Written by Andrea Hiestermann
30 May 2023
What is a subpoena?
A subpoena duces tecum, generally referred to as a subpoena, is a legal document instructing someone to either appear in court personally or bring information or documents on a specific date and time and at a specific court. It is issued by the clerk or registrar of the court on behalf of someone who requires a witness to give evidence.
Are There Different Subpoenas?
There are two subpoenas, namely:
- Subpoena Duces tecum – means ‘you shall bring with you”,
- Subpoena Ad Testificandum – means ‘to testify’.
The difference between the two is the reason for the subpoena:
- The first subpoena is for the person to bring certain documents to court on the specified date, usually in instances such as providing documentary evidence or documents that have not been supplied despite requests.
- The second one is for the person subpoenaed to be present personally at court on the specified date; this is usually in instances where the person has not attended the previous court dates or for witnesses to attend to testify at court.
How Is It Served?
Firstly, all the relevant information will be inserted into the subpoena, such as the matter’s details, the parties’ details, and the person’s home or work address.
The subpoena will then be stamped and approved by the registrar of the court; once this has been done, it will then be taken to either the nearest Police Station of the person who is being subpoenaed or the Sheriff within the jurisdiction of the person who is being subpoenaed.
The police station or sheriff will go to the person’s address, serve the subpoena on them personally, explain the document’s content to the person, and ask them to sign the subpoena.
Once this is done, the documents go back to the person or their attorney, who will bring the signed subpoena or sheriff’s return of service to the next court date as proof that the subpoena was served.
Can I Avoid Being Served?
No, you cannot; if the sheriff or police have tried going to the address on the subpoena and you refuse the officer or sheriff entry, or you refuse to sign the documents, the officer or sheriff will write a report stating so; however the force and effect of the subpoena will remain, and you may be issued a warrant of arrest at the next court date.
If the address is incorrect, the report will state that the subpoena has no force or effect unless the incorrect address was deliberately given in an attempt to refuse service.
I Got Served with a Subpoena, What Now?
If you have been served with a subpoena, read the contents and ensure what type of subpoena it is: to either produce documents or for you to attend personally. The subpoena will state clearly what it is for.
If you are unsure, you can always seek legal assistance to peruse the documents and explain the content and meaning to you.
Once you know what is required from you, attend court on that allocated date.
What Will Happen If I Cannot Go to Court?
If you cannot attend court or refuse to attend court, you may be held in contempt of court, with either a fine or imprisonment, and a warrant of arrest may be issued.
If you cannot be present on the day, a valid reason needs to be provided, such as being out of the country or ill and in hospital. You will need to provide proof of this.
It is also recommended that you inform the court of your inability to attend in advance by either informing the parties to the dispute or by writing a letter to the court, setting out your reasons as to why you cannot attend,
If you suspect you have been served with a subpoena and are unsure how to proceed, do not hesitate to contact one of our branches to schedule an appointment with one of our attorneys.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
