Subpoena Duces Tecum in UK Law

I note that the general practice in international law is that the courts of a country only have power to summon before them persons who accept service or are present within the territory of that country when served with the appropriate process. Against this background I would not expect section 25(1) to have empowered the English court to haul before it persons who could not be served with the necessary summons within the jurisdiction of the English court.

But the foundation of the rule is the assumption that eventually the testimony will be available either in an action already in progress or in an action which will be brought later. Here if the information in the possession of the Respondents cannot be made available by discovery now, no action can ever be begun because the Appellants do not know who are the wrongdoers who have infringed their patent.

They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.

The request for the production of documentary evidence by the two R.T.Z. companies must not only satisfy the requirements of subsection (3) which exclude fishing discovery, but also the stricter requirements of subsection (4). Classes of documents provided the description of the class is sufficiently clear, may be required to be produced on subpoena duces tecum.

Whatever may be the origin of the present rules, there are in my view clear distinctions to be drawn between an order for disclosure made against a third party and a witness summons to produce documents. An order for disclosure normally directs the person to whom it is addressed to carry out a reasonable search for documents in his possession falling within classes which are often broadly described and to list them for the information of the parties to the proceedings.

A witness summons, unlike an order for disclosure, requires the person to whom it is addressed to attend court on a specified occasion and to produce to the court the documents to which it refers. Anything less is unfair to the witness; it also makes supervision and enforcement by the court extremely difficult, as Miss Reffin was forced to admit. Ideally each document should be individually identified, but I do not think it is necessary to go that far in every case.

First, the third party must have become mixed up in the transaction concerning which discovery is required. Secondly, the order for discovery must not offend against the "mere witness" rule, which prevents a party from obtaining discovery against a person who "will in due course be compellable to give that information either by oral testimony as a witness or on a subpoena duces tecum": see Lord Reid at p. 174.