South Tyneside v Wickes Building Supplies Ltd.

A witness summons in arbitral proceedings must identify specific documents and must not become a fishing expedition or substitute for disclosure. Relevance alone does not justify compelling production from a non-party. The applicant must show that production is necessary for the fair disposal of the arbitration or to save costs, including consideration of whether the information can be obtained by other means. Confidentiality is not an absolute bar, but it may carry very considerable weight, especially where disclosure would expose commercially sensitive information to a direct competitor. The assessment is fact-sensitive and the court must consider the matter as a whole.

The claimant landlord sought documents concerning a confidential letting to B&Q of comparable premises at Acton, for use in a rent review arbitration concerning premises occupied by Wickes at Alperton. B&Q and Mr Jordison, a director of the asset manager acting for the landlord at Acton, applied to set aside witness summonses issued under section 43 of the Arbitration Act 1996.

The documents concerned a transaction between competitors and included commercially sensitive rental information. The issues were whether the summonses were adequately drafted, whether production was necessary for the fair disposal of the arbitration, and how confidentiality affected the court’s discretion. The court also considered, provisionally, whether confidentiality affected the relevance of the Acton transaction.

1. Outcome. The applications by B&Q and Mr Jordison succeeded. The witness summonses were set aside, principally because the documents had not been shown to be necessary for the fair disposal of the arbitration and because their confidentiality and commercial sensitivity carried very considerable weight.
2. Drafting. Under CPR Part 34, a witness summons must specify the documents sought. It must not require the recipient to exercise judgment or discretion, amount to a request for disclosure, or take the form of a fishing or speculative inquiry. The original summonses, seeking transaction documentation generally and including unspecified further material, were manifestly unsatisfactory. The court nevertheless accepted that paragraph 1 of the proposed amendment identified the agreement with sufficient specificity, while the requests beginning with “A document” remained defective.
3. Necessity. Even assuming that the Acton documents were relevant and would improve the evidence, the claimant had not shown that the arbitrator could not fairly determine the rent review without them. Other comparables were available, and “perfect knowledge” of comparable transactions was not necessary. The failure to seek disclosure from Wickes of its negotiations for Acton was also material, since those negotiations could have provided useful guidance.
4. Confidentiality. Confidentiality is not an absolute bar to a witness summons, but it is a legitimate and sometimes very powerful discretionary consideration. Where documents are confidential, the alleged necessity for production requires particularly close scrutiny. The documents were commercially sensitive, and disclosure to a direct competitor which had unsuccessfully bid for the same premises would be unjustifiably intrusive absent a very clear case of necessity.
5. Relevance. The court expressed only a provisional, academic view. A comparable letting may be relevant because the concluded bargain supports an inference about rents for comparable property. The fact that the bargain is confidential does not necessarily destroy its relevance. Cardgrange and Lynall were provisionally distinguishable because they concerned confidential information about the subject premises or its income-earning capacity, rather than an objective bargain for comparable premises.
6. The summonses were set aside, with the parties to assist in drawing up the order and addressing costs.