Order 46 - Attendance Of Witnesses And Production Of Documents : S.I. No. 17 Of 2014
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S.I. No. 17 of 2014 - provisions overview
1 — ATTENDANCE OF WITNESSES
1 Application to Clerk to issue witness summons
1. Any party desiring the attendance of a person (in this Order, a “witness”) to give evidence or produce any books, papers or documents to the Court, or to an officer of the Court, in any civil proceedings must apply for, and the Clerk may issue, a witness summons (Form 46.01, Schedule C) requiring the witness to whom the summons is directed to comply with the requirements of the witness summons at the time and place stated in the witness summons.
2 Application to Court to issue witness summons
2. (1) An application for the issue of a witness summons requiring an officer of the State to attend and produce any books, papers or documents to the Court (witness summons duces tecum) may not be issued except by order of the Court on an application ex parte.
(2) In any case of difficulty as regards the issue of any other witness summons, the party seeking the attendance of a witness may apply ex parte to the Court for the issue of a witness summons.
(3) On an application under sub-rule (1) or sub-rule (2), the Court may direct the issue of a witness summons, with or without conditions as it considers appropriate, or may make such other order as it considers just.
3 Service of witness summons
3. (1) A witness summons must be served personally or by registered post on the witness named in the witness summons, unless the Court orders otherwise.
(2) If it appears to the Court that a witness served with a witness summons was not given reasonable time to enable him or her to appear as directed in the witness summons, or that his or her reasonable expenses of attending have not been paid or offered to him or her, the Court may set aside or disregard service of the witness summons.
4 Persons named in witness summons
4. (1) A witness summons requiring a witness to attend to give evidence only (witness summons ad testificandum) may be directed to and served on more than one person.
(2) A witness summons requiring a witness to attend and produce any books, papers or documents to the Court, or to an officer of the Court (witness summons duces tecum) may be directed to only one person, except in the case of partners, where all the members of the firm may be addressed in the witness summons in which event the attendance of any one of the members of the firm to produce the document or thing must be taken to be sufficient compliance with the witness summons unless the Court thereafter directs a specific member of the firm to so attend.
5 Officer of the Court may require expenses
5. If any officer of the Court is required by a witness summons to attend with any record or document at any sitting or place outside the Court district in which he or she is serving, the officer may require that the party requiring his or her attendance (or that party’s solicitor) must:
(a) deposit with the officer a sufficient sum of money to answer his or her reasonable charges and expenses in respect of attendance, and
(b) undertake to pay any further reasonable charges and expenses which may not be fully met by the deposit.
6 Consequences of failure to comply with a witness summons
6. If a witness who has been duly summoned:
(a) fails without lawful excuse to attend or to give evidence or to produce the books, papers or documents according to the witness summons; or
(b) unless duly excused, fails to remain in attendance throughout the hearing,
the Court, if satisfied that the witness has been duly summoned and that his or her reasonable expenses have been tendered, may impose a fine on the witness for his or her default, or may make such other order as is just in the circumstances.
7 Remittal on cause shown
7. The Court may, on cause shown, remit the whole or any part of any fine or imprisonment imposed under rule 6, or may order that the amount of any fine imposed, or any part of any fine imposed, be paid to a party in respect of the costs and expenses of any adjournment made necessary by the default of the witness.
2 — EVIDENCE BY VIDEOCONFERENCE
8 Application for use of live television link
8. An application for a direction that a party may participate in a hearing in the proceedings, or that a witness give evidence in any such hearing, from a location other than the Court itself, by means of a live television link in accordance with section 26 of the Civil Law (Miscellaneous Provisions) Act 2008:
(a) may be made by motion on notice to the other party or parties;
(b) may be heard and decided without the prior issue of a notice of motion by the Court on any occasion when the Court is considering case management directions.
3 — FOREIGN PUBLIC DOCUMENTS AND FOREIGN LANGUAGE DOCUMENTS
9.[1] Any affidavit for use in proceedings in the Court may be taken outside Ireland:
(i) before any Irish diplomatic or consular representative or agent exercising such functions in the country concerned, or
(ii) before any notary public lawfully authorised to administer oaths in the country concerned, or
(iii) in any part of the European Union, before any notary public or other person authorised to administer oaths in such place;
and judicial notice shall be taken of the seal or signature, as the case may be, of any such diplomatic or consular representative or agent, notary public or other person attached, appended or subscribed to any such affidavit, or to any document exhibited to any such affidavit.
Proof of Foreign Public, Diplomatic and Consular Documents of Member States of the European Union
10.[2] (1) In this rule:
“Central Authority” means the Central Authority of a Member State of the European Union designated in accordance with Article 15 of the 2016 Regulation to fulfil functions relating to the application of the 2016 Regulation;
the “2016 Regulation” means Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012;
“public documents” has the same meaning as in Article 3 of the 2016 Regulation.
(2) A document which purports to be a public document to which the 2016 Regulation applies (or a certified copy, within the meaning of Article 3(7) of the 2016 Regulation, thereof) is, without proof of:
(i) any formal procedure for certifying the authenticity of a signature,
(ii) the capacity in which the person signing the document has acted, or
(iii) where appropriate, the identity of the seal or stamp which it bears, admissible in evidence as such if otherwise admissible.
