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If you are a business owner in England and Wales and are dealing with a dispute, you may wonder what a subpoena is. A witness summons, or a ‘subpoena’, is one way of procuring evidence in a court case. The term subpoena is used less frequently in the UK than in the United States.
This article will explain what a witness summons is in detail. It will also explain when a witness summons may be available for your business to use as part of a court case.
What is a Subpoena?
A subpoena is issued when a court requires a person to submit oral evidence as part of a trial. Failure to provide the evidence can result in a penalty to the summoned individual. In fact, the word ‘subpoena’ means ‘under penalty.’
How Would I Summon a Witness Normally?
Normally, witness summons are used in criminal proceedings. A witness supporting the prosecution’s argument will be the prosecution’s responsibility. This means that the prosecution will have to ensure that their witness turns up in court. Similarly, a defence team will have to make sure that their defence witness turns up in court.
However, if the witness refuses to turn up to court for whatever reason, you may consider applying for a witness summons. First, it is a good idea to speak to witnesses and get information about their reasons for not attending court.
If the witness is worried about turning up to legal proceedings because of their own fear or anxiety, you can apply for ‘special measures’ at the court. This involves the court providing alternative ways to hear the witness’s testimony, such as via video link.
However, if this does not work, you may consider applying for a witness summons. This can help the requesting party to make the witness give a testimony in court where they physically appear.
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Applying for a Witness Summons
Either the defence or the prosecution can apply for a witness summons, which will require the witness to come to court or pay the penalty.
To successfully obtain a witness summons by the court, the court must be satisfied that:
- the evidence that the witness is going to give is likely material evidence that could prove something relevant in the case; and
- the witness summons will be in the interests of justice. For example, it may enable tangible evidence to be presented in court.
However, if the court thinks that a witness cannot give evidence, they will not grant a witness summons. This may occur, for example, if the court believes the witness is not competent or compellable.
Once the court grants the application, an appointed person will serve the summons to the witness. This is usually done through personal delivery or a letter to the witness’s address. They must then attend the court at the time and date specified.
Objecting to a Witness Summons
A witness that has been served with a witness summons can apply to set the summons aside. They may be able to do so because they:
- were not aware of any application made by the client’s lawyer for a witness summons; and
- cannot give in any evidence which is likely to be relevant to the case; or
- the rights of confidentiality of the witness outweigh the reasons for issuing a witness summons.
On the whole, a witness summons can help convince a reluctant witness into giving evidence that may support your case. This is most often used in criminal proceedings. In any case, you should seek legal advice before considering taking steps to convince a witness to testify.
Key Takeaways
You may find yourself in a court dispute at some point in your business’s lifespan. In this instance, it can be a good idea to explore different ways of getting a witness to give a testimony. One way is talking directly to the witness, but if this does not work, you may consider applying for a witness summons.
A witness summons involves the court ordering the witness to give evidence, and will fine them if they refuse. On the whole, it is a good idea to seek professional legal advice from an early stage if you are in a dispute involving witnesses.
If you have any questions about witness summons or resolving disputes, our experienced disputes lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
A witness summons is an order by a court for a witness to give a testimony as part of a legal proceeding.
A subpoena is another word for a witness summons. The word has been used historically and is still used in some parts of the world, such as the United States.
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