Q:
Do tribunals often refuse requests for witness summons?
We are concerned that we will be disadvantaged if our witnesses do not attend the hearing. What else can we do if a summons request is refused?
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 24 Jul 2024
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Yes
Complex
I do not have specific statistics on the granting or refusal of requests to summon witnesses. As you are likely aware, Rule 16 addresses such applications:
I have submitted approximately five requests to summon witnesses, of which all but one have been granted. The approval or rejection of any application is determined in the interests of justice. With this in mind, here are several points that perhaps a person would want to consider when making an application:
- Applicants and respondents should carefully deliberate before applying for the tribunal to use its power to order a witness to attend. Compelled witnesses may be hostile or uncooperative, even if generally willing to give evidence.
- The Tribunal can require witnesses “to swear an oath in connection with the giving of evidence”. This is sometimes seen by some as a way to mitigate the risks associated with the above, although the Tribunal may need some persuading as this is not typical Tribunal procedure.
- When making the application, it is crucial to emphasise the "relevance" and "necessity" of the proposed witness’s evidence, although the decision to grant the order remains at the tribunal's discretion.
- Witnesses should be invited to attend voluntarily before resorting to a witness order.
- Historically, parties not making the application could not provide their views before a witness order was determined. However, case law now permits the tribunal discretion to seek comments from the opposing party. Therefore, it is prudent to seek the views of the other party before submitting the request for the witness summons to the tribunal.
- If an application is refused, the applicant may request a review of the decision. If unsuccessful, they can appeal to the Upper Tribunal, claiming it is an important interlocutory point. If permission is granted, the First-tier Tribunal proceedings should be stayed.
I would genuinely appreciate reading the views of others, and it would be helpful if you could indicate whether the above outline guidance is useful.
Best wishes,
Sean Kennedy
Sean Kennedy
Talem Law
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