A and B v C, D and E

Section 44(2)(a) of the Arbitration Act 1996 gives the court power to order the deposition of a non-party witness in England for use in a foreign-seated arbitration. The provision adopts the court’s powers concerning the taking of evidence in domestic civil proceedings, including the power under CPR 34.8 to order a deposition. Its wording is not limited to party witnesses or domestic arbitrations. Whether an order is appropriate is a matter of discretion, not jurisdiction. The court must consider the statutory gateways, including tribunal permission where required, the tribunal’s inability to act effectively, and, for a foreign-seated arbitration, whether intervention is inappropriate. It should also require evidence explaining the proceedings, the issues, and why the witness can give relevant evidence sufficient to justify attendance, with greater justification required where the witness faces greater inconvenience.

The appellants sought evidence from the third respondent, who was resident in England and was not a party to a New York-seated arbitration between the appellants and the first and second respondents. The arbitration concerned whether payments described as signature bonuses were deductible in calculating sums due under settlement agreements.

Foxton J dismissed the appellants’ application under section 44(2)(a) of the Arbitration Act 1996, holding that section 44 did not permit orders against non-parties: [2020] EWHC 258 (Comm). The appeal raised whether section 44(2)(a) authorised an order for a deposition from a non-party witness in support of a foreign-seated arbitration, and what discretionary test should apply.

1. Appeal allowed. The Court of Appeal held that section 44(2)(a) of the Arbitration Act 1996 authorises an order for the deposition of a non-party witness in England in aid of a foreign-seated arbitration. The Court deliberately decided the narrow question and left for another occasion whether the reasoning in the other authorities applies to the remaining heads of section 44(2).
2. Section 44(1), read with section 2(3) and the definition of legal proceedings in section 82(1), gives the court the same power concerning the taking of evidence in relation to arbitration as it has in civil proceedings in the High Court or county court. The statutory reference to witnesses includes persons who are not parties and are not under a party’s control. The Act distinguishes between party and witness in sections 38(5) and 43(1).
3. Those civil-procedure powers include the power under CPR 34.8 to order evidence by deposition. The Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Hague Convention did not limit the jurisdiction under section 44(2)(a), because the relevant comparison is with domestic civil proceedings, not foreign court proceedings. The resulting difference was a statutory anomaly and a matter for discretion, not jurisdiction.
4. The statutory safeguards remained applicable. The court had to consider sections 44(4) and 44(5), and, under section 2(3), whether the foreign seat made an order inappropriate. The limited right of appeal in section 44(7) did not justify excluding non-party orders. The rarity of depositions under CPR 34.8 concerned discretion rather than jurisdiction, and CPR 34.9 preserved ordinary trial safeguards and privileges.
5. The judge below had applied the correct discretionary approach, based on Commerce & Industry Insurance [2002] 1 WLR 1323: the applicant should explain the proceedings and issues and provide grounds for believing that the witness can give relevant evidence justifying attendance. The parties’ agreed order provided for the third respondent’s evidence to be taken by deposition before an examiner in England and videotaped for the arbitral tribunal.

• Court of Appeal (Civil Division) — Appeal allowed. The Court held that section 44(2)(a) of the Arbitration Act 1996 permitted the deposition of a non-party witness for use in the foreign-seated arbitration and ordered examination before an examiner, with the evidence videotaped.
• High Court, Queen’s Bench Division, Commercial Court — Foxton J dismissed the arbitration claim under section 44(2)(a): [2020] EWHC 258 (Comm).