Understanding Subpoenas: Subpoena in Civil Litigation

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Recent reports of the ongoing 1MDB criminal trial regarding a witness that cannot be located¹ highlights the importance of subpoenas in ensuring witnesses attendance in court proceedings.

Subpoenas play a crucial role in civil litigation in ensuring that relevant evidence or testimony are made available to the court.

In Malaysia, the issuance of subpoenas is primarily governed by the Rules of Court 2012², which outlines the procedures and requirements to compel witnesses to either attend court to testify or produce documents.

What is a Subpoena?

A subpoena is a document issued by the court to compel an individual to attend Court to either testify as a witness or produce specific documents.

There are three types of subpoenas in civil litigation:-

1. Subpoena to testify – requiring a witness to attend court and give oral evidence.
2. Subpoena to produce documents – requiring a witness to attend court and produce the document sought.
3. Subpoena to testify and produce documents – requiring a witness to attend court to give oral evidence and produce the document sought.
   

Issuance and Service of a Subpoena

Any party in a civil case may apply for a subpoena by filing the necessary Forms³ into court.

Once the subpoena is sealed by the Court, the subpoena must be served on the named witness by way of personal service within 12 weeks after the date the subpoena is issued⁴.

Consequences of Non-Compliance

If a witness who has been properly served with a subpoena fails to comply with it, the court may take the following actions:-

• Compel attendance: The Court may issue a warrant of arrest to secure the witness’ attendance in Court.
• Contempt: The witness may face contempt of Court which may lead to fines or imprisonment.
  

How Long Does A Subpoena Last?

A subpoena remains in force until the conclusion of the trial where the attendance of a witness is required⁵.

If the subpoenaed witness has finish giving his evidence in Court, the witness no longer needs to attend court.

Further, a subpoena witness is entitled to reasonable compensation to cover his expenses in attending, remaining and returning from court.

What do I do when I received a subpoena?

When you receive a subpoena, DO NOT IGNORE IT. Immediately contact the solicitors who issued the subpoena right away to find out how you can assist.

Practical Considerations For Lawyers

When issuing a subpoena, do consider the following:-

1. Identification: Identify if you need to issue a subpoena to either compel attendance for any of your witness or compel production of a particular document in court.
2. Type of Subpoena: Ensure that the right type of subpoena is issued to the witness.
3. Timely Issuance: Ensure that subpoenas are issued in advance to avoid delays in court proceedings.
4. Proper Service: Ensure that the subpoenas are served in accordance to the provisions in the Rules of Court.

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DISCLAIMER
This article is for informational and educational purposes only and should not be considered legal advice. For personalized guidance and advice, please consult a qualified lawyer.

1. The Star Article titled “Witness cannot be located” by Nurbaiti Hamdan, 21 Feb 2025 ↩︎
2. Order 38 Rule 14 Rules of Court 2012 ↩︎
3. Form 63, 64 or 65 AND Form 66 Rules of Court 2012 ↩︎
4. Order 38 Rule 18 Rules of Court 2012 ↩︎
5. Order 38 Rule 19 Rules of Court 2012 ↩︎