Morris v Hatch

A witness summons may be set aside or varied where it was not issued in good faith to obtain relevant evidence, the witness cannot give relevant evidence, the summons is oppressive, or it unjustifiably breaches confidentiality. The issuing party bears the burden of justification. The court must balance the fair disposal of the claim against competing interests. Relevant evidence does not become oppressive merely because it may be unfavourable to the party calling the witness, or because questions may require control at trial. Disclosure of a file and provision of a witness statement do not ordinarily replace the witness’s duty to attend and give oral evidence on oath.

The claimant sought to recover £250,000 alleged to have been lent to the defendant. The defendant said that the money was a gift. The claimant issued a witness summons requiring the defendant’s former solicitor, Mr Hayes, to produce the conveyancing file for a property purchase and to attend the trial.

Mr Hayes applied under CPR rule 34.3(4) to set aside the summons. He argued that the summons was issued in bad faith, was oppressive, and was unnecessary because he had supplied the file and a statement. The central issues were whether he could give relevant evidence, whether attendance was necessary, and whether the summons should be set aside or varied.

1. The application to set aside the witness summons was dismissed. The summons was varied so that Mr Hayes was required to attend at 2 pm on the first day of the trial only, with further arrangements left to the trial judge if necessary.

2. Under CPR rule 34.3(4), the court may set aside or vary a witness summons. The issuing party bears the burden of justifying it. Relevant grounds include bad faith, absence of relevant evidence, oppression, and unjustified interference with confidentiality, particularly where the information can be obtained by less intrusive means.

3. The court must balance the interests of justice in the fair disposal of the claim against competing outside interests. Motives going beyond the purposes of the action do not, without more, make a summons oppressive. Nor does the possibility that a witness may claim privilege require the summons to be set aside.

4. Mr Hayes could give relevant evidence from an objective and independent source about the disputed payment. In a case likely to turn on oral evidence, the summons was not oppressive. The trial judge could prevent irrelevant, oppressive or otherwise improper questioning.

5. Production of the file to the defendant’s solicitors did not discharge the summons, which required production to the court. A written statement was not, without more, admissible evidence of its contents. The claimant was entitled to Mr Hayes’s oral evidence on oath and to supplementary questions properly arising in open court.

6. Under section 3 of the Criminal Procedure Act 1865, a party calling a witness cannot treat him as hostile merely because his evidence is unfavourable or contradicts the party’s case. Hostility requires the relevant hostile animus, and the ultimate decision remained for the trial judge.

7. The defendant’s disclosure of the file to the claimant effectively waived confidentiality and legal professional privilege for the purposes of the action. The position of HSBC Bank was left for the trial judge if necessary, but it was unlikely to prevent most relevant evidence being given.

8. Costs of the application were reserved to the trial judge.