There are numerous reasons why a witness may be unable or unwilling to assist a party in litigation, either by providing a witness statement, attending court or both. In such circumstances, careful consideration should be given to how that evidence can be adduced. Witness summaries: If you are unable to obtain a statement from a witness then consideration should be given to producing a witness summary pursuant to CPR 32.9. As the name suggests, the witness summary should set out the evidence that a witness can provide, if it is known. If the evidence is not known, the witness summary should set out the matters on which the witness will be questioned at trial. A witness summary should be set out in the same format and contain the same information as a witness statement.
Any witness summary should be served within the same deadline set for witness statements. There is no absolute right to rely upon a witness summary. Any party seeking to rely on a witness summary should apply, without notice, for the court’s permission to serve it. Failure to serve a witness summary in accordance with CPR 32.9 will mean that the witness cannot be called to give the evidence without specific permission from the court. Provided the witness summary is served in accordance with the rule, it will not fall within CPR 32.10 and that witness can be called without needing the court’s permission.
If a witness summary is not served in accordance with CPR 32.9, an application for relief from sanctions or permission to call the witness will have to be made. In pragmatic terms, it is unlikely to be problematic if the witness summary was served on time but the court’s permission has not been obtained. In this case, the prejudice to the other party is minimal as it has had the opportunity to consider the contents of the witness summary and raise objections to it. It also allows the parties to properly plan/consider the trial timetable. It may be more difficult if a witness summary was served late (especially close to a trial) or not at all. Parties need to give early consideration as to whether it will be necessary to serve a witness summary and they should not overlook the specific requirement to obtain the court’s permission to serve the same.
However, serving the witness summary is only the first hurdle when dealing with a witness who is unable or unwilling to provide a statement. Assuming you have correctly served the witness summary, you need to ensure that the witness attends court to provide evidence. This can be done by obtaining a witness summons requiring the witness to attend court, but be mindful of the potential for calling a “hostile” witness; you may not be sure of their evidence. It is also possible that a witness summary could contain hearsay evidence, in which case you may need to obtain a hearsay notice, as well as serving a witness summary. This is particularly so when the witness does not intend to attend court to give oral evidence.
Read more: Joseph Henry, Hodge, Jones & Allen, https://is.gd/YDzBUW