief Registrar.
4. A person listed in paragraph (3) is referred to as an “examiner”.
5. The order must state –
   1. the date, time and place of the examination; and
   2. the name of the examiner.
6. The order may require the production of any document which the court considers may be necessary for the purposes of the examination.
7. Rule 2.7 applies to an examination under this rule.
8. At the time of service of the order the deponent must be offered or paid travelling expenses and compensation for loss of time in accordance with rule 33.6.
9. An application may be made by any party whether or not that party would otherwise call the witness.
10. If the application is made by the party who would call the witness to give evidence, the court may order that party to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
    • Part 29 contains general rules about witness statements and witness summaries.

Conduct of examination

33.8

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, with the consent of the parties, conduct the examination of a person not named in the order for examination.
3. The examiner may conduct the examination in private if he or she considers it appropriate to do so.
4. The examiner must ensure that a full record is taken of the evidence given by the witness.
5. If any person being examined objects to answer any question put to him or her, the ground of the objection and the answer to any such question must be set out in the deposition or in a statement annexed to the deposition.
6. The examiner must send the original deposition to the court office and a copy of the deposition to–
   1. every party to the proceedings; and
   2. the deponent.
7. If the witness or any legal practitioner present at the hearing is of the opinion that the deposition does not accurately represent the evidence, he or she may –
   1. endorse on the copy deposition the corrections which in his or her opinion should be made;
   2. file the endorsed copy deposition; and
   3. serve a copy of it on all other parties.

Evidence without examiner being present

33.9

1. With the consent of the parties, the court may order that the evidence of a witness be taken as if before an examiner, but without an examiner being appointed or present.
2. Where such an order is made then, subject to any directions that may be contained in the order –
   1. a legal practitioner for any party may administer the oath to a witness;
   2. any person transcribing evidence given need not be sworn but must certify as correct the transcript of the evidence and deliver it to the legal practitioner for the party whose witness was examined;
   3. the legal practitioner for the party whose witness was examined must file the original transcript and deliver a true copy to all other parties and to the witness who was examined;
   4. the party whose witness is to be examined must provide a means of recording the evidence of the witness; and
   5. if the witness or any legal practitioner present at the hearing is of the opinion that the transcript does not accurately represent any evidence given, he or she may –
      1. endorse on the copy transcript the corrections which in his or her opinion should be made;
      2. file the endorsed copy transcript; and
      3. serve a copy of it on all other parties.

Enforcing attendance of witness

33.10

1. If a person served with a witness summons to attend before an examiner –
   1. fails to attend;
   2. refuses to answer any lawful question or produce any document at the examination; or
   3. refuses to be sworn or to affirm for the purpose of the examination; the party requiring the deposition may file a certificate signed by the examiner of such failure or refusal.
2. On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring the person to attend, to be sworn, to affirm 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. Any order made by the court must be served personally on the person served with the witness summons and be endorsed with a notice in the first form given in rule 53.3(b).
5.  The court may order the person against whom an order is made under this rule to pay any costs resulting from the –
   1. failure to attend before a referee;
   2. refusal to answer any lawful question or produce any document at the inquiry; or
   3. refusal to be sworn or to affirm for the purpose of the inquiry.
      • Part 53 deals with the procedure relating to committal for contempt of court.

Special report

33.11

1. The examiner may make a special report to the court with regard to the –
   1. absence of any person; or
   2. conduct of any person present; when the deposition was taken.

Fees and expenses of examiner

33.12

1. On appointing an examiner the court must fix the fee to be paid to the examiner for carrying out the examination.
2. If an examination is carried out by a person other than a legal practitioner, the fee must be paid into the court office.
3. The party who obtained the order must also pay the fee and all reasonable travelling and other expenses including charges for a room (other than the examiner’s own chambers or office) where the exami­nation takes place.
4. Notwithstanding paragraphs (1) and (3), the court may ultimately order any party to bear the costs of the examination.

Order for payment of examiner’s fees

33.13

1. The examiner may report to the court the fact that any fees or expenses due to him or her have not been paid and the court may make an order that the party who obtained the order for the examination should pay such fees and expenses.
2. An order under paragraph (1) may be enforced as a money judgment.

Use of deposition at hearing                                                                   

33.14

1. A deposition ordered under rule 33.7 or 33.9 may be given in evidence at the trial unless the court orders otherwise.
2. A party intending to put in evidence a deposition at a hearing must serve notice of such intention on every other party at least 21 days before the day fixed for the hearing.
3. The court may require a deponent to attend the hearing and give oral evidence.

Where person to be examined is out of the jurisdiction – letter of request

33.15

1. If a party wishes to take a deposition from a party outside the jurisdic­tion, the court may direct 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. If the government of the country to which the letter is sent allows a person appointed by the court to examine a person in that country, the court may make an order appointing an examiner for that purpose.
4. 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.
5. If the court makes an order for the issue of a letter of request, the party who sought the order must file –
   1. the following documents and, except where paragraph (6) ap­plies, a translation of them –
      1. a draft letter of request
      2. a list of questions or the subject matter of questions to be put to the person to be examined; and
      3. a statement of the issues relevant to the proceedings; and
   2. an undertaking to be responsible for the expenses of the minister with responsibility for foreign affairs in relation to the request.
6. There is no need to file a translation if English is one of the official languages of the country where the examination is to take place.

Early appointment to produce documents       

33.16

1. The court may permit a party to issue a witness summons requiring any person to attend at a date, time or place specified in the summons prior to the date of the trial for the purpose of producing one or more documents.
2. The only type of document that a summons under this rule can require a person to produce is a   document which that person could be com­pelled to produce at the trial.