VXJ v FY & Ors

A witness summons under the Arbitration Act 1996 cannot be used as a form of non-party disclosure. Documents must be individually identified, or described compendiously with sufficient certainty, and must be actual documents shown likely to exist and be in the respondent’s possession.

The applicant must also establish relevance and necessity for the fair disposal of the arbitration. Broad, speculative or burdensome requests requiring searches and judgment-based relevance or privilege reviews are impermissible. Section 44(2)(c) concerns the physical inspection or preservation of property, not disclosure of information contained in documents.

The claimant sought documents from two companies that were not parties to a London-seated UNCITRAL arbitration. The application was made under section 43 of the Arbitration Act 1996, alternatively under section 44(2)(c), following permission granted by the arbitral tribunal.

The requests concerned documents relating to alleged corruption investigations, documents from US proceedings, and technical and business reports concerning alleged project mismanagement. The claimant reformulated some requests as requests for specific documents and sought their production or copying. The central issues were whether the requests were within the statutory jurisdiction, sufficiently precise, relevant and necessary for a fair resolution of the arbitration.

1. Section 43. The application for witness summonses was dismissed. Section 43 permits court procedures to secure a witness’s attendance to give evidence or produce identified documents. It does not confer jurisdiction to order disclosure against a non-party. The distinction between production and disclosure is fundamental: a summons involves coercive and potentially penal consequences, whereas disclosure commonly requires a reasonable search through broadly described classes of documents.
2. Each document must therefore be individually identified. A compendious description is permissible only where it clearly indicates the exact documents falling within it. The documents must be actual documents, or documents shown likely to exist and be in the respondent’s possession. Requests for documents which may or may not exist, or for any or all documents on a subject, are conjectural and impermissible.
3. The applicant must additionally show that the documents are relevant and necessary for the fair disposal of the arbitration. Relevance alone is insufficient. The court may consider whether the information can be obtained by other means, whether the request would impose an unfair burden, and whether confidentiality makes the asserted necessity require particularly close scrutiny. The claimant had not shown that the documents were necessary, rather than merely potentially useful, or that the tribunal could not fairly determine the arbitration without them.
4. Section 44(2)(c). The alternative application for copying documents was also dismissed. The provision concerns property which is the subject of proceedings, or in respect of which a question arises, and permits inspection, photographing, preservation, custody or detention. It is directed to the physical object, not to disclosure of the information conveyed by a document. The present requests were in substance requests for documentary disclosure and did not satisfy section 44(2)(c).
5. The court did not determine whether the non-party defendants should voluntarily provide relevant documents through the arbitration. Any resulting evidential consequences, including possible inferences, were matters for the arbitral tribunal.