Witnesses are frequently needed in property disputes to establish the facts of a case. But who ought the parties to summon to court to give evidence, and what happens if they refuse to cooperate?

Who can give evidence in court?

There are many things we must look at while bringing someone to court as a prosecution witness. First, let’s understand the classification between the two groups of witnesses:

  • Expert witnesses, as well as
  • Fact-based witnesses

Expert witnesses are those with in-depth knowledge of a certain subject who can give evidence to the court in understanding the case. In the first case, they are called to give evidence and after evidence is given, they need to write an expert report in which they express their opinion on a contentious matter.

Mechanical and electrical experts, for instance, may be relied upon to render an opinion as to whether a heating system is in excellent condition and repair in dilapidations claims.

In contrast, witnesses who can attest to the truth can only offer factual evidence and cannot adduce evidence supporting their opinions on any contentious matters. For instance, a witness as to fact may testify about how the building was set up at the beginning of the lease or whether or not a roof had been patched before the lease began in a dilapidations dispute (in the absence of a schedule of conditions). Anyone with knowledge of the location might be required to give evidence, and they weren’t required to have any formal training.

Can a witness refuse to assist?

Expert witnesses are instructed, therefore the choosing of an expert witness is up to the parties. A party may trust a certain building surveyor because they have already dealt with them, or they may think a certain civil engineer is the finest in their industry. The expert witness, however, is free to decide whether or not to follow directions because they might not have the necessary time or skills to do so. If instructions are disregarded, the instructing party must locate and choose another qualified expert witness who is willing to testify and give a witness statement if necessary. In order to get an expert with enough time to adequately prepare their report, expert witnesses should be informed as soon as feasible.

For completeness’ sake, formal citations requiring attendance at the court hearing and testimony regarding their expert report are typically also sent to expert witnesses for the prosecution based in Scotland.

In a Scottish evidential hearing, witnesses who are located in Scotland cannot decline to testify or give evidence for the prosecution. They may be asked to give prosecution evidence and to appear at a hearing so the judge can hear their testimony. For this reason, formal citations requiring witnesses to appear in court and take an oath for an evidence hearing are sent to those who can attest to their residence in Scotland.

In almost all cases witnesses do cooperate and can be relied upon to attend court. However, in the rare case where a witness refuses to answer questions, and so long as a citation has been served on them, a failure to attend 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?

Most of the time, witnesses cooperate and can be counted on to show up in court. However, in the rare instance where a witness declines to assist and provided that a citation has been served on them, their failure to appear in court may result in a messenger-at-arms of sheriff officer bringing them to court (the Scottish bailiff).