PRACTICE DIRECTION 24A – WITNESSES, DEPOSITIONS AND TAKING OF EVIDENCE IN MEMBER STATES OF THE EUROPEAN UNION
PRACTICE DIRECTION 24A – WITNESSES, DEPOSITIONS AND TAKING OF EVIDENCE IN MEMBER STATES OF THE EUROPEAN UNIONThis Practice Direction supplements FPR Part 24
|Issue of witness summons||Para. 1.1|
|Travelling expenses and compensation for loss of time||Para. 3.1|
|Depositions to be taken in England and Wales for use as evidence in proceedings in courts in England and Wales||Para. 4.1|
|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)||Para. 5.1|
|Taking of Evidence between EU Member States|
|Taking of Evidence Regulation||Para. 6.1|
|Meaning of ‘designated court’||Para. 7.1|
|Central Body||Para. 8.1|
|Evidence to be taken in another Regulation State for use in England and Wales||Para. 9.1|
Issue of witness summons
A witness summons may require a witness to –
(a) attend court to give evidence;
(b) produce documents to the court; or
on either a date fixed for the hearing or such date as the court may direct (see rule 24.2).
(In relation to cases to which the Mediation Directive applies, rules 35.3 and 35.4 contain rules in relation to mediation evidence)
Two copies of the witness summons should be filed with the court for sealing, one of which will be retained on the court file.
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.
The corrected summons must be re-sealed by the court and marked ‘Amended and Re-Sealed’.
Travelling expenses and compensation for loss of time
When a witness is served with a witness summons the witness must be offered a sum to cover travelling expenses to and from the court and compensation for loss of time (see rule 24.6).
If the witness summons is to be served by the court, the party issuing the summons must deposit with the court –
(a) a sum sufficient to pay for the witness's expenses in travelling to the court and in returning to his or her home or place of work; and
(b) 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 attendance at court in answer to the witness summons.
The sum referred to in paragraph 3.2(b) is to be based on the sums payable to witnesses attending the Crown Court (fixed pursuant to the Prosecution of Offences Act 1985 and Costs in Criminal Cases (General) Regulations 1986).
Depositions to be taken in England and Wales for use as evidence in proceedings in courts in England and Wales
A party may apply for an order for a person to be examined on oath before –
(a) a judge;
(b) an examiner of the court; or
(c) such other person as the court may appoint (see rule 24.7(3)).
(This is subject to rules about mediation evidence in cases to which the Mediation Directive applies :see rules 35.3 and 35.4)
The party who obtains an order for the examination of a deponent (see rule 24.7(2)) before an examiner of the court must –
(a) apply to the Foreign Process Section of the Masters' Secretary's Department at the Royal Courts of Justice for the allocation of an examiner;
(b) when allocated, provide the examiner with copies of all documents in the proceedings necessary to inform the examiner of the issues; and
(c) pay the deponent a sum to cover travelling expenses to and from the examination and compensation for loss of time (see rule 24.7(6)).
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 deposition (see rule 24.7(2)) must always be recorded in writing by the examiner or by a competent shorthand writer or stenographer.
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 have special importance.
If a deponent objects to answering any question or where any objection is taken to any question, the examiner must –
(a) record in the deposition or a document attached to it –
(i) the question;
(ii) the nature of and grounds for the objection;
(iii) any answer given; and
(b) give the examiner's 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.
Documents and exhibits must –
(a) have an identifying number or letter marked on them by the examiner; and
(b) be preserved by the party or legal representative (see rule 2.3) who obtained the order for the examination, or as the court or the examiner may direct.
The examiner may put any question to the deponent as to –
(a) the meaning of any of the deponent's answers; or
(b) any matter arising in the course of the examination.
Where a deponent –
(a) fails to attend the examination; or
the examiner will sign a certificate (see rule 24.9) of such failure or refusal and may include in the certificate any comment as to the conduct of the deponent or of any person attending the examination.
