PRACTICE DIRECTION 34A – DEPOSITIONS AND COURT ATTENDANCE BY WITNESSES

This Practice Direction supplements CPR Part 34

WITNESS SUMMONSES

Issue of witness summons

1.1  A witness summons may require a witness to:

(1) attend court to give evidence,

(2) produce documents to the court, or

(3) both,

on either a date fixed for the hearing or such date as the court may direct1.

1.2  Two copies of the witness summons2 should be filed with the court for sealing, one of which will be retained on the court file.

1.3  A mistake in the name or address of a person named in a witness summons may be corrected if the summons has not been served.

1.4  The corrected summons must be re-sealed by the court and marked ‘Amended and Re-Sealed’.

Witness summons issued in aid of an inferior court or tribunal

2.1  A witness summons may be issued in the High Court or the County Court in aid of a court or tribunal which does not have the power to issue a witness summons in relation to the proceedings before it3.

2.2  A witness summons referred to in paragraph 2.1 may be set aside by the court which issued it4.

2.3  An application to set aside a witness summons referred to in paragraph 2.1 will be heard:

(1) in the High Court by a Master at the Royal Courts of Justice or by a District Judge in a District Registry, and

(2) in the County Court by a District Judge.

2.4  Unless the court otherwise directs, the applicant must give at least 2 days’ notice to the party who issued the witness summons of the application, which will normally be dealt with at a hearing.

Travelling expenses and compensation for loss of time

3.1  When a witness is served with a witness summons he must be offered a sum to cover his travelling expenses to and from the court and compensation for his loss of time5.

3.2  If the witness summons is to be served by the court, the party issuing the summons must deposit with the court:

(1) a sum sufficient to pay for the witness’s expenses in travelling to the court and in returning to his home or place of work, and

(2) a sum in respect of the period during which earnings or benefit are lost, or such lesser sum as it may be proved that the witness will lose as a result of his attendance at court in answer to the witness summons.

3.3  The sum referred to in 3.2(2) is to be based on the sums payable to witnesses attending the Crown Court6.

3.4  Where the party issuing the witness summons wishes to serve it himself7, he must:

(1) notify the court in writing that he wishes to do so, and

(2) at the time of service offer the witness the sums mentioned in paragraph 3.2 above.

DEPOSITIONS

To be taken in England and Wales for use as evidence in proceedings in courts in England and Wales

4.1  A party may apply for an order for a person to be examined on oath before:

(1) a judge,

(2) an examiner of the court, or

(3) such other person as the court may appoint8.

4.2  The party who obtains an order for the examination of a deponent9 before an examiner of the court10 must:

(1) apply to the Foreign Process Section of the Masters’ Secretary’s Department at the Royal Courts of Justice for the allocation of an examiner,

(2) when allocated, provide the examiner with copies of all documents in the proceedings necessary to inform the examiner of the issues, and

(3) pay the deponent a sum to cover his travelling expenses to and from the examination and compensation for his loss of time11.

4.3  In ensuring that the deponent’s evidence is recorded in full, the court or the examiner may permit it to be recorded on audiotape or videotape, but the deposition12 must always be recorded in writing by him or by a competent shorthand writer or stenographer.

4.4  If the deposition is not recorded word for word, it must contain, as nearly as may be, the statement of the deponent; the examiner may record word for word any particular questions and answers which appear to him to have special importance.

4.5  If a deponent objects to answering any question or where any objection is taken to any question, the examiner must:

(1) record in the deposition or a document attached to it –

(a) the question,

(b) the nature of and grounds for the objection, and

(c) any answer given, and

(2) give his opinion as to the validity of the objection and must record it in the deposition or a document attached to it.

The court will decide as to the validity of the objection and any question of costs arising from it.

4.6  Documents and exhibits must:

(1) have an identifying number or letter marked on them by the examiner, and

(2) be preserved by the party or his legal representative13 who obtained the order for the examination, or as the court or the examiner may direct.

4.7  The examiner may put any question to the deponent as to:

(1) the meaning of any of his answers, or

(2) any matter arising in the course of the examination.

4.8  Where a deponent:

(1) fails to attend the examination, or

(2) refuses to:

(a) be sworn, or

(b) answer any lawful question, or

(c) produce any document,

the examiner will sign a certificate14 of such failure or refusal and may include in his certificate any comment as to the conduct of the deponent or of any person attending the examination.

