Preparation for trial - Summoning witnesses

Learning Outcomes

This article details the procedures for securing witness attendance at civil trials in England and Wales. It explains the purpose and use of witness summonses under CPR Part 34, the steps for issuing and serving them, and the consequences of non-compliance. For the SQE1 assessments, you will need to understand the rules governing witness summonses, including the requirements for service, the entitlement to expenses, and the court's powers to compel attendance. This knowledge will enable you to apply the relevant principles to SQE1-style single best answer questions concerning trial preparation and evidence.

In addition, you should understand when court permission is required to issue or serve a summons (including late service and use for hearings other than trial), how to handle conduct money when the court serves the summons, how a summons interacts with the CPR 32 regime on witness statements and summaries, and the process and limits of summoning a person solely to produce documents. You should also be familiar with the court’s contempt powers, including issuing a warrant for arrest where appropriate, and the professional conduct constraints on benefits to witnesses.

SQE1 Syllabus

For SQE1, you are required to understand the practical steps involved in preparing a case for trial, including ensuring the attendance of necessary witnesses and applying the rules under CPR Part 34 regarding witness summonses, with a focus on the following syllabus points:

• the procedure for issuing a witness summons (CPR 34.3)
• the time limits for serving a witness summons (CPR 34.5)
• the requirement to offer or pay witness expenses (CPR 34.7)
• the consequences of a witness failing to attend court in response to a summons (CPR 34.8)
• distinguishing between compelling attendance for giving evidence and producing documents.
• when court permission is required for a summons (less than 7 days before attendance; hearings other than trial) (CPR 34.5(2))
• service by the court and the deposit of conduct money (CPR 34.6; PD 34A para 3.2)
• applications to set aside or vary a witness summons and the role of privilege (PD 34A)
• interaction with CPR 32 (witness statements, witness summaries, and calling witnesses)
• practical listing issues: witness availability on directions questionnaires and pre-trial checklists.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the minimum notice period generally required for serving a witness summons before the hearing date?
   1. 3 clear days
   2. 5 business days
   3. 7 days
   4. 14 days
2. Which of the following is a potential consequence for a witness who fails to attend court after being served with a valid witness summons?
   1. An adverse costs order
   2. A default judgment against the party who summoned them
   3. Being held in contempt of court
   4. Having their evidence automatically disregarded

3. True or false? A party issuing a witness summons must offer the witness payment for their time off work, regardless of the amount.

Introduction

Ensuring that key witnesses attend trial is a critical aspect of case preparation. While many witnesses attend voluntarily, some may be reluctant or unable to do so without a formal court order. The Civil Procedure Rules (CPR) provide a mechanism to compel attendance through a witness summons. Understanding the purpose, procedure, and implications of witness summonses is essential for effective litigation practice and success in the SQE1 assessments. This article outlines the rules governing the summoning of witnesses to give evidence or produce documents in civil proceedings.

Only a small number of cases proceed to trial, and success is influenced heavily by preparation, including keeping witnesses informed of the listing and checking their availability at an early stage. Witness availability must be included in directions questionnaires and revisited in pre-trial checklists to assist listing and to minimise adjournments. Even where cooperation appears assured, if there is doubt about voluntary attendance, a witness summons provides certainty and procedural advantage.

Key Term: Witness Summons
A document issued by the court requiring a witness to attend court to give evidence or to produce documents to the court (CPR 34.2).

The Purpose and Power of a Witness Summons

A witness summons is a formal document issued by the court requiring an individual to attend court on a specific date to either give oral evidence or produce documents relevant to the proceedings. This power is granted under CPR Part 34.

Key Term: Witness Summons
A document issued by the court requiring a witness to attend court to give evidence or to produce documents to the court (CPR 34.2).

The primary purpose is to ensure that parties can present necessary evidence to the court, thereby supporting the just resolution of the dispute. It is used when a party anticipates that a witness may not attend voluntarily or when specific documents held by a witness are required.

A witness summons can require a person to attend to give evidence, to produce documents, or both. It does not override rules about witness statements: if a party has failed to serve a witness statement by the deadline, the witness may still be prevented from giving evidence without the court’s permission (CPR 32.10), even if compelled to attend. The summons is a tool to secure presence or production, but compliance with case management directions remains essential.

A summons cannot require production of privileged documents. A witness served with a summons may apply to set aside or vary it if it is oppressive, too broad, or seeks privileged material. The court will balance the need for evidence against the burden on the witness and the legal protections that apply.

When is a Witness Summons Necessary?

A party should consider applying for a witness summons if:

• There are reasonable grounds to believe a witness will not attend voluntarily.
• The witness's evidence is essential for the party's case.
• Specific documents held by the witness are necessary for the trial and cannot easily be obtained otherwise.

