Sir John Donaldson sets out the considerations when a witness order is sought in an employment dispute before the court. He said: ‘We are quite clear that tribunals have a discretion in deciding whether or not to issue witness orders. There is no automatic right to witness orders. But that discretion must be exercised judicially and it must be exercised with due regard to the fact that a tribunal is dealing with litigants in person who may not have the benefit of any advice. . It seems to the court that there are only two matters of which tribunals should be satisfied before they issue a witness order. The first is that the witness prima facie can give evidence which is relevant to issues in dispute. For that purpose they will no doubt wish to ask the applicant what evidence can be given by the person who is the proposed subject of the witness order. We do not suggest that the tribunal should ask the applicant to give a full proof of that evidence, but applicants should indicate the subject matter of the evidence and show the extent to which it is relevant. The second matter of which the tribunal should be satisfied is that it is necessary to issue a witness order. In the present case the tribunal seem to have taken the view that it would be wrong, indeed, in their letter of March 11, 1974, they say that it would not be possible, to issue a witness order, unless they could be satisfied that the person concerned was unwilling to attend voluntarily. We think that this policy is erroneous to the point of amounting to an error of law. . . We do not seek in any way to fetter the discretion of tribunals. What we are saying is that tribunals should be satisfied that the witness can give relevant evidence and that it is necessary to issue a witness order. But if they are satisfied on both those matters they ought to issue such an order.’
Judges:
Sir John Donaldson
Citations:
[1974] ICR 559
Jurisdiction:
England and Wales
Cited by:
Cited – Merseyside Tec Limited v Noorani CA 21-Nov-1997
Application for leave to appeal. The respondent had said that the EAT had erred in overturning the tribunal chair’s decision not to issue witness summonses.
Held: Leave was granted. . .
Cited – Noorani v Merseyside TEC Ltd EAT 17-Jun-1997
The claimant appealed against the dismissal of his complaint of race discrimination saying that the tribunal had erred in not issuing a witness summons. The tribunal had said that the potential evidence was not relevant.
Held: There had been . .
Cited – Noorani v Merseyside TEC Limited CA 19-Oct-1998
The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 05 May 2022; Ref: scu.280439