4.9  The party who obtained the order for the examination must file the certificate with the court and may apply for an order that the deponent attend for examination or as may be15. The application may be made without notice16.

4.10  The court will make such order on the application as it thinks fit including an order for the deponent to pay any costs resulting from his failure or refusal17.

4.11  A deponent who wilfully refuses to obey an order made against him under Part 34 may be proceeded against for contempt of court.

4.12  A deposition must:

(1) be signed by the examiner,

(2) have any amendments to it initialled by the examiner and the deponent,

(3) be endorsed by the examiner with –

(a) a statement of the time occupied by the examination, and

(b) a record of any refusal by the deponent to sign the deposition and of his reasons for not doing so, and

(4) be sent by the examiner to the court where the proceedings are taking place for filing on the court file.

4.13  Rule 34.14 deals with the fees and expenses of an examiner.

Depositions to be taken abroad for use as evidence in proceedings before courts in England and Wales (where the Taking of Evidence Regulation does not apply)

5.1  Where a party wishes to take a deposition from a person outside the jurisdiction, the High Court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is18.

5.2  An application for an order referred to in paragraph 5.1 should be made by application notice in accordance with Part 23.

5.3  The documents which a party applying for an order for the issue of a letter of request must file with his application notice are set out in rule 34.13(6). They are as follows:

(1) a draft letter of request in the form set out in Annex A to this practice direction,

(2) a statement of the issues relevant to the proceedings,

(3) a list of questions or the subject matter of questions to be put to the proposed deponent,

(4) a translation of the documents in (1), (2) and (3) above, unless the proposed deponent is in a country of which English is an official language, and

(5) an undertaking to be responsible for the expenses of the Secretary of State

In addition to the documents listed above the party applying for the order must file a draft order.

5.4  The above documents should be filed with the Masters’ Secretary in Room E214, Royal Courts of Justice, Strand, London WC2A 2LL.

5.5  The application will be dealt with by the Senior Master of the Queen’s Bench Division of the High Court who will, if appropriate, sign the letter of request.

5.6  Attention is drawn to the provisions of rule 23.10 (application to vary or discharge an order made without notice).

5.7  If parties are in doubt as to whether a translation under paragraph 5.3(4) above is required, they should seek guidance from the Foreign Process Section of the Masters’ Secretary’s Department.

5.8  A special examiner appointed under rule 34.13(4) may be the British Consul or the Consul-General or his deputy in the country where the evidence is to be taken if:

(1) there is in respect of that country a Civil Procedure Convention providing for the taking of evidence in that country for the assistance of proceedings in the High Court or other court in this country, or

(2) with the consent of the Secretary of State.

5.9  The provisions of paragraphs 4.1 to 4.12 above apply to the depositions referred to in this paragraph.

Depositions to be taken in England and Wales for use as evidence in proceedings before courts abroad pursuant to letters of request (where the Taking of Evidence Regulation does not apply)

6.1  Section II of Part 34 relating to obtaining evidence for foreign courts applies to letters of request and should be read in conjunction with this part of the practice direction.

6.2  The Evidence (Proceedings in Other Jurisdictions) Act 1975 applies to these depositions.

6.3  The written evidence supporting an application under rule 34.17 (which should be made by application notice – see Part 23) must include or exhibit –

(1) a statement of the issues relevant to the proceedings;

(2) a list of questions or the subject matter of questions to be put to the proposed deponent;

(3) a draft order; and

(4) a translation of the documents in (1) and (2) into English, if necessary.

6.4

(1) The Senior Master will send to the Treasury Solicitor any request –

(a) forwarded by the Secretary of State with a recommendation that effect should be given to the request without requiring an application to be made; or

(b) received by him in pursuance of a Civil Procedure Convention providing for the taking of evidence of any person in England and Wales to assist a court or tribunal in a foreign country where no person is named in the document as the applicant.

(2) In relation to such a request, the Treasury Solicitor may, with the consent of the Treasury –

(a) apply for an order under the 1975 Act; and

(b) take such other steps as are necessary to give effect to the request.

6.5  The order for the deponent to attend and be examined together with the evidence upon which the order was made must be served on the deponent.

6.6  Attention is drawn to the provisions of rule 23.10 (application to vary or discharge an order made without notice).

6.7  Arrangements for the examination to take place at a specified time and place before an examiner of the court or such other person as the court may appoint shall be made by the applicant for the order and approved by the Senior Master.

