ORDER 37 : EVIDENCE ON COMMISSION OR BEFORE EXAMINER

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1. An order for a commission to examine witnesses shall be in the Form 29 or 30, and the writ of commission in the Form 31, but instead of a commission the Court or Judge may order the issue of a request in Form 32.

2. Where an order is made to examine a witness or witnesses in any foreign country with which a convention in that behalf has been or shall be extended to Cyprus the following procedure shall be adopted :

(i) The party obtaining such order shall file with the Registrar an undertaking in the Form 33.

(ii) Such undertaking shall be accompanied by-

(a) a request in duplicate in the Form 32, together with a translation of that request in the official language of the country in which the same is to be executed, which translation shall be verified upon oath by or on behalf of the party obtaining the order;

(b) two copies of the specific interrogatories (if any) to accompany the request and a translation of such interrogatories verified on oath;

(c) two copies of the cross-interrogatories (if any) and a translation thereof verified on oath.

[Δ.Κ. 24.10.2017] (iii) The party obtaining an order under this Rule shall also at the time of filing the undertaking mentioned in paragraph (i) of this Rule deposit in Court τριάντα δύο ευρώ (€32) in respect of each witness to be examined. In the event of the expenses incurred by the Colonial Secretary in connection with the request amounting to less than the sum deposited, the surplus will be refunded to the person making the deposit.

(iv) The Registrar shall file a copy-

(a) of the request;

(b) of the specific interrogatories (if any);

(c) of the cross-interrogatories (if any).

He shall seal and forward to the Colonial Secretary-

(a) the request and verified translation thereof;

(b) a copy of the interrogatories (if any) and a verified translation thereof;

(c) a copy of the cross-interrogatories (if any) and a verified translation thereof.

He shall also furnish to the Colonial Secretary the names and addresses of the agents of the parties as given in the undertaking filed pursuant to this Rule.

3. Where an order is made for the examination of a witness or witnesses before the British Consul in any foreign country with which a convention authorizing such examination has been or shall be extended to Cyprus, such order shall be in the Form 34.

4. Where any witness or person is ordered to be examined before any person appointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with an office copy of the writ and pleadings (if any), or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties.

5. The examination shall take place in the presence of the parties, their advocates, or agents, or such of them as shall attend. And the depositions shall not be used at the trial or hearing unless the party on whose application the order was made shall have given notice to all other parties to attend the examination.

6. On an examination taken as aforesaid witnesses shall be subject to cross-examination and re-examination and the depositions shall be taken, as nearly as possible, in the same way as evidence is taken on the trial of an action. The depositions shall be taken down in writing by the examiner, not ordinarily by question and answer, but so as to represent as nearly as may be the statement of the witness and shall be signed by the witness in the presence of the parties, or such of them as may think fit to attend. The examiner may put down any particular question or answer if there should appear any special reason for doing so, and may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the advocates, agents, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question. If the witness refuses to sign his deposition, the examiner shall make a note of his refusal and sign the deposition himself, and the deposition may be given in evidence whether the witness signs it or not.

7. If any witness shall object to any question which may be put to him before an examiner, the question so put and the objection of the witness thereto, shall be taken down by the examiner and transmitted by him to the Court to be there filed, and the validity of the objection shall be decided by the Court.

8. If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if, having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed in Court, and thereupon the party requiring the attendance of the witness may apply to the Court or a Judge for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be.

9. In any case under Rules 7 and 8 of this Order the Court or a Judge shall have power to order the witness to pay any costs occasioned by his refusal or objection.

10. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Court, and there filed.

11. Except where by this Order otherwise provided, or directed by the Court or a Judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court or Judge is satisfied that the deponent is dead, or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence saving all just exceptions without proof of the signature to such certificate.

12. Any party in any cause or matter may summon any person in Cyprus to attend and give evidence or produce any document in his possession before any person appointed to take the examination in Cyprus, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the cause or matter shall be bound on being served with such summons to attend before such person for cross-examination,

13. The foregoing Rules relating to the examination of any person before a person appointed to take the examination shall be subject to the provisions of section 7 of the Civil Procedure Law, Cap. 7, and to such directions as the Court may see fit to make pursuant thereto.

14. All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.