The claimants, first and second defendants were parties to an arbitration seated in New York. The third defendant was resident in England and not a party to the arbitral proceedings. The claimants applied with the permission of the arbitral tribunal for an order under section 44(2)(a) of the Arbitration Act 1996 seeking the compulsory taking of evidence from the third defendant by disposition under CPR r 34.8 for the purpose of adducing it in the proceedings. The judge dismissed the application for the reason that such an order under section 44(2)(a) could not be made against a non-party to an arbitration, even where there was no requirement to serve the application out of the jurisdiction under CPR 62.5(1). The judge went on to state that it would have been appropriate to exercise his discretion in favour of making the order had he had the jurisdiction to do so.
On the claimants’ appeal—
Held, appeal allowed. It was clear from the wording of section 44(1) of the Arbitration Act 1996, when read with section 2(3), which explicitly stated that section 44 applied even if seat of arbitration was outside England and Wales, and the definition of “legal proceedings” in section 82(1), that, provided the other limitations built into the section, such as section 44(5), were satisfied, the English court had the same powers under section 44(2)(a) in relation to arbitrations, wherever their seat, as it has in relation to civil proceedings before the High Court or the County Court. There was no justification in the language of the Act for limiting the application of the subsection to domestic arbitrations, which would impermissibly disregard section 2(3). The words “the taking of the evidence of witnesses” in section 44(2)(a) in civil proceedings, which included the power to order evidence to be given by deposition under CPR r 34.8, covered all witnesses, not just arbitral parties. Sections 38(5) and 43(1) clearly distinguished between a “party” and a “witness” when necessary to do so. There was no basis for construing “witnesses” in section 44(2)(a) as synonymous with “parties”. Nor was there justification in the wording of the statute for limiting “witnesses” to those in the control of one or other of the parties because Parliament would have inserted that limitation had it intended to do so. The other subsections in section 44 did not point against the court having the power to make an order against third parties under section 44(2)(a). While it was relatively rare in a commercial arbitration for a witness to also be a party, the fact that the power in section 44(2)(a) to order a disposition was generally only used in limited circumstances did not mean that it should be construed narrowly because the question whether to exercise the power in a particular case went to discretion and not jurisdiction. Otherwise, the subsection would have little or no content in the context of a foreign arbitration if it did not enable the court to order the taking of evidence by deposition. Therefore, the court had the power under section 44(2)(a) to order the taking of evidence by deposition from a non-party witness in aid of a foreign arbitration irrespective of the scope of the other heads of the subsection and whether or not they also applied to non-parties. Although incorrect on the issue of jurisdiction, the judge, had he decided otherwise, applied the correct test on whether it would have been appropriate to make the order. Accordingly, it was appropriate to order the examination of the third defendant by deposition before an examiner of the court (paras 35–38, 40, 42, 43, 45–47, 49, 50, 51, 57, 59, 62, 70, 73, 79).
Richard Lissack QC, Teresa Rosen Peacocke and Leonora Sagan (instructed by Cooke, Young & Keidan llp) for the claimants.
Ben Carroll (of Linklaters llp) for the first and second defendants.
Angeline Welsh and Felix Wardle (instructed by Bryan Cave Leighton Paisner llp) for the third defendant.