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Welcome to the non-party: obtaining evidence from non-parties

Securing oral evidence and obtaining documents from non-party witnesses in an arbitration may seem a tough task. Compelling a non-party to give evidence in an arbitration is clearly not the jurisdiction of a tribunal so a party has to turn to powers contained in sections 43 and 44 of the Arbitration Act 1996.

The 1996 Act allows the tribunal to give permission to a party to apply to court for an order compelling a non-party to give evidence. The processes of obtaining such evidence for use in arbitral proceedings from non-parties are broadly similar to the powers that may be invoked in litigation. Disclosure is the notable exception.

In each case, when permission is given by the tribunal, it is necessary to make a separate application to the court (using the Arbitration Claim Form) in order to obtain the effective relief.

Evidence from witnesses in the jurisdiction

Section 43(1) states:

“A party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence.”

Section 43(2) states that a party may only use these powers with permission of the court or agreement of the other party, and section 43(3) limits the powers in this section to where the witness is in the UK and the arbitration is England and Wales or Northern Ireland. If the witness is abroad, then a party must use section 44 (described below).

Finally, section 43(4) states that a witness will not be required to produce evidence which it could not be compelled to produce in legal proceedings. An application must therefore use the witness summons procedure at CPR 34.2(1). That rule states that a witness summons is a document issued by the court requiring a witness to either:

  • Attend court to give evidence.
  • Produce documents to the court.

(The guidance to that rule states that a witness summons may contain an order for both.)

Documents

It is crucial for any application for the production of documents, before the tribunal and then at court, that they can be listed with specificity. The rationale is to ensure that the third party can be certain that it has complied fully with any order for production, as the witness summons contains a penal sanction for non-compliance. Broad categories of documents, such as those given in a disclosure list, do not give that level of certainty and are likely to be rejected by the tribunal or the court.

In Tajik Aluminum Plant v Hydro Aluminum AS & Others, a case concerning documents and evidence required for an arbitration, Moore-Bick LJ stated that a party should:

“…identify the documents to be produced with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do. In my view that is the test that should be applied when considering whether documents have been sufficiently identified in a witness summons”.

In Council of the Borough of South Tyneside v Wickes Building Supplies Ltd, the court made it clear that relevance was not the correct test. It was stated in relation to the production of documents that it:

“…must be necessary for the fair disposal of the matter or to save costs. The court is entitled to take into account the question of whether the information can be obtained by some other means.”

In practical terms, a tribunal is likely to ask:

  • Are the documents relevant to the case and material to the outcome of the arbitration?
  • Is the evidence in the documents otherwise available?
  • Is production of the documents otherwise in the interests of justice?

Attendance at final hearing

An application that a witness attends the final hearing to give evidence is made under the same provisions. It is important that the applicant explains why live evidence is necessary, in the same manner that an application for a CPR 34 witness summons must be justified. In particular, it must be shown that the dispute cannot be disposed of adequately unless the witness attends to give evidence.

Evidence from witnesses outside the jurisdiction

Section 44 of the 1996 Act gives the court the same power to make orders in arbitral proceedings as it has in legal proceedings, in respect of the matters listed in section 44(2). The first of those matters, listed at section 44(2)(a), is “the taking of the evidence of witnesses.” Although it is not expressly stated in section 44 of the 1996 Act, a party may seek permission from the tribunal (as required by section 44(4)) to apply to the English High Court for an order under several of the provisions in CPR 34 relating to witnesses outside the jurisdiction.

The first is CPR 34.23 (the taking of evidence from a person in a Regulation state for use in proceedings in England). If a witness is based in a non-EU member state, the procedure under CPR 34.13 (letter of request) is required (of course, for some jurisdictions it is possible to apply directly to the local court, for example in the USA under 28 U.S. Code § 1782). In either case, these procedures may be used to compel the witness to give a deposition to a local court or to produce documents. The legal test and procedural requirements are the same.

Taking of evidence regulation

In the event that the tribunal grants permission, an applicant must file a Form A Request, as required under CPR 34.23(3)(a). Paragraph 12 of Form A requires a description of the evidence sought and 12.2.6 requires “questions to be put to the witness or a statement of the facts about which they are to be examined”. In practice, it is likely to be difficult to list the exact questions that need to be asked (unless it is a very discrete issue) and an accurate description of the information sought is likely to suffice.

Letter of request

A letter of request will be sent by the High Court to the relevant judicial authority in the witness’ jurisdiction. CPR 34.12(6) requires a letter of request to be accompanied by a statement of the issues in the proceedings and “a list of questions or the subject matter of questions to be put to the person to be examined”. This is a similar level of specificity to the procedures described above.

It is worth noting that, in the UK, a Norwich Pharmacal order can allow for a party to seek information or documents from a non-party that may be mixed up in the claim but not a party to the proceedings.

It is vital that parties in arbitration proceedings follow the right processes to secure any evidence from third parties. Sometimes, the difference between winning and losing a case can hinge on such evidence.

King & Spalding Henry Farris

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