Assimina Maritime Ltd. v Pakistan Shipping Corporation & Anor

Arbitration Act 1996, sections 43 and 44, does not give the court power to order ordinary non-party disclosure for an arbitration. Section 44 may support inspection, copying or preservation of specifically identified documents where a question arises about those documents in the arbitration. The documents must be capable of specific description and cannot be defined merely by their relevance to an issue. Section 43 likewise permits production of a defined group of documents for proof of a particular matter, but cannot be used as a discovery exercise.

The claimant shipowner commenced arbitration against voyage charterers concerning the alleged breach of a safe berth warranty after the tanker TASMAN SPIRIT grounded in the approach channel to Karachi. It sought documents and oral evidence from a non-party marine survey organisation which had investigated the channel for the Karachi Port Trust.

The arbitral tribunal permitted applications under sections 43 and 44 of the Arbitration Act 1996. The central issue was whether those provisions authorised non-party disclosure of the feasibility study and related material, or instead permitted only specific orders for preservation, inspection, copying and production.

1. Application granted in part. The court ordered production and copying of defined documents and issued a witness summons, but rejected the request for ordinary non-party disclosure under CPR 31.17. The claimant was ordered to pay Wallingford’s reasonable costs of compliance.
2. Section 44 of the Arbitration Act 1996 provides ancillary powers corresponding to the listed powers available in legal proceedings. Those powers include preservation of evidence and orders concerning property where a question arises in the arbitration. They do not include an order replicating ordinary non-party disclosure.
3. A section 44 order may be made where particular documents are likely to contain evidence relevant to an issue and their preservation, inspection or copying is justified. The documents must be specifically describable. A class defined only by reference to relevance to issues is impermissible. The order was therefore confined to documents sent by Wallingford to the Karachi Port Trust and documents created in preparing them.
4. The meaning of document for this purpose followed CPR 31.4 and included anything in which information of any description was recorded, including computer material.
5. Section 43 provides a procedure equivalent in substance to a subpoena duces tecum. The documents required must be specifically defined by reference to proof of a particular matter. A broad discovery exercise against a non-party is outside its scope. A compendiously described but individually identifiable group of documents may, however, be ordered.
6. The final order was adjusted accordingly. The ordinary disclosure category was deleted, defined document categories were retained or amended, and an employee responsible for the Karachi inspection was summoned to give oral evidence.