Compelling witness testimony under the 1996 Arbitration Act

Witnesses located inside the United Kingdom

Section 43 of the Arbitration Act entitles a party to arbitral proceedings to apply to the court to “secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence.” This is a mandatory provision that cannot be excluded by parties to an arbitration agreement and entitles a party to an arbitration to use the same court procedures for summoning witnesses that are available for court proceedings under CPR 34.

To do so, some conditions must be met. First, the witness must be in the United Kingdom, second the arbitral proceedings must be conducted within the jurisdiction of the Arbitration Act, and third – and the most difficult hurdle – is that the agreement of the other party (or parties) to the arbitration or permission of the tribunal is required. Practically, it is likely to be difficult to obtain agreement from opponents – particularly in respect of compelling testimony of witnesses who are, for example, “under their control.”

Importantly, the place where the arbitral proceedings is conducted does not necessarily mean the ‘seat’ of the arbitration. Provided that the physical hearing is conducted inside the jurisdiction, Section 43 will apply. Therefore, the court may make an order in respect of a foreign seated arbitration, unless it considers that the fact that the seat of the arbitration is outside England, Wales or Northern Ireland makes it inappropriate to do so (s.2(3) of the Arbitration Act).

Witnesses located outside the United Kingdom

Section 44(2)(a) of the Arbitration Act provides the court with expansive powers to obtain evidence. It applies regardless of whether the witness is within the United Kingdom, and whether the arbitral proceedings are conducted in England, Wales or Northern Ireland.

However, unlike Section 43, Section 44 is a non-mandatory provision, meaning that the parties can agree to exclude it. Therefore, in considering whether to apply under Section 44, it is necessary to confirm that such provisions have not been excluded in the arbitration agreement or applicable rules.

Like Section 43, Section 44 applies regardless of the seat of the arbitration meaning that the court may make an order under Section 44 with respect to a foreign-seated arbitration, unless (as with Section 43 orders) it considers it inappropriate to do so.

Unless the case is one of urgency (in which case the court may make such order as it thinks necessary to preserve evidence), the court will only act where the application is made with the permission of the tribunal or the agreement in writing of the other parties to the arbitration. The English courts are cautious about intruding into the arbitral process and regard their role as being gatekeepers of arbitral proceedings.

The case of A, B v C, D, E [2020] EWCA Civ 409 (A v C) concerned a New York-seated arbitration and addressed the “long-standing controversy” as to whether orders under Section 44 can be made against non-parties to the arbitration. The dispute concerned bonus payments.

The tribunal granted permission for A and B to apply to the English courts to compel E to give evidence. E was the lead negotiator of the bonuses, resided in England but was not a party to the arbitration agreement. The English court initially refused the application on the basis that the Section 44 provision does not permit orders to be made against third parties.

The Court of Appeal overturned the decision, holding that, amongst other reasons: (i) Section 44 was not purely limited to domestic arbitrations, (ii) the wording of Section 44 was not confined to witnesses who were party to the arbitration, and (iii) the court’s powers in relation to the “taking of evidence” included a deposition.

When will the courts intervene with respect to foreign-seated arbitrations?

Section 2(3) of the Arbitration Act provides that a court will only make orders under Section 43 and Section 44 with respect to foreign-seated arbitrations where the fact of the foreign seat does not make it inappropriate to do so. Commerce and Industry Insurance Co of Canada v Lloyd’s Underwriters [2002] 1 Lloyds Rep 219, sets out the test for situations where such an order is “appropriate.”

The case concerned applications to set aside a “without notice” application in a New York seated arbitration that required two former employees of one of the arbitral parties to attend a hearing to give a deposition; and under Section 44 of the Arbitration Act by the same party in respect of securing the same deposition. The court set aside the “without notice” application, but refused to grant an order under Section 44. Moore-Bick J, suggested for such an application to be successful it should consider the inconvenience of the witness and stated:

… The greater the likely inconvenience to the witness, the greater the need to satisfy the court that he can give [necessary] evidence …

Is prevention better than cure?

That Section 44 can be excluded provides practitioners with control where they consider there is a risk that certain non-party witnesses might have material evidence. When a dispute arises, in addition to any other rights to accessing witnesses which may be provided for under the documents, practitioners must carefully consider any provisions regarding witness evidence contained within the arbitration agreement or applicable rules.

As set out above, where the tribunal grants permission or a counterparty agrees, the English courts have broad powers to compel witness testimony in arbitrations. The objective of such powers is to create parity between litigation and arbitration and witness testimony can be secured before a tribunal when it is really needed.

The authors would like to thank Jake Burke for his assistance in preparation of this article.