Costs of producing documents under a subpoena

23 April 2009

Contacts

In a Johannesburg High Court judgment delivered in Laskarides and another v German Tyre Centre (Pty) Limited (in liquidation) the court found that a party causing the subpoena to be issued should tender the reasonable out-of-pocket costs and expenses of a witness subpoenaed for the purposes of producing, compiling, copying, printing and collating documents, material and information. If there is no tender of such costs, the witness cannot be said to be in wilful default and will not be in contempt of court for failing to produce the documents.

John Laskarides, the managing director of Bandag Southern Africa (Pty) Ltd, was subpoenaed to attend an insolvency inquiry and to produce documents. He applied to set aside the subpoena. One of the grounds relied upon for challenging the subpoena was that the costs for copying the documents had not been tendered.

The court was specifically asked to rule on the question of who should bear the costs of producing, copying and collating the documents requested under the subpoena. The facts of this case demonstrate how important this question can be in some instances. Mr Laskarides said in his affidavit that the documents he would have to produce under the subpoena would amount to approximately 42 000 pages. If one used the tariff in the Court Rules, this would equate to a potential claim at R1.25 per page of R52 500. The subpoena was accompanied by a payment of R75, which was only intended to cover the cost of travelling to the inquiry. The court stated that it was important to decide this question of costs, particularly because the law was silent on the point.

The court’s motivation for finding that the copying costs should be tendered was that a payment or tender in advance is designed to ensure that a witness is not financially embarrassed in having to incur expenses, when the witness may not be in a financial position to bear such expenses. In addition, the court held that there is a principle in our law that no witness is obliged to incur unreasonable expenses and is to be indemnified for said expenses.

Bankers are often subpoenaed to produce documents at insolvency enquiries or for court proceedings. They will be now able to insist on advance payment of the costs and expenses, both for material costs and time expended in the production, compilation, copying, printing and collation of all documents, as well as for material and information required to be produced by the subpoena, however the information is stored, retrieved, printed and made available. If the party requesting the information by way of subpoena is required to bear the cost of producing the information, such party is likely to be more specific about the documentation requested, so as to ensure that unnecessary costs are not incurred.

This judgment will reduce the risks of subpoenas being abused.

Norton Rose South Africa (incorporated as Deneys Reitz Inc) joined Norton Rose Group on 1 June 2011.