It is often good practice to discuss attendance with a witness informally first. If they agree to attend, a summons might be unnecessary, saving costs and maintaining a good relationship. However, if there is any doubt, securing a summons provides certainty.

Practical factors include the witness’s current relationship to the parties (for example, former employees may be less willing to assist), organisational witnesses (such as a bank holding records), and whether the witness is likely to become hostile. The court expects parties to assist with efficient listing by noting dates of unavailability, but a summons is prudent where commitment is uncertain. It is unusual to summons experts, who are expected to cooperate with the parties who instruct them; if an expert is required to attend, ensure early liaison about availability.

A summoned witness may become hostile at trial. If a witness called by a party gives unfavourable evidence, the party may, with the judge’s permission, cross-examine their own witness to challenge credibility. This does not affect whether a summons should be used but is a reminder to anticipate risks in witness handling.

Worked Example 1.1

Freya is suing David for breach of contract. A former employee of David, Sarah, possesses emails essential to Freya's case but is reluctant to get involved due to loyalty to David. Freya's solicitor has informally requested Sarah's attendance, but Sarah has declined. What should Freya's solicitor advise?

Answer:
Freya's solicitor should advise applying for a witness summons under CPR Part 34 to compel Sarah's attendance and potentially require her to produce the relevant emails. Given Sarah's reluctance, voluntary attendance is unlikely, and the evidence appears essential.

Procedure for Issuing and Serving a Witness Summons

The process for obtaining and serving a witness summons is governed by CPR Part 34 and its accompanying Practice Direction (PD 34A).

Issuing the Summons (CPR 34.3)

• Application: The party seeking the summons (the applicant) must complete the relevant court form (Form N20). This form requires details of the witness, the hearing date, and what the witness is required to do (give evidence, produce documents, or both).
• Filing copies: File two copies with the issuing court—one for sealing and service, and one for the court file (PD 34A para 1.2).
• Court fee: A court fee is payable upon application.
• Issuance: The application is filed at the court where the case is being heard or where the hearing will occur. The court issues the summons by sealing it. The issuing court must be the court in which the case is proceeding or the court where the hearing will take place (CPR 34.3(3)). Where a tribunal or other body has no power to issue a summons, a higher court may issue one to support that body’s process (CPR 34.4).
• Scope: The summons should specify clearly whether it compels attendance, production of documents, or both, and should identify, with particularity, any documents sought.

Serving the Summons (CPR 34.5 & 34.6)

• Timing: The general rule under CPR 34.5(1) is that a witness summons must be served on the witness at least 7 days before the date they are required to attend court. This is calendar days, not business days. If a party intends to serve the summons less than 7 days before the required attendance, or if the summons is for a hearing other than trial, the court’s permission is required (CPR 34.5(2)).
• Method: Service is usually by personal service, meaning handing it directly to the witness or leaving it with them. If personal service is not possible, apply for alternative service (for example, email or service at a registered office for a corporate witness).
• Service by court: A party can request the court to serve the summons (CPR 34.6(1)). Where the court serves the summons, the party must deposit a reasonable sum with the court to cover conduct money (PD 34A para 3.2).
• Proof of service: Keep clear evidence of service and of the offer/payment of conduct money, such as a process server’s certificate and a receipt for funds offered.

Worked Example 1.2

A trial is listed for Tuesday, 14th May. Raj needs to ensure his key witness, Ben, attends. Ben has verbally agreed but Raj is nervous he might change his mind. Raj's solicitor applies for and receives an issued witness summons on Monday, 6th May. What is the latest date the summons must be served on Ben?

Answer:
The summons must be served at least 7 days before 14th May. Counting back 7 days (excluding the 14th), the latest day for service is Monday, 6th May. The solicitor must ensure Ben receives it by the end of that day.

Court Permission Triggers

A common pitfall is overlooking the need for court permission where timing or the hearing type falls outside the default position:

• Summons for hearings other than trial, such as interim applications or case management hearings, require court permission.
• Service less than 7 days before the date of required attendance also requires court permission. If permission is not obtained, service is defective and the witness is not obliged to attend.

Worked Example 1.3

The claimant wishes to compel a witness to produce documents at a summary judgment hearing in 5 days’ time. Can a witness summons be used?

Answer:
Yes, but court permission is required for a summons for a hearing other than trial and for service less than 7 days before attendance (CPR 34.5(2)). The party should apply urgently for permission, explaining the urgency and relevance.

Witness Expenses (CPR 34.7 & PD 34A para 3)

Importantly, when a witness summons is served, the witness must be offered or paid:

• A sum reasonably sufficient to cover their travel expenses to and from court.
• Compensation for their loss of time (e.g., loss of earnings).

Key Term: Conduct Money
Money paid or offered to a witness served with a witness summons to cover their travelling expenses and compensate them for their loss of time (PD 34A para 3.1).

