[Website Note:
This review of the role of the Admiralty Examiner in past and present times is offered not as a formal research paper, but merely as a note for interest. It thus has no references or sources quoted. It is however useful in that it shows how the role of the examiner has evolved from one of collecting evidence under oath from people on the move, to one whereby the examiner attempts to expedite matters. This evolution shows how the function of different officers can change over time with the advance of modern technology and new economic imperatives. Nowadays it is not too difficult to get someone to the other end of the world to give evidence, nor is it too difficult to bring them into the court room via satelite link-up where this is allowed. On the other hand, the deveopment of commerce and international trade has grown to the extent that matters cannot always proceed to trial, and where there is the chance of this occuring there is the need understand the issues in order to curtail proceedings. This development is most noticeable in the piece on the US Federal Procedure.
Researcher: Robert Wilson, to whom comments are invited by e-mail]

THE ADMIRALTY EXAMINER
Introduction
In Admiralty, witnesses could be orally examined out of Court, and their deposition reduced to writing, before either the Admiralty Registrar, the Assistant Admiralty Registrar, an Examiner in Admiralty, or a Commissioner appointed under a commission for the examination of witnesses. This practice dated back to a time when written evidence, extracted from the Admiralty Registry, was the only evidence used in matters heard in the High Court of Admiralty. Later, the various Admiralty Court statutes allowed oral evidence to be heard in Court. These developments did not however effect the old practice as they merely provided an alternative procedure.

In former times, the Registrar of the Court of Admiralty, or one of the Surrogates, always took the depositions. This procedure later became impossible to administer, and Examiners and Commissioners were appointed to act as deputies of the Registrar.

Development of the office
The Admiralty Court Act, 1840, provided that the Court of Admiralty could issue one or more special commissions to some person, being an advocate of the Court of Admiralty of not less than seven years standing, or a barrister of not less than seven years standing, to take evidence by word of mouth upon oath, which every such Commissioner was empowered to administer, at such time or times, place or places, and as to such fact or facts, and in such manner, order and course, and under such limitations and restrictions and to transmit same to the Registry of the Court, in such form and manner as was directed in the commission.

Furthermore, the Commissioner was to be attended, and the witnesses examined, cross-examined, and re-examined by the parties, their counsel or agents, if such parties or either thought it fit to do so. It was further provided that the Registrar could, with the permission of a judge, appoint such and so many proctors of the Court of Admiralty as were deemed necessary to be Examiners.

The Admiralty Court Act, 1854, provided that it was not necessary to sue out any commission for the examination of any witness in any matter, suit or proceeding in the Court of Admiralty. Furthermore, any Examiner appointed by order of the Court was to have the same power of administering oaths as Commissioners appointed under commissions issued by the Court of Admiralty for the examination of witnesses. The Admiralty Court Act, 1861, provided that any advocate, barrister, proctor, attorney, or solicitor could be appointed an Examiner of the Court of Admiralty. The powers of Examiners were not affected by the rules contained in the schedule to the Judicature Act, 1875, whereby the High Court of Admiralty became part of the High Court of Justice.

It must be noted that Examiners had been appointed by the Lord Chancellor to perform the duties formerly performed by the Chancery Examiners, and to take examinations in actions in the Kings Bench Division. These officials did not however act as Examiners in Admiralty actions. There were usually several Examiners in Admiralty resident in London, and where the witnesses could be produced for examination there, it was usually convenient to have the examination taken before one of them.

The 1883 Rules contained various provisions regulating the examination out of Court of witnesses in actions, and with regard to the admission at the hearing of the evidence of the witnesses so examined. These rules were however not required to be followed in Admiralty actions, as commissions were issued out of, and filed in, separate offices and registries. Evidence taken before either the Admiralty Registrar, Assistant Registrar, Examiner or Commissioner was regarded as admissible as evidence in the suit for all the purposes for which the same evidence, if they have been taken before the judge orally in court, would have been admissible. It was never necessary that proof should be adduced at the hearing of such actions that the witnesses examined by deposition were out of the jurisdiction or unable to attend the hearing. It was however always open to any party in the action to apply to the Court or a judge to order that a witness who had made a deposition in the action should attend for examination at the hearing. Consequently, the Rules of 1883 did not appear to alter the practice in Admiralty actions, and since October 1883 the old practice was followed in all actions in which witnesses were examined out of Court.

Practice of the office
As such, a particular practice prevailed in respect of Admiralty actions. In the first instance, where it had been determined by Order of Court, or by consent of the solicitors, that the witnesses, or any of them, should be examined out of Court, the witnesses to be so examined could, without any further order, be produced before an Admiralty Examiner within three miles of the General Post Office, London. A fee of 5s (five shillings) was payable on every memorandum of appointment for an examination to be taken before an Examiner. The solicitor who produced the witnesses would make an appointment with an Examiner fixing the time and place of the Examination, and would serve notice upon the adverse solicitor at least a day before the time fixed for the examination. The notice would state the title, number and folio of the case, the name and address of each of the witnesses, the name of the Examiner, the name of the interpreter, if any, and the day, hour and place appointed for the examination. A copy of the notice served on the adverse solicitor was left with the Examiner. It would of course have been irregular to have the examination taken before an Examiner who was a solicitor in the case, or in partnership with a solicitor in the case.

