Moves are afoot to reduce the cost and delay of civil litigation.

Such steps are to be welcomed, and were reflected by the recognition in the recent case of Khanna v Lovell White Durrant [1994] 4 All ER 267 that, increasingly, court procedures are designed to require production of evidential material at an earlier rather than a later stage of proceedings.

In that case, Sir Donald Nicholls V-C confirmed the interlocutory practice which had developed in the Chancery Division and the Commercial Court of calling for the production of documents specified in a subpoena duces tecum on a date prior to the date of the intended trial.It is ironic that it has taken a judge of the Chancery Division to validate this growing pre-trial procedure.

The writ of subpoena was originally developed by the Court of Chancery in the 15th century.

The common law courts followed the Court of Chancery's lead about a century later when, by the Statute of Elizabeth 1562-63, a penalty was imposed and a civil action was granted against any person who refused to attend trial after service of process and the tender of reasonable expenses.

Since then the writ of subpoena has developed to a great extent.The current form and procedure for service of the subpoena duces tecum is prescribed by RSC ord 38, r.14(1).

This requires the person to whom the subpoena is addressed to attend on the date fixed for trial and give evidence on behalf of the party issuing the subpoena or to bring with him and produce on that date the documents in question.The ambit of the subpoena has been refined and developed in a number of cases.

In general, the following statements of principle highlighted opposite apply:Rules are important in order to ensure that the subpoena procedure is not abused.

This was recently reaffirmed by Millet J and the Cour t of Appeal in MacMillan Inc v Bishopsgate Investment Trust [1993] 4 All ER 995.

In that case, the Court of Appeal stated that RSC ord 38, r.13 ran parallel with RSC ord 24, r.13 in that in both cases it was clear that production should not be ordered unless the court was satisfied that it was necessary for the purpose of the proceedings (ord 38, r.13) or unless the court was of the opinion that the order was necessary either for disposing fairly of the cause or matter or for saving costs (ord 24, r.13).MacMillan relied on s.4 of the Civil Evidence Act 1968 in order to attempt to circumvent the basic rule that a witness to an action is not amenable to discovery.

It was held that it was not a proper use of a subpoena for a party to obtain from a witness previous statements which he had made in case he was asked questions on the previous occasion which the party serving the subpoena had not thought of asking in cross-examination.Although the ambit of the subpoena is restricted, the use of it has been widened.

In Khanna v Lovell White Durrant a claim was made against a firm of solicitors for damages for professional negligence.

Mr Khanna issued a subpoena duces tecum against an assistant solicitor in another firm, J, who was employed by another firm of solicitors and was not a party to the action.

The subpoena commanded J to attend court and produce certain documents on a date fixed some time before trial.J applied to set aside the subpoena on the ground inter alia that it was defective in that it called for the production of documents on a date other than the date fixed for trial and that there was no warrant in the rules of the Supreme Court for that practice.

That application was rejected and the procedure which has been developing in the Chancery Division and Commercial Court of fixing an earlier date for the production of documentary evidence in response to a subpoena was recognised formally, at least in the Chancery Division itself.The decision of Nicholls V-C is to be welcomed as its effect is to avoid possible adjournments at a trial for the review of documents brought on the day of trial or arbitration (such as the 2.5 standard suitcases full of documents brought to the arbitration in Lorenzo Halcoussi (see: [1988] 1 Ll Rep 180) or an application on the day of trial which Steyn J recognised in Bookbinder v Tebbit (No.2) wastes time in adjournments.At a time when civil litigation procedure is under general review, such a procedure which saves both costs and time is to be embraced.

It should be noted that Nicholls V-C stated that this was a topic which merited further consideration by the Supreme Court procedure committee and the rules committee and that the case itself was only relevant to a subpoena to produce documents.

Different considerations would apply to subpoenas to attend and give oral evidence because of the difference in the nature of the evidence given in response to such subpoenas.A problem which occurs in litigation which involves foreign corporations or witnesses who may be abroad is how to obtain their oral testimony or relevant documents.

The subpoena has no extra-jurisdictional effect.

