Where a party wishes to rely on a witness statement at trial, Civil Procedure Rule (CPR) 32.5 provides that they must call the witness to give oral evidence unless the court orders otherwise, or notice is provided of the intention to rely on the statement as hearsay evidence.
One of the issues that may arise during litigation is a witness failing to turn up at court to give evidence.
Applying for a witness summons
If it is anticipated that a witness may be unwilling to attend, an application for a witness summons can be made to court in advance to require them to do so. CPR 34 gives the court the power to order a witness to attend court to give evidence on a particular date.
A witness summons will be binding if served at least 7 days before the date when the witness is required to attend court (unless the court directs that a shorter period for service should apply). The party applying for the witness summons must offer the witness a sum to cover travel expenses to and from court and compensation for loss of time. In the event that a witness does not attend court they can face severe penalties, including being found to be in contempt of court, which could result in a fine or imprisonment.
A party should, however, be aware of the risks involved in forcing someone to turn up to court if they do not want to give evidence in a case. The party may not know what the witness will say under cross-examination, and it may not be helpful to their case, particularly where a witness is resentful about being forced to attend.
Applying for permission to admit a statement as hearsay evidence
If there is insufficient warning of a witness’ failure to attend, and it is not possible to arrange their attendance at another time or to adjourn the trial, an alternative option may be to make a late application for permission to adduce their witness statement as hearsay evidence. This is a discretionary remedy and the reason for the notice being served late will impact upon the court’s decision.
In the case of EC Medica Group UK Ltd & Ors v Dearnley-Davison & Ors [2018] the failure of the claimant’s witness to attend court due to a finger injury was not considered to be an adequate reason for non-attendance. A request to admit the witness evidence as hearsay was refused. Relevant factors included the fact that, no explanation was given as to why the injury should prevent the witness from attending, the hearsay notice was not served until the day before the trial on 4 June 2018, despite the injury having occurred in April, and the witness having been signed off work as a result in May. In addition, the evidence the witness was due to give related to an issue that was vigorously disputed between the parties, so if hearsay evidence was being proposed, it was all the more important for proper notice to be given due to the potential for prejudice to be caused. This was later noted in James Waste Management LLP v Essex County Council [2022] to be an extreme case, and what can be derived from the decision is that there may be circumstances where a court would see fit not to permit hearsay evidence to be relied on in light of a late hearsay notice.
If the evidence is admitted, it would be for the court to determine what weight to give to such evidence in circumstances where the other party is unable to cross-examine the witness.
Practical steps
While it is not possible to anticipate every issue that may arise in proceedings, there are practical steps that can be taken to ensure that things go as smoothly as possible such as:
- choosing witnesses carefully, taking into account the importance of their evidence, reliability, willingness to provide evidence and attend court, and whether their evidence could be dealt with by another witness if there are concerns about their reliability;
- blocking out the trial window with the witness as soon as possible to avoid issues with availability to attend court;
- agreeing a timetable as early as possible so that a witness has plenty of notice of the specific date when they are required to attend court; and
- recommending that a witness attend a hearing at their local court so that they become familiar with a court setting and hearing procedure so that the prospect of attending court is less daunting to them.
The appropriate measures to take will, of course, vary on a case-by-case basis and from witness to witness. However, it is useful to consider early on what, if any, measures would be appropriate to adopt to avoid the situation in which a witness fails to turn up to court and whether additional steps are required to ensure their attendance.
About the author
Chantelle is an Associate in the Dispute Resolution Team. Her experience covers a wide range of disputes, with a particular focus on civil fraud, commercial and contract, shareholder and director disputes.
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