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 produce any document, as the case may be (see rule 24.9(2) and (3)). The application may be made without notice.
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 the failure or refusal (see rule 24.9(4)).
A deponent who wilfully refuses to obey an order of the High Court or the made under Part 24 may be proceeded against for contempt of court.
A deposition must –
(a) be signed by the examiner;
(b) have any amendments to it initialled by the examiner and the deponent;
(c) be endorsed by the examiner with –
(i) a statement of the time occupied by the examination; and
(ii) a record of any refusal by the deponent to sign the deposition and of the deponent's reasons for not doing so; and
(d) be sent by the examiner to the court where the proceedings are taking place for filing on the court file.
Rule 24.13 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)
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 is (see rule 24.12).
(Rule 35.4(1)(f) deals with letters of request where the Mediation Directive applies)
An application for an order referred to in paragraph 5.1 should be made by application notice in accordance with Part 18 (Procedure for other applications in proceedings).
The documents which a party applying for an order for the issue of a letter of request must file with the application notice are set out in rule 24.12(7). They are as follows –
(a) a draft letter of request in the form set out in Annex A to this practice direction;
(b) a statement of the issues relevant to the proceedings;
(c) a list of questions or the subject matter of questions to be put to the proposed deponent;
(d) a translation of the documents in (a), (b) and (c), unless the proposed deponent is in a country of which English is an official language; and
(e) 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.
The above documents should be filed with the Masters' Secretary in Room E214, Royal Courts of Justice, Strand, London WC2A 2LL.
The application will be dealt with by the Senior Master of the Queen's Bench Division of the Senior Courts who will, if appropriate, sign the letter of request.
Attention is drawn to the provisions of rule 18.11 (Application to set aside or vary order made without notice).
If parties are in doubt as to whether a translation under paragraph 5.3(d) is required, they should seek guidance from the Foreign Process Section of the Masters' Secretary's Department.
A special examiner appointed under rule 24.12(5) may be the British Consul or the Consul-General or his deputy in the country where the evidence is to be taken if –
(a) 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
(b) the Secretary of State has consented.
The provisions of paragraphs 4.1 to 4.12 apply to the depositions referred to in this paragraph.
Taking of Evidence between EU Member States
Taking of Evidence Regulation
Where evidence is to be taken from a person in another Member State of the European Union for use as evidence in proceedings before courts in England and Wales 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.
The Taking of Evidence Regulation is annexed to this practice direction as Annex B.
The Taking of Evidence Regulation does not apply to Denmark. In relation to Denmark, therefore, rule 24.12 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.)
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’
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.
Where Chapter 2 of this Part 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.
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.
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.
The United Kingdom has nominated the Senior Master of the Queen's Bench Division, to be the Central Body for England and Wales.
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
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 24.16 (2)). The form of request is prescribed as Form A in the Taking of Evidence Regulation.
An application to the court for an order under rule 24.16(2) should be made by application notice in accordance with Part 18 (Procedure for other applications in proceedings).
Rule 24.16(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.
If the court grants an order under rule 24.16(2), it will send the form of request directly to the designated court.
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.
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 24.16(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 24.16(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 24.16(5) should be by application notice in accordance with Part 18.
Attention is drawn to the provisions of rule 18.11 (Application to set aside or vary order made without notice).
Annex ADraft Letter of Request (where the Taking of Evidence Regulation does not apply) (see paragraph 5.3(a) above)
To the Competent Judicial Authority of in the of
[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.
An application is now pending in the Division of the High Court of Justice in England and Wales entitled as follows [set out full title and case number] in which [name] of [address] is the applicant and [name] of [address] is the respondent.
The names and addresses of the representatives or agents of [set out names and addresses of representatives of the parties].
The application by the applicant is for –
(a) [set out the nature of the application]
(b) [the order sought] and
(c) [a summary of the facts.]
It is necessary for the purposes of justice 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:
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.
The witnesses should be examined in accordance with the list of questions annexed hereto.
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.
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.
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