Update on Manx High Court’s powers to compel evidence

(1) High Court sets aside witness summons issued to serving Manx judge

In Christian v Greenwood (SCP 26/0203 & SCP 26/0204) (07.09.26), the High Court has set aside a witness summons issued by the Court office to a serving Deputy High Bailiff.

DHB Arrowsmith had previously presided over an earlier trial involving the parties.

The Claimant had filed the witness summons, in current defamation proceedings, “seeking that the [DHB] provide evidence as to his recollection of the trial” (§ 4).

Form HC9 (Witness Summons) includes:

“Do not ignore this summons
You must —
• attend court on the date and time shown and/or produce documents as required by the summons; and
• take an oath or affirm as required for the purposes of answering questions about your evidence or the documents you have been asked to produce.

Disobedience of a witness summons is a contempt of court and you may be fined or imprisoned for contempt. You may also be liable to pay any wasted costs that arise because of your non-compliance…”.

Rule 8.34(1) provides that a witness summons: “is issued on the date entered on the summons by the court office”.

The Court office issued the witness summons. Judicial Officer Armstrong ordered that the witness summons be served.

Rule 8.34(3) provides that the Court: “may set aside or vary a witness summons issued under this rule”.

Applying that the witness summons should be set aside, Counsel for the DHB argued that:

“a. As a matter of public policy and judicial independence a member of the judiciary is not a compellable witness in relation to matters arising from the exercise of judicial functions.
b. The evidence sought is unnecessary for the fair disposal of proceedings given that it can be obtained by other means.
c. The Witness Summons is unnecessary, disproportionate and contrary to the overriding objective because:
i. The Deputy High Bailiff has no detailed recollection of specific words spoken; and
ii. The Deputy High Bailiff is outside of the jurisdiction on long standing pre booked travel abroad.
d. The Witness Summons has not been validly served”.

After submissions, the parties agreed that a transcript of the earlier proceedings: “would form the best available evidence”. The Claimant had no objection to the witness summons being set aside.

However, Judicial Officer Armstrong took the opportunity to consider the law in this locally somewhat novel scenario. He noted that argument that:

“17… the issuing of a summons to a member of the judiciary in relation to matters arising from the exercise of their judicial functions offends principles of public policy and judicial independence. Whilst a member of the judiciary is a competent witness, they cannot be compellable.

18. … reliance is placed on the decision of the Court of Appeal of England and Wales in Warren v Warren [1997] QB 488 where, in attending to the question of the compellability of judges to give evidence, Lord Woolf MR held, at 497E, that:

“the exception to the principle of compellability only applies to the judge being required to give evidence of those matters of which he became aware relating to and as a result of his performance of his judicial functions”.

19. It was further stated, at 498B, in no uncertain terms, that “no judge in relation to his judicial functions is a compellable witness”.

The Court reached the following conclusions:

“24. … the reasoning applied in Warren is equally applicable to the Isle of Man… It follows that a member of the judiciary, and I include former members of the judiciary in this, whilst a competent witness, is not a compellable witness of matters which they became aware of as a result of the performance of their judicial functions.

25. This means that a member of the judiciary remains compellable where the evidence sought does not relate to the performance of a judicial function. Where, for example, a member of the judiciary witnesses an assault, the judge could be compelled to give evidence as to the assault because it did not relate to their functions as a judge.

26. Notwithstanding this, where a member of the judiciary’s evidence is vital, it is hoped that they would not allow the fact that they cannot be compelled to give evidence to prevent them from doing so.

27. This is the position for all members of the judiciary, regardless of their seniority.

28. As such, the [DHB] was not compellable and the Witness Summons should not have been issued.

29. As to the question of evidence available from other sources, I find that the Court does have a discretion to set aside or vary a witness summons where the information can be obtained by some other means, particularly if those other means are more appropriate or less draconian.

30. The issuing of a witness summons, and the consequences of a failure to comply with the same, remains a serious and significant step. A witness summons should not be sought, or issued, simply for the convenience of a party who seeks to have someone else provide documentation which they themselves could obtain. The issuing of a witness summons in cases seeking the provision of documentation, or information which is otherwise contained in documents, should only be done where it is necessary for the fair disposal of the matter or to save costs. Consideration should also be given to the sources of the best evidence.

31. As such the Witness Summons should not have been issued.”

The witness summons was, therefore, set aside.

(2) Earlier case-law

Witness summonses, more generally, have been considered by the Manx Court before.

In Hutchinson v Morris (ORD 2012/74) (28.03.13), High Bailiff Needham, as he then was, concluded (at § 31) that the use of a witness summons was: “normally regarded as very much a last resort”.

At § 32, dealing with the issues of confidentiality and privacy, he also cited the following from Matthews and Malek, Disclosure: 

“10.15… Confidentiality and privacy are also relevant discretionary factors for the consideration of the court in deciding whether to uphold a witness summons. The third parties privacy should not be invaded unless that is counterbalanced by the interests of justice in the individual case…. Prima facie, the fact that a third party owes a duty to another not to release a document without his consent, not being privileged, is not an absolute objection to a witness summons, any more than a duty of confidence owed by a witness to another (not amounting to legal privilege or public interest immunity) justifies a refusal to answer a question asked in the evidence…”.

(3) Significant new powers to compel evidence are also on the way

This case also serves as a timely reminder that important new powers for the Manx Court to compel evidence are also on the way.

Clause 33B of the Justice and Home Affairs (Reform and Miscellaneous Amendments) Bill 2025 – which is due to amend the High Court Act 1991 and which has completed its passage through Tynwald – provides a more far-reaching suite of powers to the Court to compel evidence, including new arrest and committal powers.

• For further reading, see Coren Law, Proposed Changes to High Court Act 1991 (01.12.25)

Note for practitioners: The High Court has clarified that Manx judges are not compellable witnesses in relation to the exercise of their judicial functions. Meantime, wide-ranging new powers under the High Court Act 1991 to compel evidence, including new arrest and committal powers, are on the way.

Disclaimer: professional advice should be sought before applying any information in a given case.

For advice on Isle of Man civil procedure, contact Coren Law.

See also Coren Law’s Isle of Man civil procedure portal: Click On | Coren Law.