Part 11 – Acting as a witness
June 2014
A witness can be required to:
A separate witness summons must be served on each witness [Note 2] and is binding for the hearing’s duration. However the court may excuse the witness prior to the conclusion of the hearing [Note 3].
19.181 Witness summons – production of documents
A witness summons may require the witness to produce documents to the court either:
The only documents that a person is required to produce before a hearing are documents which he/she would have been required to produce at the hearing [Note 5]. A witness summons cannot be used as a general disclosure exercise and must specify the documents required. The court may set aside or vary a witness summons where it believes the summons is for a speculative purpose [Note 6]. Further information on setting a summons aside is contained in paragraph 19.187.
19.182 Witness summons – may not be necessary
A witness summons may not be issued where the person indicates they are willing to attend and give evidence. If a witness summons is issued and the person fails to comply he/she may be held to be in contempt of court. If the official receiver is asked to give evidence in court and refuses, he/she may be served with a witness summons.
19.183 Court hearing date(s) – inability to attend due to prior commitments
If a witness is unable to attend court on certain dates due to prior commitments, he/she should immediately inform the party (or his/her solicitor) requiring his/her attendance as hearing dates can usually be arranged to accommodate a witness. If a witness summons is served and attendance by the witness is not possible, application must be made to the court to have the summons withdrawn. It is advisable to contact the solicitors concerned as they may be able to help with any difficulty the witness may have. If the witness is unable to arrange alternative dates an application to court will be necessary. The application must be made as quickly as possible to the court issuing the summons. An appointment will be made to see a judge who will listen to the reasons and objections and decide if the witness summons should be dismissed.
19.184 Court hearing – order of proceedings
In a civil trial, the claimant or his/her solicitor makes an opening speech followed by his/her evidence. The defendant or his/her legal representative then presents his/her evidence before making the closing speech. A witness statement (see paragraphs 19.88 to 19.94), which is invariably produced prior to the hearing, constitutes a witness's evidence-in-chief. The party which called the witness may be given permission by the court to ask additional questions. The opposing party is then given the opportunity to ask questions, a process known as cross- examination. The judge may ask questions at any time. The party that called the witness may ask additional questions after the cross-examination, a process known as re-examination. However re-examination may only be in respect of matters which arose in cross-examination. The purpose of re-examination is to restore the credibility of a witness or allow a witness to explain points made in cross-examination which may appear adverse and are not.
19.185
The official receiver’s actions on receiving a witness summons
19.186 Notification to Technical Section
As soon as the official receiver is served with any witness summons requiring attendance and the production of documents, he/she must forward a copy to Technical Section with details as to which of the documents specified are in his/her possession, and to what extent he/she believes that the documents might be relevant to the proceedings. The official receiver should specify what contact he/she has had with the solicitor issuing the summons to clarify what documents or evidence is required. Technical Section may then seek legal advice as to whether or not an application to set aside the witness summons should be made.
19.187 The official receiver and setting aside a witness summons
In certain circumstances, after discussion with the solicitors issuing the summons (see paragraph 19.185), the official receiver should consider an application to set aside a witness summons if he/she considers:
19.188 Legal representation for the official receiver as a witness
It is not the Insolvency Service’s policy for the official receiver or a member of his/her staff when acting as a witness to be legally represented in court. In extreme circumstances, for example where a bankrupt’s actions towards the official receiver have been serious enough to result in a complaint being made to the police and the official receiver feels physically threatened, the official receiver or a member of his/her staff may be legally represented in court.
19.189 The witness statement and attendance at court
The witness statement should be in the witness's own words and should be expressed in the first person [Note 7]. A written witness statement, affidavit or report must usually be filed before oral evidence can be given. Evidence can be given to the court in written form only, or in both written form and orally. Where the opposing party agrees a particular witness statement, affidavit or report should be used as written evidence only the witness will not be required to attend at court.