Where the court serves the summons, the requesting party must deposit an appropriate sum with the court to meet these expenses (PD 34A para 3.2). Failure to offer or pay conduct money at the time of service, or within a reasonable time before the hearing, may render the summons ineffective. A witness who is not offered sufficient conduct money has a just excuse for non-attendance.

Professional conduct rules also constrain benefits to witnesses. Paying legitimate travel expenses and reasonable compensation for loss of earnings or time is permitted. Any benefit contingent on the nature of the evidence or the case outcome is prohibited.

Worked Example 1.4

The defendant asks the court to serve a summons on a reluctant witness. The court seals and posts the summons but the defendant forgets to deposit conduct money with the court. On the hearing day, the witness does not attend. Is the witness in breach?

Answer:
No. When the court serves the summons, the party must deposit conduct money with the court. As no conduct money was offered or paid, the witness had a just excuse not to attend. The summons is ineffective until conduct money is properly provided.

Exam Warning

A common mistake is overlooking the requirement to offer or pay conduct money when serving a witness summons. Failure to do so means the witness is not obliged to attend, potentially jeopardising a party's case. Ensure this step is completed and evidenced.

Consequences of Non-Compliance

If a witness fails to attend court after being properly served with a valid witness summons and offered appropriate conduct money, they may face serious consequences.

Contempt of Court (CPR 34.8)

Failure to comply with a witness summons without just excuse can lead to the witness being held in contempt of court.

Key Term: Contempt of Court
Conduct that defies, disrespects, or hinders the authority or administration of justice by the court. Penalties can include fines or imprisonment.

The court has the power to issue a warrant for the witness's arrest to bring them before the court (CPR 34.9).

Key Term: Warrant of Arrest (Witness)
An order authorising the arrest and production before the court of a witness who has failed, without just excuse, to comply with a witness summons (CPR 34.9).

The precise sanctions for contempt vary; in serious cases, especially in High Court proceedings, imprisonment is possible. In less serious cases, fines or orders compelling attendance may be imposed.

Practical Implications for the Party

The non-attendance of a key witness can severely damage a party's case. It may lead to:

• Inability to prove essential facts.
• Adjournment of the trial, causing delay and additional costs.
• Potentially weakening the overall credibility of the party's case.

If a party fails to secure attendance due to procedural missteps (e.g., late service without permission or not paying conduct money), the judge may be reluctant to adjourn and may make costs orders. Conversely, where a summons was properly issued and served but the witness still failed to attend, the judge is more likely to be sympathetic to an adjournment and may authorise coercive measures.

Worked Example 1.5

Chen serves a witness summons on Liam 10 days before trial, offering reasonable travel expenses but no compensation for loss of time, despite knowing Liam will miss a day's wages. Liam does not attend the trial. Can Liam be held in contempt of court?

Answer:
Likely not. Although served in time, Liam was not offered or paid sufficient conduct money to cover both travel and loss of time (specifically, his lost wages). Therefore, he likely had a "just excuse" for not attending, and the summons may be deemed ineffective. Chen cannot compel his attendance or seek contempt proceedings without rectifying the conduct money issue.

Worked Example 1.6

A party serves a witness summons 4 days before trial without seeking court permission. The witness ignores the summons. Can the court issue a warrant of arrest?

Answer:
No. Service less than 7 days before attendance requires court permission. Without permission, service is defective and the witness is not obliged to attend. Contempt or arrest powers would not be engaged.

Summons to Produce Documents

A witness summons can also be used solely to require a person (who may not necessarily be needed to give oral evidence) to produce specific documents to the court (CPR 34.2(1)(b)).

The documents required must be clearly specified in the summons. The summons may require the documents to be produced either at the hearing or on an earlier date specified by the court. The witness may comply by sending the documents to the court or bringing them to the hearing. If a summons is overbroad or seeks privileged material, the witness may apply to vary or set aside the summons. The court will consider whether the request is proportionate, sufficiently particularised, and not oppressive.

When seeking documents from organisations (for example, financial records from a bank or employment records from a former employer), specificity is important. Specify date ranges, account numbers, and categories of documents to avoid burdensome fishing expeditions. Electronic documents and data can also be requested; again, ensure clarity and proportionality.

Worked Example 1.7

A claimant seeks bank statements from Omega Bank for the defendant’s business account from January to June of the previous year. The bank is not needed to give evidence. How should the summons be framed?

Answer:
Use a witness summons to produce documents, identifying Omega Bank by name and registered address and specifying the account number, the date range (January–June), and the precise documents required (monthly statements). The summons may require production to the court before the hearing. The bank can comply by sending the documents; attendance to give evidence is unnecessary.