6.8  The provisions of paragraph 4.2 to 4.12 apply to the depositions referred to in this paragraph, except that the examiner must send the deposition to the Senior Master.

(For further information about evidence see Part 32 and Practice Direction 32.)

TAKING OF EVIDENCE BETWEEN EU MEMBER STATES

Taking of Evidence Regulation

7.1  Where evidence is to be taken –

(a) from a person in another Member State of the European Union for use as evidence in proceedings before courts in England and Wales; or

(b) from a person in England and Wales for use as evidence in proceedings before a court in another Member State,

Council Regulation (EC) No 1206/2001 of 28 May 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters (‘the Taking of Evidence Regulation’) applies.

7.2  The Taking of Evidence Regulation is annexed to this practice direction as Annex B.

7.3  The Taking of Evidence Regulation does not apply to Denmark. In relation to Denmark, therefore, rule 34.13 and Section II of Part 34 will continue to apply.

(Article 21(1) of the Taking of Evidence Regulation provides that the Regulation prevails over other provisions contained in bilateral or multilateral agreements or arrangements concluded by the Member States and in particular the Hague Convention of 1 March 1954 on Civil Procedure and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters)

Originally published in the official languages of the European Community in the Official Journal of the European Communities by the Office for Official Publications of the European Communities.

Meaning of ‘designated court’

8.1  In accordance with the Taking of Evidence Regulation, each Regulation State has prepared a list of courts competent to take evidence in accordance with the Regulation indicating the territorial and, where appropriate, special jurisdiction of those courts.

8.2  Where Part 34, Section III refers to a ‘designated court’ in relation to another Regulation State, the reference is to the court, referred to in the list of competent courts of that State, which is appropriate to the application in hand.

8.3  Where the reference is to the ‘designated court’ in England and Wales, the reference is to the appropriate competent court in the jurisdiction. The designated courts for England and Wales are listed in Annex C to this practice direction.

Central Body

9.1  The Taking of Evidence Regulation stipulates that each Regulation State must nominate a Central Body responsible for –

(a) supplying information to courts;

(b) seeking solutions to any difficulties which may arise in respect of a request; and

(c) forwarding, in exceptional cases, at the request of a requesting court, a request to the competent court.

9.2  The United Kingdom has nominated the Senior Master, Queen's Bench Division, to be the Central Body for England and Wales.

9.3  The Senior Master, as Central Body, has been designated responsible for taking decisions on requests pursuant to Article 17 of the Regulation. Article 17 allows a court to submit a request to the Central Body or a designated competent authority in another Regulation State to take evidence directly in that State.

Evidence to be taken in another Regulation State for use in England and Wales

10.1  Where a person wishes to take a deposition from a person in another Regulation State, the court where the proceedings are taking place may order the issue of a request to the designated court in the Regulation State ( Rule 34.23(2)). The form of request is prescribed as Form A in the Taking of Evidence Regulation.

10.2  An application to the court for an order under rule 34.23(2) should be made by application notice in accordance with Part 23.

10.3  Rule 34.23(3) provides that the party applying for the order must file a draft form of request in the prescribed form. Where completion of the form requires attachments or documents to accompany the form, these must also be filed.

10.4  If the court grants an order under rule 34.23 (2), it will send the form of request directly to the designated court.

10.5  Where the taking of evidence requires the use of an expert, the designated court may require a deposit in advance towards the costs of that expert. The party who obtained the order is responsible for the payment of any such deposit which should be deposited with the court for onward transmission. Under the provisions of the Taking of Evidence Regulation, the designated court is not required to execute the request until such payment is received.

10.6  Article 17 permits the court where proceedings are taking place to take evidence directly from a deponent in another Regulation State if the conditions of the article are satisfied. Direct taking of evidence can only take place if evidence is given voluntarily without the need for coercive measures. Rule 34.23(5) provides for the court to make an order for the submission of a request to take evidence directly. The form of request is Form I annexed to the Taking of Evidence Regulation and rule 34.23(6) makes provision for a draft of this form to be filed by the party seeking the order. An application for an order under rule 34.23(5) should be by application notice in accordance with Part 23.

10.7  Attention is drawn to the provisions of rule 23.10 (application to vary or discharge an order made without notice).

Evidence to be taken in England and Wales for use in another Regulation State

11.1  Where a designated court in England and Wales receives a request to take evidence from a court in a Regulation State, the court will send the request to the Treasury Solicitor.