Secondly, where a witness was to be examined before an Examiner at a distance greater than three miles from the General Post Office, London, an Order of Court had to be obtained. The order named the Examiner before whom the examination was to be taken, and fixed the time and place for the examination, or directed that the examination be taken before a District Registrar. Where the examination was taken before an Admiralty Examiner, an office copy of the order was to have been obtained from the Registry and taken to the Examiner as his warrant for proceeding with the examination.

If it was not convenient to produce the witnesses before one of the Admiralty Examiners, or before a District Registrar, application had to be made by the solicitor of the party for an order for the examination of the witnesses before a Commissioner in terms of the 1883 Rules. On making the order, the judge would nominate a fit person to act as Examiner or Commissioner, and if he ordered a commission to issue would fix the time and place for opening the commission. In places where a commission had been ordered to issue, the solicitor having obtained the order would file in the Registry the relevant documentation, which would be impressed with a stamp of 5s (five shillings), and which would state the name of the Commissioner and the time and place appointed for opening the commission. The documentation would be filed with the usual minute and a printed form of commission would be left in the registry.

The commission was prepared in the Registry and issued as soon as it was filed and examined. The commission was issued under the seal of the Court and was addressed to the Commissioner. The commission named the action in which the witnesses were to be examined, and authorised the Commissioner, in the presence of the solicitors in the action, or in the presence of their substitute, or otherwise, to swear the witnesses who were to be produced before the Commissioner for examination in the case, and cause them to be examined and their depositions reduced to writing. The commission further commanded the Commissioner upon the examinations being completed to transmit the depositions and the whole proceedings together with his commission to the Registry.

The examination was conducted in the same way whether it was held before one of the Admiralty Examiners or before a Commissioner. Sometimes, under the old practice, an office copy of the pleadings was obtained for the use of the Examiner or Commissioner in order that he might know what the matters in issue were. It was also the practice of some of the Examiners in London to obtain from the Registry the original pleadings, which were under the old practice filed there. This was a remnant of the practice whereby witnesses were examined according to the pleadings.

When necessary, the Examiner or Commissioner could adjourn the proceedings. Furthermore, if the party producing the witnesses attended with his witnesses at the time and place appointed, and the adverse party refused or neglected to attend, the Examiner or Commissioner could, if he thought it fit, allow the examination to proceed.

The Examiner or Commissioner administered the usual oath to each witness, and when it was necessary to employ an interpreter, he administered the proper oath to the interpreter. The examination in chief, cross-examination and re-examination of the witnesses was generally conducted on behalf of the respective parties by their counsel or solicitors. The Examiner or Commissioner could furthermore put any question to the witnesses for purposes of eliciting the truth.

Prior to the enactment of the Judicature Act 1873, and up to the enactment of the 1883 Rules, the judge could on application of either solicitor in the action, at the expense in the first instance of the party on whose behalf the application was made, direct that the evidence of the witnesses be taken down by a shorthand writer or reporter, who was sworn faithfully to report the evidence. A transcript of the writer or reporter's notes, which was certified to be correct, was admitted to prove the oral evidence of the witnesses. This practice continued in Admiralty actions, notwithstanding the enactment of the 1883 Rules, so that evidence taken down by a shorthand writer in the presence of the Examiner or Commissioner, and a transcript of such evidence which was certified by the shorthand writer, was apparently admissible to prove the evidence of the witnesses.

If a shorthand writer was not employed to take down the evidence, the Examiner or Commissioner himself could take down the evidence in a narrative form, and when the examination of any witness was completed, the Examiner or Commissioner would read over the deposition to the witness, who was required to sign same. The Examiner or Commissioner then certified at the foot of the deposition that it had been read over audibly and distinctly to the witness, and the witness would acknowledge same to be true. If the witness refused to sign his deposition, the Examiner or Commissioner would certify at the foot of the deposition that the witness had so refused and that the deposition was in accordance with the evidence given by the witness. The deposition of the witness could thereupon be used at the hearing of the case. If any question was put to a witness and was objected to, the question and answer was to be written down separately, and a note made of the objection. Furthermore, any special matter which arose in the course of the examination could be set forth in the return made by the Examiner or Commissioner.

Admiralty Examiners and Commissioners were entitled to take for their own use those fees authorised to be taken by a schedule of fees annexed to the Order in Counsel of 29 November 1859 which approved the Admiralty Court Rules, 1859.

Modern practice in the United Kingdom
In order to dispose of High Court actions fairly and expeditiously, Rule 2A of Order 38 of the Supreme Court Rules was designed to reduce the element of surprise and identify the real matters at issue, both to the
parties and to the judge before the hearing, and to promote settlement by allowing the parties the opportunity of seeing each other's case before trial was reached. It was intended that the exchange of witness statements should be mutual as in the case of the exchange of experts' reports to ensure that no party gained an unfair advantage.

