In property disputes, witnesses are often required to establish the facts of a case. But who should parties call as a witness, and what happens if they are unwilling to assist?
Who may be classified as a witness?
There are two broad categories of witnesses:
- Expert witnesses; and
- Witnesses as to fact
Expert witnesses are individuals with technical or specialist knowledge of a particular topic who can help the court better understand the dispute. They are typically instructed to prepare an expert report in the first instance, in which they provide an opinion on an issue in dispute. For example, in dilapidations claims, mechanical and electrical specialists may be relied upon to provide an opinion as to whether a heating system is in good condition and repair.
By contrast, witnesses as to fact can only provide factual evidence and cannot give opinion evidence regarding any disputed issues. For example, in a dilapidations dispute (in the absence of a schedule of condition) a witness as to fact may give evidence of how the building was configured at the start of the lease, or whether a roof had or had not been patched prior to the start of the lease. This evidence could be given by anyone with knowledge of the premises, and they would not necessarily need to have any professional qualifications.
Can a witness refuse to assist?
Expert witnesses are instructed, meaning parties have a choice in who they select. A party may have worked with a particular building surveyor in the past and find them reliable or consider a specific civil engineer the best expert in their field. The expert witness, however, has a choice in whether they accept instructions, as they may not have the time to spend on the matter or they may be unable to assist. If instructions are rejected, the instructing party will need to find and select another appropriate expert witness who is willing to assist. This means expert witnesses should be instructed as quickly as possible to ensure an expert is secured with adequate time to properly prepare their report. For completeness, expert witnesses located in Scotland are usually also served with a formal citation requiring them to attend at the court hearing and speak to their expert report.
Witnesses as to fact located in Scotland cannot refuse to give evidence in a Scottish evidential hearing. If they have relevant knowledge of factual issues in dispute, the first-hand nature of their evidence is such that they can be required to attend a hearing so the judge can hear that evidence. For this reason, witnesses as to fact resident in Scotland are served with a formal citation requiring them to attend at court for an evidential hearing.
In almost all cases witnesses do cooperate and can be relied upon to attend at court. However, in the rare case where a witness refuses to cooperate, and so long as a citation has been served on them, a failure to attend at court may result in a witness being brought to court by a messenger-at-arms of sheriff officer (the Scottish bailiff).
What should a witness do if they receive a citation?
Receiving a citation and attending court can be an unsettling prospect for a witness. However, it is important they take notice of the citation, rather than ignore it. Witnesses should contact the solicitor who has cited them for guidance on what to expect and for support throughout the process.