(3) In any case in which the Court has a reasonable doubt as to the authenticity of a public document or certified copy produced in accordance with sub-rule (2), the Court may direct the taking of any step permitted by Article 14 of the 2016 Regulation to dispel such doubt. In any such case the Court must in its directions set out the grounds upon which the directions are based.
11.[3] (1) In this rule:
“Central Authority” means the Central Authority of a Contracting State designated in accordance with Article 5 of the 1987 Convention;
the “1987 Convention” means the Convention Abolishing the Legalisation of Documents in the Member States of the European Communities done at Brussels on the 25th May, 1987;
a “Contracting State” means a State which is a party to the 1987 Convention other than the State and includes a State which has made a declaration pursuant to Article 6(3) of the 1987 Convention;
“document” means and includes any document or documents which are public documents within the meaning of Article 1 of the 1987 Convention, but does not include a “public document” within the meaning of rule 10, to which the 2016 Regulation applies.
(2) A document which purports to be a public document within the meaning of Article 1 of the 1987 Convention is, without proof of:
(i) any formal procedure for certifying the authenticity of a signature,
(ii) the capacity in which the person signing the document has acted,
(iii) or where appropriate, the identity of the seal or stamp which it bears,
admissible in evidence as such if otherwise admissible.
(3) In any case in which the Court has serious doubts, with good reason, in relation to any document which is produced as to the authenticity of the signature, the capacity in which the person signing the document has acted, or the identity or seal of the stamp which it bears, it may direct that such information as it thinks relevant be requested in accordance with Article 4 of the 1987 Convention from the Central Authority of the State from which the act or document emanated. In any such case the Court shall in its directions set out the grounds upon which the directions are based.
(4) This rule applies to any document to which the 1987 Convention (but not the 2016 Regulation) applies and rules 10, 12 and 13 do not apply in such a case.
Proof of Foreign Diplomatic and Consular Documents (London Convention 1968)
12.[4] (1) In this rule:
the “1968 Convention” means the European Convention on the Abolition of Legalisation of Documents Executed by Diplomatic Agents or Consular Officers done at London on the 7th June, 1968;
a “Contracting State” means a State, other than Ireland, which is a party to the 1968 Convention;
“document” means and includes any document or documents to which Article 2 of the 1968 Convention applies.
(2) A document which purports to have been executed by the diplomatic agents or consular officers of a Contracting State is, without proof of:
(i) any formality used to certify the authenticity of the signature on such a document, or
(ii) the capacity in which the person signing such a document has acted, or
(iii) where appropriate, the identity of the seal or stamp which such document bears, admissible in evidence without such proof if otherwise admissible in evidence.
(3) The Court may, where necessary, give such directions as to the verification of the authenticity of any document as it thinks fit.
(4) This rule shall not apply to any document to which rule 10 or rule 11 applies.
Proof of Foreign Public Documents (Hague Convention 1961)
13.[5] (1) In this rule:
an “apostille” means an apostille issued in pursuance of the 1961 Convention and conforming to the model set out in the annex to the 1961 Convention;
the “1961 Convention” means the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents done at The Hague on the 5th October, 1961;
a “Contracting State” means a State, other than Ireland, which is a party to the 1961 Convention other.
(2) A document which purports to be an apostille duly issued and executed in a Contracting State in accordance with the 1961 Convention is, without further proof, deemed to be such and is admissible as evidence of the facts stated therein unless the contrary is shown.
(3) This rule does not apply to any document to which rule 10, rule 11, or rule 12 applies.
Proof of Foreign Public Documents (other cases)
14.[6] A foreign public document to which the provisions of rules 10, 11, 12 and 13 do not apply may be admitted into evidence on the Court being satisfied as to its authenticity.
Foreign language documents
15.[7] (1) Where:
(a) a document (the “foreign language document”) is not in one of the official languages of the State and
(b) the content of the foreign language document is intended to be relied upon in proceedings in the Court and
(c) the foreign language document is exhibited to an affidavit lodged with the Clerk for the purposes of the proceedings,
then unless the Court otherwise permits or directs:
(i) a translation in writing into one of the official languages of the State of the foreign language document must be produced by a translator who is suitably qualified for the purpose, and
(ii) the translator must exhibit the foreign language document and the original translation to an affidavit which verifies his qualifications as a translator and confirms that the translation is accurate, and that affidavit must be lodged with the Clerk at the same time as the foreign language document, or
(ii) the translator must produce the foreign language document and the original translation at the hearing and must verify on oath his qualifications as a translator and that the translation is accurate.
(2) Sub-rule (1) does not apply to a public document referred to in Article 6(1)(b) of Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 which is accompanied, in accordance with the conditions set out in that Regulation, by a multilingual standard form, provided that the Court considers that the information included in the multilingual standard form is sufficient.
[1] Order 46 rule 9 inserted by S.I. 421 of 2019, effective 2 September 2019.
[2] Order 46 rule 10 inserted by S.I. 421 of 2019, effective 2 September 2019.
[3] Order 46 rule 11 inserted by S.I. 421 of 2019, effective 2 September 2019.
[4] Order 46 rule 12 inserted by S.I. 421 of 2019, effective 2 September 2019.
[5] Order 46 rule 13 inserted by S.I. 421 of 2019, effective 2 September 2019.
[6] Order 46 rule 14 inserted by S.I. 421 of 2019, effective 2 September 2019.
[7] Order 46 rule 15 inserted by S.I. 421 of 2019, effective 2 September 2019.