Received A Subpoena And Don’t Know What To Do With It? A 101 Guide To Your Dilemma
What is a subpoena? What do you do when you receive one? Can you avoid/ ignore it?
A brief introduction to subpoena
A subpoena (known as subpoena duces tecum in Latin) is a court document:
- That compels the attendance of the individual or certain individual of a company in court to testify as a witness; and/ or
- That compels the individual or company to produce certain documents to aid the court in determining the outcome of the court proceedings.
Generally, no one is immune from being subpoenaed. Having said that, this does not mean that anyone can abuse it- the court has the power to ensure that this right is properly exercised by anyone who wishes to rely on it.
What happens if you receive one?
- Do not panic.
- Ascertain the content of the subpoena:
- If it is for the production of documents, make copies of the documents and ensure that every document that was asked of you to produce is available on the day of the trial; and
- If it is for you to testify in court, make sure you are courteous and answer all questions without misleading the court even though you find it troublesome and might not want to show up in court at all.
- If you cannot make it or if you cannot produce all documents by the said date, contact the lawyers from the relevant party to seek an alternate date.
- If the subpoena is frivolous (i.e. in your opinion it serves no purpose/ value other than wasting your time), file an application to set aside the subpoena.
Can you ignore a subpoena?
Short answer, NO.
The long answer is this: never ever ignore a subpoena. If you do, the court can actually issue a warrant of arrest against you and haul you over to court.
What are the instances where court refuses to entertain a subpoena application?
In Wong Sin Chong & Anor v Bhagwan Singh & Anor, the court held that while every party to a suit has a right to call witnesses or compel the production of a document, such right cannot be abused to the whims and fancies of the parties in a suit. In the case the court disallowed the subpoena application as:
- There was a delay to the application for subpoena and no explanation was given for the delay;
- The individual (the lawyer who was representing the opposite party) who was subpoenaed to testify does not have the personal and relevant knowledge to assist the court in the said proceedings; and
- The party that applied for the subpoena was intentionally depriving the opposite party of the services of their lawyer in the said proceedings.
In ECM Libra Investment Bank Bhd v Foo Ai Meng & Ors, the court, amongst others, held that an individual can only be subpoenaed to testify if ‘he has seen the facts or know the facts’ i.e. an individual cannot be compelled or rarely can be compelled to testify on matters relating to quantum of damages. They can only be compelled to testify to determine the liability of an individual or a company in a court proceeding. Simply put, an individual who is subpoenaed must be able to assist the court to arrive at the truth of the matter at hand as opposed to merely assisting a party in the said proceedings.
Finally, an individual who is subpoenaed can refuse to attend court to testify or produce documents until and unless a reasonable sum of money is paid to him as a way to recompense him for testifying or producing documents in court.
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