Witness summonses

Tajik Aluminium Plant v Hydro Aluminium AS [2005] EWCA Civ 1218

Under s43 of the Arbitration Act 1996, the court has the same powers to require third parties to give evidence and produce documents in arbitration as it has in respect of judicial provisions. The arbitrators had made orders requiring witnesses to produce four classes of documents. On their appeal against the orders, the High Court judge set them aside on the grounds that there was insufficient identification of the documents sought. On appeal, the Court of Appeal distinguished between the court’s power under CPR rule 31.17 to order a third party to produce all relevant documents for the purposes of judicial proceedings and CPR Part 34 under which a witness may be required to attend to give evidence or to produce documents in judicial proceedings. The former provision requires the recipient to carry out a reasonable and generalised search for documents in his possession and to provide a list of them or to produce them, and although the order was one made by the court it was extremely rare for any penal sanction to be attached to any failure to comply. By contrast, an order under CPR Part 34 required the giving of evidence or production of documents: it had to be strictly obeyed and was punishable by contempt proceedings in the event of non-compliance. The penal nature of a Part 34 order meant that it was to be construed narrowly, and it followed that the documents to be produced had to be specifically identified, or at least described in the same compendious manner that enabled the individual documents falling within this scope of the summons to be clearly identified. Under this test, it is insufficient for the order simply to require disclosure of all documents relating to a particular event or contract, other than in exceptional cases where the event or contract was self contained and well defined. In upholding the setting aside of the witness summonses, the court in effect reverted to the pre-1996 principles applicable to subpoenas.