As such, in any action in the Admiralty Court, a party may be ordered to serve on other parties written statements of all evidence which the parties intend to lead on issues of fact at the trial. If a party fails to comply with a Court Order, he may not adduce evidence to which the direction applies without the leave of the Court. Directions may be different for individual witnesses and different facts, and the Court may require the statement to be signed or require that it be filed with the Court. If a witness to whose evidence a statement relates is subsequently not called, and unless notice has been served under the Civil Evidence Acts 1968 and 1972, no other party may put the statement in evidence at the trial. Unless a Civil Evidence Act notice has been served in relation to the statement or the Court so orders, where a witness is called at a trial a party may not, without the consent of the other parties or leave of the court, lead evidence not included in the statement. The Court has the power to direct that all or part of the statement should stand as the witness's evidence in chief, and any party may put all or part of the statement in cross-examination of the witness even if it has not been referred to in the evidence in chief. It is specifically provided that the procedure for the exchange of witness statements should not affect the laws relating to privilege.

The exigencies of the sea-faring life may in any event require the examination of one or more witnesses before the hearing of an action. In any cause or matter the Court may order the examination of any person on oath at any place before a judge, officer or examiner of the Court or some other person. Where the person being examined is out of the jurisdiction, the examination may be on oath or affirmation or otherwise in accordance with the procedure adopted in the country where the examination takes place.

In terms of Rule 30 of Order 75 of the Supreme Court Rules, the examination may be ordered to be before a judge sitting in court as if for the trial of the cause or matter, without that cause or matter having been set down for trial. The examination may also be before an Examiner in Admiralty, of whom there are at present three in England, appointed by the Lord Chief Justice, or if the parties consent, the evidence may be taken as if before an Examiner in Admiralty but without one actually being appointed or being present. In any action where preliminary acts must be filed, no order may be made authorising an examination of witnesses before the preliminary acts have been filed, unless the Court otherwise directs.

The evidence of the witnesses examined is taken down by a shorthand writer appointed for the purpose, or mechanically recorded, and the signed transcript is filed with the Admiralty and Commercial Registry or the District Registry as the case may. The evidence so filed does not automatically become evidence in the action, but may be admitted if the requirements for its admissibility are fulfilled. These include consent by the parties, or if it is proved that the witness is dead or outside the jurisdiction, or unable from sickness or infirmity to attend the trial.

Modern practice in the United States of America
The right to take depositions de bene esse was generally conceded and universally accepted in Admiralty. After the unification of the Civil and Admiralty Rules, provision was made as a temporary measure for taking depositions de bene esse. The purpose of the de bene esse statute was to allow the Plaintiff to take depositions without leave of court within
20 days after commencement of the action. This was because of the necessity of obtaining and preserving testimony of seamen who were constantly travelling. These depositions were however not to be used for discovery, and could not be taken in a foreign country before an officer of that country authorised to administer an oath, unless stipulated or agreed.

Under the Federal Rules of Civil Procedure, which now govern actions in Admiralty, parties may obtain discovery by taking depositions on oral examination or written questions. It is specifically provided that after the commencement of the action, any party may take the testimony of any person, including a party by deposition on oral examination. Depositions may also be taken on written questions, but answering the written question does not excuse a party from the obligations to submit to oral examination and give his deposition on the same subject.

In terms of the Federal Rules, depositions may also be taken before action, on obtaining a Court Order therefor, for the purpose of perpetuating testimony for use in evidence. Deposition discovery may furthermore be obtained even without a showing of good cause, and
may be used to ascertain pertinent facts bearing on jurisdictional issues.

Under the Federal Rules, within the United States or within a territory or insular position subject to the dominion of the United States, depositions must be taken before an officer authorised to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the Court in which the action is pending. No deposition may be taken before a person who is a relative, employee of, or counsel for, any of the parties or who is financially interested in the action.

Depositions in a foreign country may be taken on notice before a person authorised to administer oaths in the place in which the examination is held. They may furthermore be taken before a person commissioned by the court, or pursuant to a letter rogatory. A commission or a letter rogatory should be issued on application and notice and on terms that are just and appropriate. Prior to the application of the Federal Rules of Civil Procedure to Admiralty proceedings, the statutory power of federal courts to issue letters rogatory included courts of Admiralty.

When a deposition is taken in an Admiralty action, a notice in writing must be given to every other party to the action. Furthermore, the Court may make orders which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. Also, examination and cross-examination of deponents at the taking of a pre-trial deposition may proceed in the same manner as examination of a witness in the trial.

References

1. Williams & Bruce Admiralty Practice (3rd edition)
2. Lord Hailsham Halsbury's Laws of England (4th edition)
3. Ginnow & Balluff Corpus Juris Secundum (volume 2)

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