Evidence Out of Court
Evidence by Commission
An application for evidence on commission is brought by way of a motion on notice to the other party. It should be based on an affidavit, justifying the application. The court may grant permission where it is necessary. The onus is on the party making the application to show why this is the case.
The court will be more willing to afford a defendant the right to have a witness give evidence on commission where they are not available or only available at great expense In the case of the plaintiff ,they have chosen the tribunal so a stronger case is required.
Evidence on commission may be taken where a person is ill abroad or it is otherwise difficult for him or her to attend proceedings. Where for example a witnesses might not otherwise be able to attend, but it would do injustice to the defendant, not to be able to cross examine and have the party in court the commission may be refused. The court retains discretion.
Criteria
Where there are disputed facts, the court places great emphasis on the  personal attendance cross-examination and observation of the demeanour of the witnesess. Taking evidence on commissioning prejudices this position.The interest of both parties must be taken into account.
- Evidence on commission must be necessary for the proper determination of the issues.
- The importance of the witness and his or her evidence is a factor
- Whether the witness’s evidence is likely to be disputed
- whether the refusal makes the plaintiff or defendant’s case impossible or much more difficult
- whether other witnesses can give evidence concerned
- whether the evidence is that the plaintiff or defendant or a witness in the case of a witness abroad, the costs and inconvenience of coming to the jurisdiction
Also relevant are other factors such as
- danger to health
- threats to life and limb
Examination Out of Court
The Court may, in any cause or matter where it is necessary, make an order for the examination upon oath before the Court or any officer of the Court, or any other person, at any place of any witness, and may allow the deposition of such witness to be adduced in evidence on such terms as the Court may direct. If the Court shall so order, there shall be issued a request to examine a witness in lieu of commission; a prescribed form shall be used.
Where an order is made for the issue of a request to examine a witness in a foreign country, with which a Convention has been entered, the party obtaining such order shall file an undertaking in the central office in the prescribed form. It shall be accompanied by
- a request in a prescribed form, with variations as may be directed in the order for its issue,
- together with a translation of such request into the language of the country in which the same is to be executed;
- a copy of the interrogatories if any, to accompany the request and a translation thereof;
- a copy of the cross-interrogatories if any and a translation thereof.
An order for the examination of a witness before the Irish Consular authority in any foreign country with which a Convention in that regard has been made shall be in the prescribed format.
The order specifying that evidence is to be taken on commission must specify a person who may be a barrister or other officer of the court, to take evidence by commission, the time place and when evidence is to be taken. Where an order for examination of a person before any officer of Court, or other person appointed is made, the party taking the examination is to be furnished with a copy of the summons, and pleadings, and other documents necessary to inform him of the issues between the parties.
Procedure
Examination takes place in the presence of the parties and their representatives. The function of the commissioner is to record the evidence given. The evidence must be taken and transcribed in the presence of the Commissioner
The examination shall take place in the presence of the parties, their counsel, solicitors, agents. Witnesses shall be subject to cross-examination and re-examination.
A person summoned by subpoena to attend for examination shall if he refuses to attend, be sworn or answer a lawful question, may be certified by the examiner and the party may be required to attend on foot of an order made, on ex parte application or application on notice to be sworn and answer the question.
Depositions before an officer of Court or other person appointed shall be taken down in the presence of the examiner, so as to represent the statement of the witness. When completed it shall be read over to the witness and signed by him in the presence of the parties or such of them as may think fit to attend. The examiner may sign the statement if the witness does not do so.
The examiner reads over the statement to the witness and asks him or her to sign it. Alternatively the evidence may be recorded by the stenographer. It is then transmitted to the High Court Central Office for filing.
The evidence taken on commission is only admitted once offered into evidence. It is not evidence at trial without the consent of the party against whom it is offered unless the court is satisfied the witness concerned, is dead, beyond the jurisdiction is unable from sickness or other infirmity to attend the trial. In this case it is admissible in evidence.
Deposition Questions
The Commissioner may put questions to the witness as to the meaning of any answer or other matters which arise. The Commissioner administers the oath.The witness is examined cross examined and re-examined in the same manner as court proceedings. The examiner has does not have the functions of the judge, in relation to the rulings, questions and evidence.
The examiner may put any question to the witness as to the meaning of an answer, or as to any matter arising in the course of the examination. Questions which may be objected to, shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitor or parties, and refer such statement in the depositions. He shall not have the power to decide upon the materiality or relevancy of a question.
If a witness shall object to any question which may be put to him before an examiner, the question and the objection, shall be taken down by the examiner, and transmitted to the Central Office. The Court shall determine the validity of the objection.The Court may order the witness to pay costs occasioned by his refusal or objection.
Filing
Where the examination has been concluded, the depositions authenticated by the signature of the examiner, shall be filed in the Central Office. The person undertaking the examination may and shall if necessary make, a special report to the Court touching the examination, the conduct or absence of any witness or other person and the court may direct such proceedings and make such order upon the report as it may think just.
Except where otherwise provided or directed by Court, no deposition shall be given in evidence at trial without the consent of the party against whom the same may be offered unless the Court is satisfied that the deponent is dead, beyond the jurisdiction or unable from sickness or other infirmity to attend the hearing. In these cases, the deposition certified under the hand of the person making the examination shall be admissible in evidence saving all just exceptions without proof of the signature to such certificate.
EU Regulation re Taking Evidence
The EU Regulation 1206/2001 facilitates cooperation between the Member States of the European Union in relation to taking evidence in civil and commercial matters. The Court, where the regulations apply, may on an application of any party, order the issue of a request to a Court of another State to take evidence or to a central body or competent authority directed by the State concerned, to take evidence directly in that State.
Before an order is made, the Court may require a party to file a completed draft form required by the regulations including questions sought to be put to the witness, statement of facts about which the witness is sought to be examined or documents or objects sought to be inspected by the opposing party together with a certified translation thereof into the relevant official any language.
Where an order is made by the Court of its own motion, it may direct the parties or any of them to reimburse any fees or costs provided for in the regulation, pay any advance or deposit referred to.
An application shall be made by a notice of motion granted on the applicant’s affidavit.