To summon or not?

At the start of any litigation, individuals or companies may find that there are plenty of witnesses who are willing and able to provide witness evidence in support of their claim. However, with time, employees can move away and recollection of key events and important conversations can fade. After all, the average time scale from proceedings being issued to a trial being listed is around 12-18 months.

The witness evidence stage of proceedings normally comes after the disclosure process which in itself can be long and drawn out resulting in many parties losing their appetite for the litigation. When it comes to witness evidence, perhaps the most critical stage in proceedings, it can be difficult locating people who have moved on. It may also become apparent that people’s recollection of events have faded.

There are ways to deal with this. For example, ensuring that you take evidence from witnesses right at the outset of a dispute can ensure that you get your witness evidence safely in the bag. Whilst this may seem pre-emptive, it can make all the difference, especially when there is a lack of documentation.

If you do reach the witness evidence stage and discovered that an ex-employee has moved on or that someone is now unwilling to give a witness statement, there are a number of tools in the Civil Procedure Rules which may be able to assist you.

If for example you are dealing with a witness who has changed their mind, you may consider applying for permission to serve a witness summary. A witness summary should be served at the same time as all other witness statements and should contain a summary of the evidence this person would include in their witness statement or, if the evidence is unknown, should contain questions for the witness.

Alternatively, if you know from the outset that someone is unwilling to provide witness evidence, it may be worth considering summoning them to attending the trial. A witness summons can be issued at any point without the Court’s permission provided it is issued more than 7 days from trial. A summons can be for the attendance of a person to give evidence or alternatively to produce documents to the Court.

The risk with summoning a witness who has not previously provided a witness statement is that you have no way of controlling what they might say in the witness box. A witness may be hostile and may say something that is unhelpful for your case.

We would always recommend thinking about witness evidence at the outset of any litigation and, if possible, taking proofs of evidence as early as possible to ensure that evidence is based on accurate recollection and to give yourself the best chance of success at trial.