Dealing with a Reluctant Witness
What can you do when a crucial witness is unwilling or unable to provide a witness statement or attend court to give evidence in civil proceedings?
There are many reasons why a witness may be unwilling or unable to give evidence. They may be unavailable due to illness or overseas, or they may simply have disassociated themselves from one or more of the parties. However, it is possible to overcome this obstacle. The starting point is Rule 32.9 of the Civil Procedure Rules (CPR) which makes provision for a party to produce a witness summary in lieu of a statement.
Under, CPR 32.9 (2) a witness summary is defined as:
a) the evidence, if known, which would otherwise be included in a witness statement; or
b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness [in Court].
Additionally, a witness summary should also be in the same format and content as a witness statement, and served within the same timescale set for the service of witness statements.
However, a witness summary by itself is of limited use unless you have permission to rely upon it. You must therefore apply to the Court for permission to rely upon a witness summary, and permission must be sought before the deadline for the service of witness statements.
In the recent case of Otuo v The Watch Tower Bible and Tract Society of Britain (relief from Sanctions 2)  EWHC 346 (QB) Warby J issued guidance on the matters to be considered when applying for permission:
1. Whether the applicant is unable to obtain a witness statement;
2. The extent to which the witness is able to give relevant evidence;
3. The compatibility with the overriding objective of allowing evidence on the matters identified; and
4. The adequacy of the content of the summary by meeting the requirements of CPR 32.9 (2) (a) and whether it is fair in all the circumstances to confront the opponent with a summary of the kind in question.
Failure to apply for permission will result in the need for an application to the Court for relief from sanction, but provided the application is made early enough and the witness summary is served upon the opposing party in any event, it is less likely to be opposed.
Once you have obtained permission, if you are intended to call the witness to give oral evidence in Court, you will then need to formally summons the witness. However, there are inherent risks with summoning a witness. Reluctant witnesses are, by their very nature, disinclined to attend Court and will hence be regarded as a potentially ‘hostile’ witness, and they might also give different or previously undisclosed evidence to the Court which could be unfavourable to the party calling them. It is therefore a step which should only be taken after careful consideration of the benefit of the evidence they might give versus the risk of summonsing them.
If you are summonsing a witness sufficiently far ahead in the proceedings, you may not need permission from the Court to issue a witness summons (CPR 34.3 (2)). However, you are required to compensate the witness for their travelling expenses and loss of time for attending Court to give evidence, and such compensation must be made available to the witness at the same time that the summons is served. You also need to ensure that you serve the summons upon the witness at least 7 days before the date on which the witness is required to attend. If you don’t, it will not be binding and the witness will not be required to attend (although the Court can make provision for a shorter service period if circumstances deem it necessary).
From a practical standpoint, it is crucial to consider the availability of witness evidence early in the proceedings. This will enable you to properly assess the value of the evidence a witness will give, whether they will attend Court to give evidence, and importantly whether it will be necessary to apply for permission to serve a witness summary or a witness summons.
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You can find more information here too:
Otuo v The Watch Tower Bible and Tract Society of Britain : https://www.bailii.org/ew/cases/EWHC/QB/2019/346.html