PART 30Witnesses and depositions
- Scope of this Part
- Witness summonses
- Issue of a witness summons
- Time for serving a witness summons
- Who is to serve a witness summons
- Right of witness to travelling expenses and compensation for loss of time
- Evidence by deposition
- Conduct of examination
- Enforcing attendance of witness
- Use of deposition at a hearing
- Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial
- Fees and expenses of examiner of the Tribunal
- Examiners of the Tribunal
Scope of this Part
This Part provides –
(1) for the circumstances in which a person may be required to attend before the Tribunal to give evidence or to produce a document; and
(2) for a party to obtain evidence before a hearing to be used at the hearing.
In this Part, reference to a hearing includes a reference to the trial.
A witness summons is a document issued by the Tribunal requiring a witness to –
(1) attend before the Tribunal to give evidence; or
(2) produce documents to the Tribunal.
A witness summons must be in Form P30/01.
There must be a separate witness summons for each witness.
A witness summons may require a witness to produce documents to the Tribunal either –
(1) on the date fixed for a hearing; or
(2) on such date as the Tribunal may direct.
The only documents that a summons under Rule 30.3(2) can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.
Issue of a witness summons
A witness summons is issued on the date entered on the summons by the Tribunal.
Two copies of the witness summons should be filed with the Tribunal for sealing, one of which will be retained on the Tribunal file.
A mistake in the name or address of a person named in a witness summons may be corrected if the summons has not been served.
The corrected summons must be re-sealed by the Tribunal and marked ‘Amended and Re-Sealed’.
A party must obtain permission from the Tribunal where he wishes to –
(1) have a summons issued less than 7 days before the date of the hearing;
(2) have a summons issued for a witness to attend before the Tribunal to give evidence or to produce documents on any date except the date fixed for the hearing; or
(3) have a summons issued for a witness to attend before the Tribunal to give evidence or to produce documents at any hearing except the trial.
The Tribunal may set aside or vary a witness summons issued under Rule 30.8.
Time for serving a witness summons
The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the Tribunal.
The Tribunal may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the Tribunal.
A witness summons which is –
(1) served in accordance with Rule 30.14 or 30.15; and
(2) requires the witness to attend before the Tribunal to give evidence,
is binding until the conclusion of the hearing at which the attendance of the witness is required.
Who is to serve a witness summons
A witness summons is to be served by the Tribunal unless the party on whose behalf it is issued indicates in writing, when he asks the Tribunal to issue the summons, that he wishes to serve it himself.
Where the Tribunal is to serve the witness summons, the party on whose behalf it is issued must deposit, in the Tribunal Registry, the money to be paid or offered to the witness under Rule 30.19.
Right of witness to travelling expenses and compensation for loss of time
At the time of service of a witness summons the witness must be offered or paid –
(1) a sum reasonably sufficient to cover his expenses in travelling to and from the Tribunal; and
(2) such sum by way of compensation for loss of time as may be specified in the relevant Practice Direction.
Evidence by deposition
A party may apply for an order for a person to be examined before the hearing takes place.
A person from whom evidence is to be obtained following an order under Rule 30.20 is referred to as a ‘deponent’ and the evidence is referred to as a ‘deposition’.
An order under Rule 30.20 shall be for a deponent to be examined on oath before –
(1) a Tribunal Member or a member of a Judicial Panel;
(2) an examiner of the Tribunal; or
(3) such other person as the Tribunal appoints.
The order may require the production of any document which the Tribunal considers is necessary for the purposes of the examination.
The order must state the date, time and place of the examination.
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 the relevant Practice Direction.
Where the Tribunal makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
Conduct of examination
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.
If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.
The examiner may conduct the examination in private if he considers it appropriate to do so.
The examiner must ensure that the evidence given by the witness is recorded in full.
(1) In ensuring that the deponent’s evidence is recorded in full, the Tribunal or the examiner may permit it to be recorded on audiotape or videotape, but the deposition must always be recorded in writing by him or by a competent shorthand writer or stenographer.
(2) If the deposition is not recorded word for word, it must contain, as nearly as may be, the statement of the deponent; the examiner may record word for word any particular questions and answers which appear to him to have special importance.
