Witnesses in civil lawsuits should be adequately compensated

Have you ever been summoned as a witness in a civil lawsuit to which you are not a party where you end up having to attend for one or more court sittings to give evidence?

Time and again in many civil lawsuits, people get called up as witnesses to give evidence in litigation where they have no interest in the outcome of the proceedings. For many giving evidence in court entails loss of income and taking time off from work attending court sittings. Recently a colleague of mine was summoned as a ‘neutral’ witness and asked to present loads of documents by the party summoning him. In doing so, my colleague had to go through numerous documents including lengthy e-mail correspondence, spending considerable time and resources in preparing the relevant documentation including making copies of the same to present during the course of his evidence. And yet my colleague was not compensated for all the work he did and for the time spent in court.

Not many people are aware that the aw in the form of the Witness (Fees) Ordinance (Chapter 108 of the Laws of Malta) (hereafter ‘Cap 108’) does actually provide for fees payable to witnesses. There is however one big glaring shortcoming in Cap 108. The fees due to witnesses are still fixed at rates that go back light years with highest fee being the princely sum of 1.16c due to ‘witnesses called to give evidence on scientific matters’ before the courts. A read through of Cap 108 reveals some interesting measures that are in place.

Article 3 refers to two separate schedules of fees to Cap. 108 due to witnesses summoned respectively before the Superior Courts, and before any other court. The fees payable in the case of summons before a superior court vary from a minimum of 23c to a maximum of 1.16c with additional payment due if the witness is kept to give evidence after 1pm varying between a minimum of 6c to a maximum of 12c per hour or part thereof. If a witness is summoned before a court other than a superior court then the witness is entitled to a fee of 6c unless he is summoned to give evidence on scientific matters. Amazing but true.    

Article 4 states that witnesses are entitled to travelling expenses ‘for going to and returning from the place where they are to give evidence’. This however is qualified by the requirement that the witness travels ‘by the cheapest means of conveyance’, whatever that means. Article 5 makes provision for those travelling from Malta to Gozo and vice-versa to give evidence, stating that they are entitled to ‘expenses for board and lodging actually incurred by them in staying in Gozo or in Malta’. Though this rarely if ever arises, the fees again are hopelessly outdated. I doubt if the current fees would even cover the cost of a ftira let alone board and lodging. Incidentally, a witness when filing an application to the Court Registrar for the issue of a taxed bill detailing the payment of the fees due to him for giving evidence, is required to pay court registry fees that exceed the maximum of any of the fees payable under Cap. 108!

An interesting measure is that under Article 9, whereby the Court in granting an application to summon a witness may order the party summoning the witness ‘to make a sufficient deposit to cover the fees and expenses due to witness’ and if such an order is given by the court, the witness may refuse to give evidence until the deposit is made. Such a measure might make sense if the fees reflected current realties, however no one in his right mind will bother requesting such deposit on the basis of the fees currently payable.

One thing is evident. Witnesses should be entitled to adequate compensation and clearly the fees payable under Cap. 108 need to be updated in short order to reflect current realties. Somewhat surprisingly, the issue of adequate compensation to witnesses has never really been given the importance it deserves. The amendment of Cap 108 to reflect the payment of adequate fees to witnesses should serve to curb in some instances the cavalier approach by some in summoning witnesses needlessly to give evidence in court when certain evidence can be provided by other more practical means.