Hello, sorry I only saw this after I posted my message on the last question so you can ignore that and I will continue here.
It is correct that it is generally a bad idea to force a reluctant witness to attend because they could end up damaging your case.
If you try and force a witness to attend under a witness order will be treated as your witness and as such you can only ask them non-leading questions - you will not be able to cross-examine them.
As you are trying to cross-examine that witness you have the following options available to you:
· Asking the other party if they are proposing to call that witness. If they are not, the only option will be to seek a witness order
· If you force them to attend under a witness order, and they fail to give the evidence expected of them, you can apply to the tribunal to treat them as a "hostile" witness. If such an application is granted, the witness can be cross-examined with a view to obtaining the evidence you require.
So these are the only available options in the circumstances.
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No, you cannot force the other side to provide a witness if they do not want to - they decide who to call and whether to call anyone at all. So you cannot force a witness to appear for the other side, you can only make an application for a witness to appear for you. Also when you make an application you can prevent a judge from refusing it - all you can do is make the application and the reasons for calling the witness but you can never guarantee that such an order will be granted
yes they need to be non-leading questions, so nothing that would try and direct the to a specific answer. So basically open questions where they choose the answer freely. You would not know if someone is hostile witness until they have provided their evidence, only then you can consider making such an application. Can't really give you specific for wording the application unfortunately as it would depend on the individual circumstances and you are not expected to be overly legal with it anyway as you are not qualified legally and they know that, so you basically need to say why you believe they are hostile (i.e. not providing the necessary evidence) and that you seek permission for you to cross examine them instead
you have two options - the witness should provide their evidence in writing fist in the form of a witness statement - you can then see if they are going to be hostile and make the application before the hearing. The other is to wait until the hearing and see what happens there, then you can make the application following the hearing but that would then require a new hearing and a new order to be called in so the first one is much safer.
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