Privilege and Protection

A summons cannot override privilege. Legal professional privilege, without prejudice privilege, and certain public interest immunities may prevent production. If privileged material is sought inadvertently, the witness can object and apply to set aside or vary. The court may also direct redactions or narrower scope to avoid encroaching on protected material.

Worked Example 1.8

A summons requires an accountant to produce “all client files and communications” relating to the defendant’s tax advice. The accountant objects on grounds of privilege and burden. What is the likely outcome?

Answer:
The court is likely to vary or set aside the summons to exclude privileged material and to limit the request to specific, relevant documents (for example, engagement letters or non-privileged records). Overbroad demands are oppressive and will be curtailed.

Interaction with Witness Statements, Summaries, and Hearsay

A witness summons compels attendance or production, but it does not displace the regime for witness statements (CPR 32). Ordinarily, evidence at trial is given through served witness statements endorsed with statements of truth. If a party fails to serve a statement by the deadline, the witness cannot be called without the court’s permission (CPR 32.10). If a statement cannot be obtained, a party may serve a witness summary (CPR 32.9), containing the known and expected evidence and the witness’s identity and address. Summoning a witness does not provide automatic relief from sanctions for non-service.

If a witness does not attend but a party wishes the court to consider their signed statement, it will be treated as hearsay. Hearsay is admissible, but the court will assess its weight in light of factors such as the ability to test the evidence through cross-examination, whether the statement was contemporaneous, whether there is multiple hearsay, and any motive to mislead.

Key Term: Witness Summary
A document served where a party cannot obtain a witness statement, setting out the evidence that the witness is expected to give and matters on which the witness will be questioned (CPR 32.9).

Key Term: Hearsay Notice
Formal notification served where a party intends to rely on hearsay evidence from a witness who will not attend, enabling the other party to respond and take steps to challenge or call the witness.

The opposing party may respond to a hearsay notice by seeking to call the witness or by serving a notice of intention to challenge credibility. These steps must be taken promptly, typically within 14 days of the hearsay notice. Where hearsay is relied upon, the trial judge will indicate the weight attached to it in the judgment.

Worked Example 1.9

A party summonses a witness who then attends but, due to missed deadlines, the party never served a witness statement for that witness. Can the witness give evidence?

Answer:
Not without the court’s permission. CPR 32.10 bars a party from calling a witness at trial if they failed to serve a statement as directed. The summons secures attendance, but the party must seek permission (or relief from sanctions) to adduce the witness’s oral evidence.

Practical Case Management Points

• Witness availability: Include dates of unavailability in directions questionnaires and pre-trial checklists.
• Corporate witnesses: Service can often be effected at a registered office; specify the individual or office holder if appropriate.
• Alternative arrangements: If attendance is impracticable, consider seeking directions for video-link evidence rather than a summons (with proper applications under CPR 32.3).
• Hostile witnesses: Anticipate that a witness may become hostile; the court may permit cross-examination by the calling party where justified.
• Costs: Improper handling of witness attendance (for example, failing to serve in time or omitting conduct money) may result in adverse costs orders or refusal to adjourn.

Revision Tip

When advising a client on trial preparation, always distinguish between witnesses who are cooperative and likely to attend voluntarily, and those who might require a summons. For key but potentially reluctant witnesses, issuing a summons provides solid assurance. Remember to factor in the time needed for service and the requirement for conduct money.

Key Point Checklist

This article has covered the following key knowledge points:

• A witness summons compels attendance or document production under CPR Part 34.
• It is used when voluntary attendance is uncertain or document production is needed.
• Form N20 must be completed and filed with the court fee, and two copies filed (PD 34A para 1.2).
• The issuing court is the court where the case is proceeding or where the hearing will occur; a higher court may issue where a tribunal lacks power (CPR 34.3, 34.4).
• The summons must generally be served at least 7 days before the hearing; court permission is required for service less than 7 days or for hearings other than trial (CPR 34.5).
• Service may be effected by the party or the court; if the court serves, deposit conduct money with the court (CPR 34.6; PD 34A para 3.2).
• Conduct money (travel expenses and compensation for loss of time) must be offered or paid upon service; otherwise the witness has a just excuse not to attend (CPR 34.7).
• A summons cannot compel production of privileged documents; witnesses may apply to set aside or vary an oppressive or overbroad summons (PD 34A).
• Failure to comply with a valid summons can result in contempt of court proceedings and, where appropriate, a warrant of arrest (CPR 34.8, 34.9).
• A witness summons does not bypass CPR 32 requirements; without a served witness statement, the witness cannot be called without permission (CPR 32.10).
• Hearsay may be admissible where a witness does not attend, but it attracts less weight; serve a hearsay notice where required.

Key Terms and Concepts

• Witness Summons
• Conduct Money
• Contempt of Court
• Warrant of Arrest (Witness)
• Witness Summary
• Hearsay Notice