If a deponent objects to answering any question or where any objection is taken to any question, the examiner must:
(1) record in the deposition or a document attached to it –
(a) the question,
(b) the nature of and grounds for the objection, and
(c) any answer given, and
(2) give his opinion as to the validity of the objection and must record it in the deposition or a document attached to it.
The Tribunal will decide as to the validity of the objection and any question of costs arising from it.
Documents and exhibits must:
(1) have an identifying number or letter marked on them by the examiner, and
(2) be preserved by the party or his legal representative who obtained the order for the examination, or as the Tribunal or the examiner may direct.
The examiner may put any question to the deponent as to:
(1) the meaning of any of his answers, or
(2) any matter arising in the course of the examination.
A deposition must:
(1) be signed by the examiner,
(2) have any amendments to it initialled by the examiner and the deponent,
(3) be endorsed by the examiner with –
(a) a statement of the time occupied by the examination, and
(b) a record of any refusal by the deponent to sign the deposition and of his reasons for not doing so.
The examiner must send a copy of the deposition –
(1) to the person who obtained the order for the examination of the witness; and
(2) to the Tribunal.
The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.
Enforcing attendance of witness
If a person served with an order to attend before an examiner –
(1) fails to attend; or
(2) refuses to be sworn for the purpose of the examination or 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. The examiner may include in his certificate any comment as to the conduct of the deponent or of any person attending the examination.
On the certificate being filed, the party requiring the deposition may apply to the Tribunal for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.
An application for an order under Rule 30.39 may be made without notice.
The Tribunal will make such order on the application under Rule 30.39 as it thinks fit including an order for the deponent to pay any costs resulting from his failure or refusal.
A deponent who wilfully refuses to obey an order made against him under this Part may be proceeded against for contempt.
Use of deposition at a hearing
A deposition ordered under Rule 30.20 may be given in evidence at a hearing unless the Tribunal orders otherwise.
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.
He must serve the notice at least 21 days before the day fixed for the hearing.
The Tribunal may require a deponent to attend the hearing and give evidence orally.
Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of Rule 29.61 (availability of witness statements for inspection).
Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial
Where the Tribunal 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.
However, it may be used for some other purpose –
(1) by the party who was examined;
(2) if the party who was examined agrees; or
(3) if the Tribunal gives permission.
Where a person to be examined is out of Dubai – Letter of Request
Rules 30.51 to 30.57 apply where a party wishes to take a deposition from a person who is out of Dubai.
The Tribunal may order the issue of a letter of request by the Registrar to the judicial authorities of the country in which the proposed deponent is.
An application for an order referred to in Rule 30.51 should be made by application notice in accordance with Part 23.
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.
If the government of a country allows a person appointed by the Tribunal to examine a person in that country, the Tribunal may make an order appointing a special examiner for that purpose.
A person may be examined under Rules 30.51 to 30.54 on oath or affirmation or in accordance with any procedure permitted in the country in which the examination is to take place.
If the Tribunal 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 Rule 30.57 applies, a translation of them –
(a) a draft letter of request in the form set out in the Schedule to this Part;
(b) a statement of the issues relevant to the proceedings;
(c) 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 Registrar’s expenses.
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.
Fees and expenses of examiner of the Tribunal
An examiner of the Tribunal may charge a fee for the examination.
He need not send the deposition to the Tribunal unless the fee is paid.
The examiner’s fees and expenses must be paid by the party who obtained the order for examination.
If the fees and expenses due to an examiner are not paid within a reasonable time, he may report that fact to the Tribunal.
The Tribunal may order the party who obtained the order for examination to deposit in the Tribunal office a specified sum in respect of the examiner’s fees and, where it does so, the examiner will not be asked to act until the sum has been deposited.
An order under this Rule 30.62 does not affect any decision as to the party who is ultimately to bear the costs of the examination.
Examiners of the Tribunal
The Tribunal may appoint persons to be examiners of the Tribunal.
The persons appointed shall be practitioners with rights of audience before the Tribunal who have been practising for a period of not less than three years.
The Tribunal may revoke an appointment at any time.