19.190 The official receiver and attendance at court
The opposing party may agree that the official receiver’s witness statement should be given to the court in written form only. In this instance formal notification of the official receiver’s non-attendance will be given. If the judge, or other party, consider that the official receiver should attend court to enable questions to be asked he/she will be notified of the time, date and place of the hearing.
19.191 The official receiver’s expenses for attending court
The official receiver, when acting as a witness in court, is entitled to claim the costs of travelling to and from the court, from the party, or the party’s solicitor, who has requested his/her attendance at court. This is known as conduct money and the cost of overnight accommodation (if this is necessary) may also be claimed [Note 8]. Additionally it has been held that a summonsed witness is entitled to the costs incurred in complying with the summons, and this is not limited to receiving conduct money [Note 9]. Such costs may cover any reasonable legal advice provided. Where the official receiver recovers such costs they should be paid into the estate account from which the expenses were drawn. Any departure from this should be agreed with Technical Section.
19.192 Dealing with the expenses claimed by the official receiver
The official receiver should make any necessary claim for conduct money (see paragraph 19.191) on receipt of the witness summons prior to attending at court. Any expenses paid to the official receiver by the party in respect his/her attendance as a witness should be credited to the relevant estate account. The official receiver’s claim for travelling and subsistence expenses should be drawn from the estate account in the usual way. Should payment from the court or the party concerned be made payable to the individual who attended court on behalf of the official receiver, the estate account must be reimbursed with the proceeds by the individual concerned.
19.193 Preparations for attending court as a witness
The official receiver should ensure that all the relevant papers for the case are taken to the court. The papers should be labelled and bundled in the right order so that they can be referred to quickly and easily. The official receiver should ensure that he/she is clear as to the time, date and place of the hearing.
The official receiver should take all relevant papers with him/her to court. The official receiver should arrive at court in good time and report to the receptionist, or court usher, who will make a note of the arrival. The official receiver should be directed to where he/she should wait. If the official receiver has to leave this waiting area for any reason, the usher, or another person involved in the case, should be informed. A list of cases to be heard each day is usually displayed close to the reception/foyer of the court which will indicate whether the case is to be held in public or in private and the name and the type of the judge. The official receiver should find the party (or his/her solicitor) for whom he/she is giving evidence, as there may be some last minute information to be received, for example, the estimated time he/she will be giving evidence or that the case has been resolved and the hearing does not need to take place.
19.195 Giving evidence at court in the witness box – the oath
Where the official receiver is required to give evidence, he/she will be directed to the witness box and should remain standing when giving his/her evidence, unless permission to sit down has been given by the court. The official receiver is required to take an oath, that is to swear to tell the truth, on The Bible or the Holy Book of his/her religion or to affirm, i.e. give a promise to tell the truth. The official receiver should inform the usher prior to the hearing whether an affirmation or oath on a particular Holy Book is required.
19.196 Giving evidence in the witness box – answering questions
When answering a question the official receiver witness should not guess at an answer. The official receiver should ask for a question to be repeated if he/she does not understand it. The official receiver should speak clearly and slowly as the judge may be taking a handwritten note of the evidence. The official receiver should direct his/her answer to the judge and not the person asking the question. If the official receiver needs to refer to the papers during the course of his/her evidence, the permission of the judge should be sought first (see paragraph 19.189).
19.197 Giving evidence at court – in chambers
The hearing may be held in the judge's room. In this instance the official receiver will give his/her evidence whilst sat at a table. The official receiver should follow the guidance provided in paragraphs 19.189 to 19.196 when giving evidence.
19.198 Giving evidence at court – release of the official receiver
When the official receiver has provided all the information required by the court and the parties concerned, he/she will be informed that he/she has been ‘released’, i.e. he/she is free to leave the court. A witness should not leave the court building unless he/she has been released or the case has been concluded. A witness may be released but asked to come back later that day or on another day. Further information regarding acting as a witness can be found in the Enforcement Investigation guide, chapter 115.
[Back to Part 10 – Court hearings] [On to Part 12 – Court records]