Tajik Aluminium Plant (TadAZ) v Hydro Aluminium AS & Ors

A witness summons requiring production of documents under the Civil Procedure Rules 1998 invokes the court’s coercive power and is materially different from an order for third-party disclosure. It cannot be used to obtain disclosure in support of arbitration.

The summons must identify what is to be produced with sufficient certainty to leave the witness in no real doubt about the obligation. Individual identification is ideal, but a compendious description may suffice. Adequacy depends partly on context. A broad description by transaction or event will usually be insufficient, and doubts should generally be resolved in the witness’s favour.

Tajik Aluminium Plant resisted a claim by Hydro Aluminium AS in a London arbitration concerning a barter agreement. It alleged that the agreement formed part of a fraudulent scheme and obtained witness summonses requiring four non-parties to produce broadly described classes of documents at the arbitral hearing.

Mann J set aside the production summonses. He held that the principles governing the former subpoena duces tecum continued to apply under Part 34 of the Civil Procedure Rules 1998, so that the documents had to be individually identified or described compendiously enough to permit specific identification.

The Court of Appeal granted permission to appeal but dismissed the appeal. The central issue was how precisely documents must be identified in a witness summons issued under rule 34.2 in aid of arbitration pursuant to section 43 of the Arbitration Act 1996.

1. Appeal dismissed. Moore-Bick LJ gave the judgment, with which Maurice Kay and Rix LJJ agreed. A witness summons requiring production of documents under rule 34.2 of the Civil Procedure Rules 1998 is, in substance, no different from the former subpoena duces tecum. Mann J had correctly set aside the summonses.

2. A disclosure order and a witness summons perform different functions. Disclosure ordinarily requires a reasonable search, a list of documents and, where appropriate, later inspection. A witness summons immediately invokes coercive power, requires the witness to bring documents to the court or tribunal, and exposes the witness to penal consequences for material non-compliance. Justice therefore requires the summons to state clearly what must be brought.

3. The absence of detailed wording in rule 34.2 did not justify construing it consistently with third-party disclosure under rule 31.17. Section 43 of the Arbitration Act 1996 permits parties to use court procedures for securing a witness’s attendance to give testimony or produce evidence. It does not provide, through Part 34, a means of obtaining third-party disclosure in support of arbitration. The disappearance of the former statutory power to order disclosure showed that complete symmetry between arbitral and court procedures was not intended.

4. The applicable test is whether the documents are identified with sufficient certainty to leave no real doubt in the witness’s mind about what must be produced. Individual identification is preferable but not invariably necessary. A compendious description may suffice where it clearly indicates the exact documents. Descriptions framed merely by reference to a broadly expressed transaction or event will usually fail, although a self-contained and sufficiently defined transaction may permit that approach. Doubts should generally be resolved in favour of the witness.

5. The schedules used broad disclosure-style categories and did not identify the documents with the required certainty. The court therefore did not determine the alternative objections based on burden, relevance, confidentiality or possible circumvention of an order restricting access to seized documents.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed. The orders setting aside the witness summonses for production of documents were upheld: [2005] EWCA Civ 1218.

2. High Court, Chancery Division: Mann J set aside the production summonses because the documents were not individually identified or described compendiously enough to permit specific identification. No citation is stated in the judgment.