Witness Summons against solicitor not set aside: BUT BE THERE AT 2.00 PM!

WITNESS SUMMONS AGAINST SOLICITOR NOT SET ASIDE: BUT BE THERE AT 2.00 PM. ~ June 20, 2017 · by · in Applications, Witness statements

In Morris -v- Hatch [2017] EWHC 1448 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) refused to set aside a witness summons issued against a solicitor.

“… it is the civic duty of each of us, when called upon to give evidence which is relevant, to assist in the resolution of disputes before the courts.”

THE CASE

The claimant was seeking the return of £250,000 from the defendant made, the claimant said, by way of loan. The action was defended on the basis that the payment was a gift.

The claimant issued a witness summons against a solicitor who had acted for the defendant in the purchase of a house. That summons also required the solicitor to produce the conveyancing file to the court.

The defendant subsequently gave permission to the solicitor to disclose the file, consequently privilege in the file was waived. That waiver extended (the judge sated) to oral evidence about the transaction, at least as far as the defendant was concerned.

THE SOLICITOR’S APPLICATION

The solicitor issued an application to set aside the witness summons. This was opposed by the claimant’s solicitors.

THE JUDGE’S CONSIDERATION OF THE LAW

The law
    1. The relevant law is not in any doubt. It is clear that the court has power to set aside or vary a witness summons that has been issued: see CPR rule 34.3(4). On an application to set aside or vary a witness summons, the burden does indeed lie upon the issuing party to justify the summons, rather than on the resisting party to show why it should be set aside. It is also clear that the cases (largely decided under the old RSC) have established a number of grounds upon which the court may (not must) set aside a witness summons. These include that the summons was not issued in good faith for the purpose of obtaining relevant evidence, that the witness cannot in fact give any relevant evidence, that it is oppressive, and that it breaches the confidentiality of others, particularly where the same information could be obtained in ways that do not. See R v Baines [1909] 1 KB 258, and South Tyneside Borough Council v Wickes Building Supplies Ltd[2004] EWHC 2428 (Comm). The latter was cited to me during the argument, and I referred to the former.
    2. But it is also clear that the court must balance the interests of justice in the fair disposal of the claim with competing outside interests. And the fact that a party issuing a witness summons has motives going beyond the purposes of the particular action does not by itself make the issue of the summons oppressive. Similarly, the fact that a witness may (or, indeed, may be obliged to) claim privilege against answering certain questions does not mean that the witness summons should be set aside. Privilege may be waived, or may not prevent the particular question, or a part of such a question, from being answered.
    3. Section 3 of the Criminal Procedure Act 1865, to which I have already referred, provides as follows:
“A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence…”
For this purpose, Phipson at paragraph 12–61 says that a party is “adverse” when he
“bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court. He is not adverse in the statutory sense when his testimony merely contradicts his proof or because it is unfavourable to the party calling him”.

