Peters & Anor v Andrew

A witness summons issued in aid of arbitration may be set aside where it seeks irrelevant, speculative or unnecessary material, or where its operation would be oppressive, intrusive or unfair. Relevance alone is insufficient. The court must assess necessity, alternative means of obtaining the material, confidentiality and proportionality, viewing the matter as a whole. A limited request for non-content telephone records may be proportionate where an arbitral tribunal reasonably considers that the records are necessary to complete the evidential picture and test an inference of impropriety.

The claimants applied under CPR 34.4(2) to set aside witness summonses issued at the defendant’s request in aid of an arbitration between the defendant and a footballer. The summonses required the claimants’ mobile telephone operators to produce itemised records for a defined period.

The defendant alleged that the footballer had used one claimant as a front and another as an unregistered intermediary in transfer negotiations. The arbitrators considered the records potentially relevant and necessary after evidence disclosed frequent communications between the relevant individuals. The issue was whether the summonses should be set aside for irrelevance, fishing, disproportionality, collateral purpose or intrusion into confidential private affairs.

1. The application was dismissed. The witness summonses were not set aside.
2. The court adopted the principles summarised in South Tyneside Borough Council v Wickes Building Supplies [2004] EWHC 2428 (QB). A summons must identify specified documents and must not be used for disclosure or speculative fishing. Production must be necessary for the fair disposal of the matter or to save costs. The court may consider whether the material can be obtained by other means. Relevance is necessary but not conclusive.
3. Confidentiality is not an absolute bar. It is a factor in the discretionary assessment, particularly where production of a non-party’s confidential documents may be oppressive, intrusive or unfair. The court may vary a summons, although it should ordinarily be given a considered draft rather than being required to undertake redrafting.
4. The relevant factors are not applied mechanically. The court must assess the matter as a whole, giving different factors such weight as the circumstances require. The arbitrators’ conclusion deserved respect because of their close familiarity with the issues.
5. The records sought were confined to the number and timing of communications between identified individuals during a limited period. The content of calls was not sought. The material could help the tribunal complete the evidential picture before deciding whether to draw an inference of impropriety, and there was no obvious alternative means of obtaining it. The intrusion was therefore proportionate and necessary.
6. An alleged collateral intention to refer matters to the Football Association did not justify setting aside otherwise appropriate summonses. The summonses remained relevant to the arbitration, and the Football Association could in any event seek the records independently.