Part 34

Court attendance by witnesses

Contents of this Part

Scope of this part Rule 34.1

Witness Summonses Rule 34.2

Issue of a witness summons Rule 34.3

Witness summons in aid of an inferior court or Tribunal Rule 34.4

Time for serving witness summons Rule 34.5

Who is to serve witness summons Rule 34.6

Right of witness to travelling expenses and

compensation for loss of time Rule 34.7

Evidence by deposition Rule 34.8

Conduct of examination Rule 34.9

Evidence without Examiner being present Rule 34.10

Enforcing attendance of witness Rule 34.11

Time taken to be endorsed on deposition Rule 34.12

Special Report Rule 34.13

Fees and expenses of examiner Rule 34.14

Order for payment of Examiner's fees Rule 34.15

Use of deposition at trial Rule 34.16

Restrictions on subsequent use of depositions taken for the

purpose of any hearing except the trial Rule 34.17

Where a person to be examined is out of the

jurisdiction - letter of request Rule 34.18

Who may be an examiner Rule 34.19

Early appointment to produce documents Rule 34.20

 

Scope of this part

34.1 (1) This part provides -

    1. for the circumstances in which a person may be required to attend court to give evidence or to produce a document
    2. for a party to obtain evidence before a hearing to be used at the hearing

(2) In this Part, reference to a hearing includes a reference to a trial.

 

Witness Summonses

34.2 (1) A witness summons is a document issued by the court

requiring a witness to -
    1. attend court to give evidence; and/or
    2. produce documents to the court.
    1. A witness summons must be in the prescribed form.
    2. There must be a separate witness summons for each witness.
    3. A witness summons may require a witness to produce documents to the court either -
    1. on the date fixed for a hearing; or
    2. on such date as the court may direct.

 

Issue of witness summons

34.3 (1) A witness summons is issued on the date entered on the

summons by the court.
    1. A party must obtain permission from the court where -
    1. he wishes to have a witness summons issued less than 28 days before the date of the hearing; or
    2. he wishes to have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial.

(3) The application may be without notice.

(4) However, the application must be supported by evidence.

(5) The court may set aside or vary a witness summons

 

Witness summons in aid of an inferior court or Tribunal

34.4 (1) The court may issue a witness summons in aid of an inferior

court or of a tribunal.
    1. The court may set aside a witness summons issued under this rule.

 

Time for serving witness summons

34.5 (1) The general rule is that a witness summons is binding

only if it is served at least 21 days before the date on

which the witness is required to attend before the

court or tribunal.
    1. The court may direct that a witness summons may be binding although it will be served less than 21 days before the date on which the witness is required to attend before the court or tribunal.
    2. An application for such an order may be made without notice.
    3. It must, however, be supported by evidence.
    4. A witness summons which is -
    1. served in accordance with this rule; and
    2. requires the witness to attend court to give evidence is binding until the conclusion of the hearing at which the attendance of the witness is required.

 

Who is to serve witness summons

34.6 (1) The general rule is that a witness summons is to be

served by the party on whose behalf it is issued.
    1. However, the court may serve the summons if the party on whose behalf it is issued the witness summons requests the court to do so when he issues it.
    2. Where the court serves the witness summons, the party on whose behalf it is issued must deposit in the court office the money to be paid or offered to the witness under rule 34.7.

 

Right of witness to travelling expenses and compensation for loss of time

34.7 At the time of service of a witness summons the witness must

be offered or paid -
    1. a sum reasonably sufficient to cover his subsistence and expenses in travelling to and from the court; and
    2. such sum by way of compensation for loss of time as may be specified in a practice direction.

Evidence by deposition

34.8 (1) A party may apply for an order for a person to be

examined before a hearing.
    1. A person from whom evidence is to be obtained following any order under this rule is referred to as a "deponent" and the evidence is referred to as a "deposition".
    2. An order under this rule shall be for a deponent to be examined on oath before such person as the court appoints.
    3. The order may require the production of any document which the court considers is necessary for the purposes of the examination.
    4. The order must state the date, time and place of the examination.
    5. At the time of service of the order the deponent must be offered or paid -
    1. a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
    2. such sum by way of compensation for loss of time as may be specified in a practice direction.
    1. An application may be made by any party whether or not that party would otherwise call the witness.
    2. Where the application is made by the party who would call the witness to give evidence, the court may order that party to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.

(Part 29 contains the general rules about witness statements and witness summaries)

 

Conduct of examination

34.9 (1) Subject to any directions contained in the order for

examination, the examination must be conducted in the same

way as if the witness were giving evidence at a trial.
    1. If the parties are present, the examiner may, with the consent of the parties, conduct the examination of a person not named in the order for examination.
    2. The examiner may conduct the examination in private if he considers it appropriate to do so.
    3. The examiner must ensure that the evidence given by the witness is recorded in full.
    4. If any person being examined objects to answer any question put to him, the ground of the objection and the answer to any such question must be set out in the deposition or in a statement annexed to the deposition.
    5. The examiner must state his opinion with regard to the ground of the objection but any decision on the validity of that ground must be made by the Court.
    6. The examiner must send a copy of the deposition to -
    1. every party to the proceedings; and
    2. to the court; and
    3. to the deponent.

(6) If the witness or any attorney present at the hearing is of the

opinion that the deposition does not accurately represent the

evidence he shall endorse on the copy deposition the corrections

which in his opinion should be made and file the copy deposition and serve a copy of it on all other parties.