APPLYING THOSE PRINCIPLES TO THIS CASE

Discussion
    1. It would be a matter for the trial judge to decide what questions the claimant may be able to ask Mr Hayes, and I shall therefore say no more than that, in my judgment, the mere fact that the claimant might wish to ask questions which the judge might not permit does not mean that the summons was issued in bad faith. At the time that it was issued, the conveyancing file had not been disclosed, and indeed still has yet to be produced to the court. In part at least, that is what it was issued for. That certainly cannot be shown to have been in bad faith.
    2. To the extent that the summons was issued to obtain evidence at trial, it seems apparent that at that time the claimant did not know what Mr Hayes would say. It might have been in the claimant’s favour. The claimant may have taken a calculated risk to summon Mr Hayes, in the hope that he would say something favourable to the claimant’s case. I do not need to say, and I do not say, anything as to whether this hope has been realised. But in my judgment it is hard to make good the argument that the issue of the summons was in bad faith when the only evidence relied on is material contained in a witness statement made subsequently, which in substance takes issue with some of the points made by the witness in his witness statement made in support of an application to set aside the summons. On the material before me, I decline to find that this summons has been issued in bad faith.
    3. It is also clear that Mr Hayes is able to give relevant evidence at the trial. Again, for obvious reasons, I will not go into this in any detail. The fact that the claimant may wish to criticise some aspects of Mr Hayes’ evidence does not alter that relevance. The trial judge has power to prevent questions being asked which are not relevant or which are oppressive, or which are otherwise not proper questions. In circumstances where the case is likely to turn on oral evidence as to a contested matter of fact, and Mr Hayes is in a position to provide relevant evidence in relation to that question, and from an objective and independent source, I would be very slow to regard the issue of the witness summons as oppressive, and I do not do so here. On the contrary, it seems beneficial to the process.
    4. As for s 3 of the 1865 Act, in the present case, I agree with Mr Anderton that it is difficult to see how the claimant can call Mr Hayes to give evidence at the trial and then seek to cross-examine him as a hostile witness merely because he gives evidence which the claimant does not like. Telling the truth (which every witness promises to do) does not by itself demonstrate a hostile animus. Ultimately, though, this is a matter for the trial judge. On the other hand, Mr Hayes can give relevant evidence, and the court will not set aside the witness summons just because that evidence may not or does not support the case of the party calling him.
    5. Of course, I accept that Mr Hayes is a busy professional man, with a practice to run, and this is not his dispute. Moreover, he may be anxious not to be seen to take sides. Sometimes reputational questions arise. I do not know. But it is the civic duty of each of us, when called upon to give evidence which is relevant, to assist in the resolution of disputes before the courts. Here Mr Hayes can give relevant evidence, and he is that rare thing, the independent witness. He says (correctly) that he has already handed over to the defendant a copy of the file referred to in the summons, and provided a statement. But that does not make his attendance at court unnecessary.
    6. As to the file, the summons requires him to produce it to the court, not to hand it over to one or other party beforehand. As it happens, his client asked him to provide it to his (the client’s) solicitors, but that does not discharge Mr Hayes’ obligation to the court. At least in the absence of agreement between the parties, the original file must still be brought to court. Second, and more important, his written statement supplied in response to the summons is not without more admissible evidence of anything. And the party calling him is entitled to his oral evidence on oath on all the questions properly asked of him in open court (not just those dealt with in the statement), where the judge may observe his demeanour, and supplementary questions may be asked to elucidate his evidence. If Mr Hayes thought that he could discharge his obligation to attend court by disclosing the file (to his own client) and serving a statement of what he thought he might be asked, then I am afraid that he was wrong.
    7. Although at the outset the defendant was entitled to confidentiality in his dealings with his solicitor for the purposes of the purchase of the property, in the circumstances of this case by disclosing it to the claimant he has effectively given up that confidentiality, at least for the purposes of the action, and with it any legal professional privilege that may attach to the file. The impact on the mortgagee, HSBC Bank, is less clear, and of course I have heard no argument on it, the bank not being a party to this application. If necessary, that is a matter on which the trial judge will have to rule. But, the mortgagee’s part in this transaction being much smaller and less important than that of the defendant, it is clear to me that confidentiality and privilege will not be a bar to most, if not all, the relevant evidence being given by Mr Hayes to assist the court in the resolution of the issues of fact in this case.
Conclusion
    1. In the result, therefore, and for the above reasons, I declined to set aside this witness summons. On the other hand, I could see no good reason why Mr Hayes should be required to attend on the whole of both days of the trial. I therefore varied the summons to require him to attend at 2 pm on the first day of the trial. It seems likely to me that he can be dealt with within that afternoon. But if that should prove not to be the case, then I am sure that the trial judge will make arrangements to accommodate him accordingly.
Costs
  1. On the question of costs, after discussion with counsel at the end of the hearing, I decided that the question of the costs of the application which I have refused should be reserved to the trial judge. This was largely for two reasons. First, the claimant might decide after the hearing but before the trial that Mr Hayes need not give evidence after all. Second, the judge at trial would be in a better position to decide on the impact of Mr Hayes’ evidence than I could be at the hearing of this application. If for any reason the trial judge is not called on to adjudicate on costs, then I can of course be asked to do so in relation to the costs of this application. In the first instance, I could do that on paper, without the need for a hearing.
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