Parties to litigation in The Bahamas must use special procedures to compel testimony or document production by non-party witnesses. The Registrar of the Supreme Court or a judge may issue writs of subpoena ad testificandum or writs of subpoena duces tecum, which require a non-party witness to attend court for the purpose of giving evidence. (Rules of the Supreme Court, O. 32, r. 7.) These writs must be personally served on witnesses in accordance with the ordinary rules for service of process. Writs of subpoena must be served within 12 weeks of their issuance by the Registrar or judge. (O. 38, r. 17.)
Subpoena ad testificandum
A subpoena ad testificandum commands a person who is not a party to the lawsuit to appear in court to testify as a witness, usually as to that person's personal knowledge about facts at issue in a lawsuit.
Subpoena duces tecum
A subpoena duces tecum commands a person to produce documents or evidence in court. The writ lists the specified evidence that the party must produce. Subpoenas duces tecum may be used to ask entities to produce business records, meaning records created during the ordinary course of business, or it may be used to ask an individual person to produce evidence.
Form of Writs of Subpoena
Writs of subpoena must follow the format prescribed by the Supreme Court. (O. 38, r. 14.) Writs of subpoena ad testificandum may include the names of more than one person. (O. 38, r. 15.)
Problems with Third-Party Witnesses
Litigants have some common, recurring problems when they use third-party witnesses to prove their claims. You may find that the witness cannot be located and thus cannot be personally served. You may have to hire an investigator to look for the person. The witness may have left the country, temporarily or permanently making service extremely difficult and expensive or even impossible. If you are seeking the production of documents of a business you may find that the documents were destroyed or that the business is bankrupt or no longer existing. Finally, a witness may decide not to attend court even when ordered to do so. In all these cases, your attorney can advise you how to find solutions or overcome these obstacles.
To find out more, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.