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  A witness summons too far

What would you do if you received a witness summons for a period of 3 months?

This was the dilemma faced by one unfortunate expert who had in his hand a witness summons for the entire 3-month period of a prospective trial! Upon enquiry, the expert was told by his instructing solicitor that he had been encouraged by the court to adopt such an approach. This is a worrying development for all witnesses and it seems odd to us.

The standard witness summons application (Form N20) is drafted on the assumption that there is a fixed date. Both Civil Procedure Rule (CPR) 34.2 and its accompanying practice direction refer to requiring the witness to attend court to give evidence on ‘the date fixed for a hearing’ or ‘on such date as the court may direct’ – there is no mention there of 3-month trial windows. So either way, it seems there should be a specific date.

It has been usual for solicitors to wait until there is a fixed date for the hearing before issuing the witness summons, which would require attendance at court. If there are good reasons for a 3-month trial window in this particular case, then the solicitors are right to warn the expert. But can it be reasonable for this broad trial window to be made to override all other commitments the expert might have through the use of a witness summons for the whole 3 months?

Prior to the CPR, all that was generally required when fixing a trial date was to advise the court of a witness’s unavailability. The court would then proceed to fix a date for trial avoiding such dates. That might have been sufficient in the past, but was certainly not acceptable following the advent of the CPR. There is now a heavy burden on the parties to agree a date as early as possible if the conflicting commitments of their witnesses are to be accommodated. In Matthews -v- Tarmac Bricks & Tiles Ltd [1999] EWCA Civ 1574, Lord Woolf held that doctors who take on a case in the capacity of a medico-legal witness must be prepared to incorporate a degree of flexibility into their practices to meet the demands of court attendance whenever practicable. If a difficulty remains, parties should ensure that they are in a position to advise the court precisely why a witness is unavailable. This has become the leading case on availability of medico-legal witnesses and their presence at trial.

However, issuing a witness summons for a 3-month trial window must surely be a ‘degree of flexibility’ several orders of magnitude beyond what was intended. What can the expert do?

The expert in this case has a few options. He could take the view that he will simply file the witness summons and work closely with the laywers to ensure the trial dates are fixed, with full awareness of the expert’s existing (and developing) commitments. The existence of the summons will, though, ensure he is able to get out of any clash once the trial date is known by letting others know he is bound by a court order to be in court. Alternatively, the expert could take the view that the witness summons is ‘confusing’ and use his powers under CPR 35.14 to seek direction from the court. Finally, if the expert considers the witness summons to be unreasonable, or even oppressive, he can make an application to the issuing court to have it set aside.



Issue 106
November 2017

A witness summons too far
Handling a potential conflict of interest
Joint and several liability

Current issue
June 2018

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