11.2  On receipt of the request, the Treasury Solicitor may, with the consent of the Treasury, apply for an order under rule 34.24.

11.3  An application to the court for an order must be accompanied by the Form of request to take evidence and any accompanying documents, translated if required under paragraph 11.4.

11.4  The United Kingdom has indicated that, in addition to English, it will accept French as a language in which documents may be submitted. Where the form or request and any accompanying documents are received in French they will be translated into English by the Treasury Solicitor.

11.5  The order for the deponent to attend and be examined together with the evidence on which the order was made must be served on the deponent.

11.6  Arrangements for the examination to take place at a specified time and place shall be made by the Treasury Solicitor and approved by the court.

11.7  The court shall send details of the arrangements for the examination to such of

(a) the parties and, if any, their representatives; or

(b) the representatives of the foreign court,

who have indicated, in accordance with the Taking of Evidence Regulation, that they wish to be present at the examination.

11.8  The provisions of paragraph 4.3 to 4.12 apply to the depositions referred to in this paragraph.

Annex A Draft Letter of Request (where the Taking of Evidence Regulation does not apply)

To the Competent Judicial Authority of                        in the                        of                        

I [name] Senior Master of the Queen’s Bench Division of the Senior Courts of England and Wales respectfully request the assistance of your court with regard to the following matters.

1

A claim is now pending in the            Division of the High Court of Justice in England and Wales entitled as follows [set out full title and claim number] in which [name] of [address] is the claimant and [name] of [address] is the defendant.

2

The names and addresses of the representatives or agents of [set out names and addresses of representatives of the parties].

3

The claim by the claimant is for:-

(a) [set out the nature of the claim]

(b) [the relief sought, and]

(c) [a summary of the facts.]

4

It is necessary for the purposes of justice and for the due determination of the matters in dispute between the parties that you cause the following witnesses, who are resident within your jurisdiction, to be examined. The names and addresses of the witnesses are as follows:

5

The witnesses should be examined on oath or if that is not possible within your laws or is impossible of performance by reason of the internal practice and procedure of your court or by reason of practical difficulties, they should be examined in accordance with whatever procedure your laws provide for in these matters.

6

Either/

The witnesses should be examined in accordance with the list of questions annexed hereto.

Or/

The witnesses should be examined regarding [set out full details of evidence sought]

N.B. Where the witness is required to produce documents, these should be clearly identified.

7

I would ask that you cause me, or the agents of the parties (if appointed), to be informed of the date and place where the examination is to take place.

8

Finally, I request that you will cause the evidence of the said witnesses to be reduced into writing and all documents produced on such examinations to be duly marked for identification and that you will further be pleased to authenticate such examinations by the seal of your court or in such other way as is in accordance with your procedure and return the written evidence and documents produced to me addressed as follows:

Senior Master of the Queen’s Bench Division
Royal Courts of Justice
Strand
London WC2A 2LL
England

Annex B Council Regulation (EC) No 1206/2001

Annex C

Designated courts in England and Wales under the Taking of Evidence Regulation
(see paragraph 8 above)
Area Designated court
London and South Eastern Circuit Royal Courts of Justice (Queen's Bench Division)
Midland Circuit Birmingham Civil Justice Centre
Western Circuit the County Court at Bristol
Wales Circuit Cardiff Civil Justice Centre
Northern Circuit the County Court at Manchester
North Eastern Circuit the County Court at Leeds

Footnotes

1. Rule 34.2(4). Back to text
2. In practice form N20. Back to text
3. Rule 34.4(1). Back to text
4. Rule 34.4(2). Back to text
5. Rule 34.7. Back to text
6. Fixed pursuant to the Prosecution of Offences Act 1985 and the Costs in Criminal Cases General Regulations 1986. Back to text
7. Rule 34.6(1). Back to text
8. Rule 34.8(3). Back to text
9. See rule 34.8(2) for explanation of `deponent' and `deposition'. Back to text
10. For the appointment of examiners of the court see rule 34.15. Back to text
11. Rule 34.8(6). Back to text
12. See rule 34.8(2) for explanation of `deponent' and `deposition'. Back to text
13. For the definition of legal representative see rule 2.3. Back to text
14. Rule 34.10. Back to text
15. Rule 34.10(2) and (3). Back to text
16. Rule 34.10(3).Back to text
17. Rule 34.10(4).Back to text
18. Rule 34.13(1).Back to text
Ministry of Justice

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