 

Evidence without examiner being present

34.10 (1) With the consent of the parties, the Court may order that the

evidence of a witness be taken as if before an examiner, but

without an examiner actually being appointed or present

(2) Where such an order is made the, subject to any directions that

may be contained in the order -

(a) the party whose witness is to be examined shall provide

a shorthand writer or stenographer to take down the

evidence of the witness; and

(b) any attorney of either of the parties shall have authority

to administer the oath to a witness; and

(c) the shorthand writer or stenographer need not himself

be sworn but must certify in writing as correct a

transcript of his notes of the evidence and deliver it to

the attorney for the party whose witness was examined.

(d) The attorney whose witness was examined must file the

original transcript and deliver a true copy to all other

parties and to the witness who was examined.

(e) If the witness or any attorney present at the hearing is of the opinion that the transcript does not accurately

represent the evidence he shall endorse on the copy

transcript the corrections which in his opinion should be

made and file the copy transcript and serve a copy of it on all other parties.

 

Enforcing attendance of witness

34.11 (1) If a person served with a witness summons to attend

before an examiner -
    1. fails to attend; or
    2. refuses to be sworn or affirm for the purpose of the examination; or
    3. refuses to answer any lawful question or produce any document at the examination,

a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.
    1. On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring the person to attend, or to be sworn or to affirm or to answer any question or produce any document as the case may be.
    2. An application for an order under this rule may be made without notice.
    3. The applicant must provide evidence that the person served with the witness summons was paid or offered the payments required by rule 34.7.
    4. The court may order the person against whom an order is made under this rule to pay any costs resulting from his failure or refusal.
    5. A person who wilfully disobeys an order made against him under paragraph (2) is guilty of contempt of court

 

 

Time taken to be endorsed on deposition

34.12 The examiner must endorse on the deposition the time occupied in

taking the deposition and the fees received by him.

 

Special Report

34.13 The examiner may make a special report to the Court with regard to the

absence or conduct of any person present when the deposition was taken.

 

Fees and expenses of Examiner

34.14 (1) An examiner appointed by the Court is entitled to charge the

fees specified in the following table -

Table of Examiner's fees

1. For each day for which an appointment

to take an examination is given $XX

2. For each hour of part of an hour after

the first hour occupied in an examination

within three miles of the Hall of Justice,

Port of Spain $XX

3. For each hour of part of an hour after

the first hour occupied in an examination

more than three miles of the Hall of Justice,

Port of Spain $XX

(2) The party who obtained the order must also pay all reasonable

travelling and other expenses including charges for a room

(other than the examiner's own chambers or office) where the

examination takes place.

(3) This does not affect any decision as to the party who is

ultimately to bear the costs of the examination.

 

Order for payment of Examiner's fees

34.15 The examiner may report to the Court the fact that any fees or expenses

due to him have not bee paid and the Court may make an order that the

party who obtained the order for the examination should pay such fees

and expenses.

 

Use of deposition at hearing

34.16 (1) A deposition ordered under rule 34.8 may be given in

evidence at the trial unless the court orders otherwise.
    1. A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.
    2. He must serve the notice at least 21 days before the day fixed for the hearing.
    3. The court may require a deponent to attend the hearing and give evidence orally.

 

Restrictions on subsequent use of depositions taken for the purpose of any hearing except the trial

34.17 (1) Where the court orders a party to be examined about his or

any other assets for the purpose of any hearing except the

trial, the deposition may be used only for the purpose of the

proceedings in which the order was made.
    1. However, it may be used for some other purpose -
    1. by the party who was examined; or
    2. if the party who was examined agrees; or
    3. if the court gives permission.

 

Where a person to be examined is out of the jurisdiction - letter of request

34.18 (1) Where a party wishes to take a deposition from a party

outside the jurisdiction, the court may order the issue

of a letter of request to the judicial authorities of the

country in which the proposed deponent is.
    1. A letter of request is a request to a judicial authority to take the evidence of that person, or arrange for it to be taken.

(3) If it is permissible in the country to which the letter is sent to

allow a person appointed by the court to examine a person

in that country, the court may make an order appointing an

examiner for that purpose.

(4) A person may be examined under this rule on oath or

affirmation or in accordance with any procedure permitted in

the country in which the examination is to take place.

(5) If the court makes an order for the issue of a letter of request,

the party who sought the order must file -
    1. the following documents and, except where paragraph (6) applies, a translation of them -

      2. (i) a draft letter of request; and

      (ii) a statement of the issues relevant to

      the proceedings; and

      (iii) a list of questions or the subject matter

      of questions to be put to the person to

      be examined; and

    2. an undertaking to be responsible for the expense of the Minister with responsibility for Foreign Affairs.

(6) There is no need to file a translation if English is one of the

official languages of the country where the examination is to

take place.

 

Who may be an examiner

34.19 An examiner may be a judge or master or any attorney who has practised for not less than five years and is appointed by the Chief Justice.

 

Early appointment to produce documents

34.20 (1) The court may issue a witness summons requiring -

    1. a party; or
    2. any other person,

to attend at a date, time or place (a 'production hearing') specified in the summons other than the date of the trial for the purpose of producing one or more documents.
    1. The only documents that a summons under this rule can require a person to produce are documents which that person could be compelled to produce at the trial.