Acting as a Witness

Part 6

Acting as a Witness

January 2007 

19.71 Witness summons

A witness summons is a document issued by the court requiring a witness [Note 1]:

  1. to attend court to give evidence; or
  2. produce documents to the court. 

A separate witness summons must be served on each witness [Note 2].

The witness summons may require a witness to produce documents to a court either [Note 3]:

  1. on the date fixed for the hearing; or
  2. on such date as the court may direct.

The only documents that a witness summons can require a person to produce before a hearing are documents which that person could be required to produce at the hearing [Note 4].

A witness summons is binding until the conclusion of the hearing but the court has a discretion to order that a witness summons shall cease to be binding prior to the conclusion of the hearing [Note 5].


19.72 Official receiver called as witness in court

If the official receiver is required to give evidence in court he/she may be served with a witness summons. A witness summons is generally only used where a witness indicates that he/she is unwilling or reluctant to attend and give evidence. If the official receiver fails to comply with the witness summons, he/she may be held to be in contempt of court.

Hearing dates can usually be arranged to fit in with any future plans of a witness. If the official receiver 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. If a witness summons is served and attendance by the official receiver is not possible, application must be made to the court to have the summons withdrawn.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 official receiver may have. If an application to court is necessary, the application must be made as quickly as possible to the court by which the summons was issued. 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.

The official receiver may be requested to meet with the party’s solicitor prior to the hearing to discuss (in broad terms) the evidence to be given. This may give the official receiver some idea of the type of questions he/she is likely to be asked. 

 

19.73 Witness representation

It is not Departmental policy for a member of staff acting as a witness to be legally represented in court. It is possible, in extreme circumstances, for a witness on behalf of the official receiver to be legally represented in court, e.g. 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. 

 

19.74 When giving evidence

The witness statement should be in the witness's own words and should be expressed in the first person [Note 6].

A written witness statement, affidavit or report must invariably be filed before oral evidence can be given. Evidence can be given in written form only or in written form and orally.

The opposing party in a case may agree that a particular statement (or report) should be used as evidence and consequently the official receiver will not be required to attend at court. Should this occur, formal notification will be given. If the parties do not agree to the written evidence, or feel that the official receiver’s attendance at court is required in case the judge, or the other party, wants to ask questions about the evidence, the time, date and place of the hearing will be notified to the official receiver. 

 

19.75 Expenses

The official receiver, when acting as a witness in court, is entitled to claim costs of travelling to and from the court, from the party, or the party’s solicitor, who has requested the attendance at court [Note 7]. This is known as conduct money. The cost of overnight accommodation (if this is necessary) may also be claimed. The official receiver when acting as a witness in his/her official capacity is on official duty. In such circumstances, in addition to normal pay, a witness is entitled to payment for travelling time and to travelling and subsistence allowance under the normal terms and conditions. Any expenses paid by the party in respect of the official receiver’s attendance as a witness should consequently be paid into and credited to the relevant estate account with the appropriate subsistence expenses being 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.

The official receiver should make any necessary claim for conduct money on receipt of the witness summons prior to attending at court.


19.76 Prior to hearing

All the papers for the case concerned should be taken to the court. These should be arranged 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, and where the court is. Every court has its own leaflet which indicates where the court is and the facilities available. This leaflet can be obtained from the court on request. 

 

19.77 Giving evidence

On the day of the hearing the official receiver should arrive in good time and 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, e.g. he/she may be told approximately when he/she will be giving his/her evidence or that the case has been resolved at the last moment and the hearing does not need to take place. When arriving at the court, the official receiver should report to the receptionist or the court usher who will make a note of the arrival and the official receiver will 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.

Should the official receiver be required to give evidence, he/she will be directed to the witness box and should remain standing when giving his/her evidence. If, for any reason, standing is difficult, permission should be sought from the court to sit down. If the hearing is in a judge's room, there is no witness box and the parties sit around a table. Otherwise, the official receiver should behave as if in court. The official receiver will then be 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. It will aid the court if the usher is informed prior to the hearing if an affirmation or oath on a particular Holy Book is required. When acting as a witness, if a question is not understood, the witness should ask for it to be repeated. A witness should not guess at an answer. When giving evidence, the official receiver should speak slowly as the judge may be taking a handwritten note of the evidence. The official receiver when acting as a witness should speak clearly, giving the answers to questions to the judge and not to the persons asking the questions. When attending the hearing, the official receiver should take all relevant papers with him/her to court. If the official receiver needs to refer to the papers during the course of evidence, the permission of the judge should first be sought.


19.78 Order of speeches

In a civil trial, the claimant’s opening speech comes first, followed by his/her evidence. The defendant then calls his/her evidence and, finally, the claimant makes his/her closing speech.

A witness statement, which is invariably produced prior to the hearing, constitutes a witness's evidence-in-chief, unless the party that called that witness is given the court's permission to ask additional questions. The opposing party is then given the opportunity to ask questions, which process is known as cross- examination. The judge may ask additional questions at any time. It is possible that a witness may be re-examined by the party who called the witness. 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 have appeared adverse and which in fact are not.


19.79 Witness release

When a witness 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 5 - Court hearings] [On to Part 7 - Service of documents]  

 

Further Information