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 they must be offered a sum to cover his travelling expenses to and from the court and compensation for their 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.
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 deponentbefore an examiner of the courtmust:
(1) apply to the Foreign Process Section at the Royal Courts of Justice at foreignprocess.rcj@justice.gov.uk for the allocation of an examiner; alternatively engage a person who satisfies the criteria in CPR 34.8 (3) (a) or (c);
(2) when allocated or engaged, 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 their travelling expenses to and from the examination and compensation for their loss of time
4.3 In ensuring that the deponent’s evidence is recorded in full, the court or the examiner may permit it to be recorded by audio or video, but the deposition12 must always be recorded in writing by them 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 them 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 their 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 their 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 their answers, or
(2) any matter arising in the course of the examination.
(1) fails to attend the examination, or
the examiner will sign a certificate14 of such failure or refusal and may include in their 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 their failure or refusal17.
4.11 A deponent who wilfully refuses to obey an order made against them under Part 34 may be proceeded against for contempt of court.
(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 their 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
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 their 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 (see Form PF78: Solicitor's Undertaking as to Expenses (rule 34.13(6)(b)) - GOV.UK (www.gov.uk)
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 Foreign Process Section of the Royal Courts of Justice, by post to “Foreign Process Section Royal Courts of Justice, Strand London WC2A 2LL” or left in person at the document drop box in the Main Hall of the Royal Courts of Justice marked for the attention of the Foreign Process Section.
5.5 The application will be dealt with by the Senior Master of the King’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.
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
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.
6.3 An application under rule 34.17 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 translation of the documents in (1) and (2) into English, if necessary; and
(4) where the application is made by an application notice under Part 23 in accordance with rule 34.17(2)(a), a draft order.”
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.
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.)
Annex A Draft Letter of Request (where the Taking of Evidence Regulation does not apply)
To the Competent Judicial Authority of [name of court] in [country]
I [name] Senior Master of the King’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 King’s Bench DivisionRoyal Courts of Justice
Strand
London WC2A 2LL
England
Dated
Signed
Senior Master of the King’s Bench Division