The alternative is to issue a letter of request pursuant to RSC ord 39, r.2 to the judicial authorities of a foreign country requesting a witness to attend the trial to give oral evidence.A possible difficulty with the letter of request procedure arises from the decision of the Court of Appeal in Penn-Texas Corp v Murat Anstalt [1964] 1 QB 40.

In that case, it was held that a company cannot be required to atte nd, by its proper officer, to give oral evidence.

Thus, an order to produce a company's documents also could not be directed at an individual; the order had to be directed at the company.

As an order to produce documents pursuant to a letter of request could only be made ancillary to an order to attend for examination, such an order could not lie against the company.This difficulty was recently overcome in Panayiotou v Sony Music.

It was held that the court had inherent jurisdiction to issue a letter of request to the judicial authorities of a foreign country seeking the production of documents belonging to a company and in its possession which, had they been in England, could properly have been made the subject of a subpoena issued by the English court.

It should be noted, however, that the letter of request has to be confined to particular documents in the same way as a subpoena duces tecum.The alternative method of obtaining documents from a foreign company or individual is to use a statutory right to that evidence in the foreign country.

Such was the case in South Carolina Company v Assurantie NV [1987] AC 24.

In that case, the plaintiffs attempted to injunct the defendants from taking steps in proceedings before a federal district court of the US pursuant to a statutory right for production and inspection of documents against a number of companies when the individuals and companies were not parties to the English action.

The House of Lords discharged the injunctions against such steps being taken by the defendants, which had previously been granted by the judge and Court of Appeal, recognising that it was for the federal district court to rule on the merits of the application.The subpoena duces tecum is a useful procedural tool to assist parties in obtaining relevant evidence for the purpose of the proceedings.

The recent validation of the practice of requiring production of documents at a date in advance of the date fixed for the commencement of the actual trial will save both costs and time in the proper use of the subpoena.

There is no reason why this procedure should not be used also in arbitration.It is hoped, therefore, that the Supreme Court procedure committee and rules committee approve this procedure and formally adopt it in all divisions of the High Court.

The further use of the inherent jurisdiction of the court to assist parties seeking production of documents belonging to foreign companies should also enhance the parties' chances of obtaining documents at a convenient time in order to fairly dispose of the case.POINTS TO REMEMBER-- the object of the subpoena is to compel the witness to produce evidence directly material to the issues in the case, and it must, at least arguably and on reasonable grounds, cover relevant and admissible evidence (see R v Cheltenham Justice, ex p Secretary of State of Trade [1977] 1 WLR 95);-- the subpoena procedure must not be used to require a witness to produce documents simply because they may be useful for the purpose of corroborating or challenging a witness, or because they may lead to a train of enquiry or may, in some other way, advance one party's case or damage the others.

Nor is the witness to be required to undertake an unfairly burdensome search through his records to find particular documents or to see if he has any documents relating to a particular subject matter (see Panayiotou v Sony Music [1994] 1 All ER 755);-- if a subpoena is challenged, the burden rests on the party who caused the subpoena to be issued to show that the document or documents to which it refers are necessary for the fair disposal of the action;-- the subpoena must specify the particular documents required and cannot be used as a general discovery exercise.

An order will only be upheld against a third party witness if the document is such that the parties to the action are entitled to it for the purposes of justice (see Burchard v Macfarlane, ex p Tindall [1891] 2 QB 241; Elder v Carter [1890] 25 QBD 194);-- a compendious description of several documents might be sufficient for a subpoena duces tecum to be upheld provided that the exact documents are indicated (see Re Asbestos Insurance [1985] 1 WLR 331);-- if, as between the immediate parties to the action, specific discovery of particular documents have been refused by the court, that operates as a cogent factor against treating such documents, when described in a subpoena, as necessary for the fair disposal of the case (see Steele v Savory (1891) 8 TLR 94);-- the plea of public interest immunity may result in a supoena duces tecum being set aside (see Bookbinder v Tebbit (No 2) [1992] 1 WLR 217).

For this plea to be successful, the applicant who wishes the subpoena to be set aside must show that the production of the documents is likely to impede the carrying out of the public purpose for which they were brought into existence (see Neilson v Laugharne [1991] QB 736).