Rule 20: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Summoning of witnesses and orders to answer questions or produce documents

(1) On the application of a party or on its own initiative, the Tribunal may—

(a) by summons require any person to attend as a witness at a hearing at the time and place specified in the summons; or

(b) order any person to answer any questions or produce any documents in that person’s possession or control which relate to any issue in the proceedings.

(2) A summons under paragraph (1)(a) must—

(a) give the person required to attend not less than 14 days’ notice of the hearing or such shorter period as the Tribunal may direct; and

(b) where the person is not a party, make provision for the person’s necessary expenses of attendance to be paid, and state who is to pay them.

(3) No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law.

(4) A summons or order under this rule must—

(a) state that the person on whom the requirement is imposed may apply to the Tribunal to vary or set aside the summons or order, if they have not had an opportunity to object to it; and

(b) state the consequences of failure to comply with the summons or order.

The LVT had the power to require a party to proceedings to provide it with information, in default of which that party was liable to prosecution for a summary offence.

This new rule removes the criminal sanction, but extends the Tribunal’s powers: it is now entitled to summons any person – as opposed to any party – for three purposes:

• to give evidence, and

In relation to an issue in the proceedings:

• to answer questions, or
• to produce any document in that person’s control.

Aside from identifying the documents or information sought, of which more below, a party seeking an order under this rule must ensure that two main points appear in the Tribunal’s direction:

• the witness must be given not less than 14 days’ notice (query again the calculation of time). If less than 14 days’ notice is being given, the Tribunal must include in its direction a provision shortening that time frame, and
• the direction must make provision for the payment of the witness’s expenses.

Failure to comply with a witness summons under the Civil Procedure Rules is punishable as contempt of court. In the context of the Tribunal, this same sanction can apply: section 25 of the Tribunals Courts and Enforcement Act 2007 will come into play again here.

This is the only rule governing witness summonses in the Tribunal. It is a little short on the detail of how a summons is issued and how notice of it is given to the person who is being summonsed.

I have therefore been back to the Civil Procedure Rules and case law in other Tribunals to look for guidance.

Here is the text of rules 34.2 and 34.3 of the Civil Procedure Rules. They are general provisions relating to the content and issuing of witness summonses.

Rule 34.2 Witness summonses

(1) A witness summons is a document issued by the court requiring a witness to—

(a) attend court to give evidence; or

(b) produce documents to the court.

(2) A witness summons must be in the relevant practice form.

(3) There must be a separate witness summons for each witness.

(4) A witness summons may require a witness to produce documents to the court either—

(a) on the date fixed for a hearing; or

(b) on such date as the court may direct.

(5) The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.

In Tajik Aluminium Plant v Hydro Aluminium AS [2005] EWCA Civ 1218, Moore Bick LJ said:

“A witness summons to produce document … involves the exercise of the court’s coercive powers. The person to whom it is addressed is at risk of being in contempt of court if he fails to comply in any material respect, as the summons itself makes clear. He is obliged to bring the documents to which the summons refers to court…

“27 … A witness summons, unlike an order for disclosure, requires the person to whom it is addressed to attend court on a specified occasion and to produce to the court the documents to which it refers. It is a requirement reinforced with a penal sanction. Justice demands, therefore, that the person to whom it is addressed should be told clearly when and where he must attend and what he must bring with him.

“Anything less is unfair to the witness; it also makes supervision and enforcement by the court extremely difficult… Ideally each document should be individually identified, but I do not think it is necessary to go that far in every case. In In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 the court was concerned with an application under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 under which the High Court is empowered to make orders for the production of documents for use as evidence in proceedings abroad pursuant to a request from a foreign court. Subsection (4) of section 2 expressly provides that an order made under that section shall not require the person to whom it is addressed to state what documents are or have been in his possession, custody or power or to produce any documents other than particular documents specified in the order and subsection (5) provides for the payment of conduct money, expenses and loss of time…

“However, despite the express requirement that an order under this section must specify particular documents, Lord Fraser of Tullybelton, with whom the other members of their Lordships’ House agreed, considered that “a compendious description of several documents” would suffice provided that the exact document in each case was clearly indicated. By way of example he drew a distinction between an order for the production of “monthly bank statements for the year 1984 relating to [your] current account” with a named bank, which he thought would satisfy the requirements of the Act, and “all [your] bank statements for 1984”, which he thought would not…

“28. Rule 34.2 does not contain any provision comparable to section 2(4) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, but Lord Fraser’s observations are none the less helpful because they provide an example of the ways in which, without describing them individually, it may be possible to identify the documents to be produced with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do. In my view that is the test that should be applied when considering whether documents have been sufficiently identified in a witness summons. Whether it has been met is likely to depend, at least in part, on the particular circumstances of the case. It is unlikely to be met if the documents are described simply by reference to a particular transaction or event which is itself described in broad terms, although in cases where the transaction is self-contained and sufficiently well-defined that might be satisfactory. In general, I think that doubts about the adequacy of the description should be resolved in favour of the witness.”

Rule 34.3 Issue of a witness summons

(1) A witness summons is issued on the date entered on the summons by the court.

(2) A party must obtain permission from the court where he wishes to—

(a) have a summons issued less than 7 days before the date of the trial;

(b) 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; or

(c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.

(3)   A witness summons must be issued by—

(a) the court where the case is proceeding; or

(b) the court where the hearing in question will be held.

(4) The court may set aside or vary a witness summons issued under this rule.

The same limitations on production of documents and evidence apply here as in the case of rule 18.

The Civil Procedure Rules set out the rules for service of the witness summons. I think that the case of MD v Secretary of State for Work and Pensions (Enforcement of Reference) [2011] AACR 5 is however probably more helpful on this point.

In MD, the Three-Judge Panel said: “13. The … Rules do not contain provisions regulating the service of documents on person who are not parties to the proceedings, but rule 6(4) [rule 7(6) for the Property Chamber] requires written notice of any direction to be sent to any person affected by the direction, and section 7 of the Interpretation Act 1978 only deems a document to be effectively served by post if it is properly addressed. These are fundamental points which must be borne in mind by tribunals. Even more fundamentally in the present case Dr M has told us, and we accept, that he did not receive the … notice…

“19. All these points serve to emphasise that procedures are not followed merely for their own sake. Tribunals must make clear in plain English what things must be done. They must also make clear the possible consequences of any failure to do what the tribunal has required. In order to make clear what may happen if the necessary things are not done we think it highly desirable, at the very least, that a statement … of the consequences of a failure to comply with a summons … should spell out the penalties that may be imposed for failure to comply. In England and Wales these include imprisonment, a fine and sequestration of assets”.

I have nearly reached the half-way point of my countdown to 01 July 2013. I would like to think that Upper Tribunal (Administrative Appeals Chamber) would approve of these posts, focusing as they do on the procedure which the new First-tier Tribunal will be applying.