On 12th February 2020, Foxton J delivered judgment in A and B v C, D and E  EWHC 258, holding that the English Court did not have the power to compel a witness located in England to give evidence in a New York-seated arbitration between partners in a Central Asian oilfield because he was not a party to the underlying arbitral agreement (see our earlier post here).
A little over one month later, in A and B v C, D and E  EWCA Civ 409, the English Court of Appeal reversed the decision, holding that English Courts do have jurisdiction under s.44(2)(a) of the Arbitration Act 1996 to grant orders for taking evidence by deposition from non-party witnesses in aid of foreign arbitrations. The Court of Appeal reasoned as follows:
- The wording of section 44(1) when read with section 2(3) and the definition of “legal proceedings” in section 82(1) made it clear that, provided the other limitations built into the section, such as section 44(5), are satisfied, the English Court had the same powers under subsection (2)(a) in relation to arbitrations, wherever their seat, as it had in relation to civil proceedings before the High Court or the county court.
- The words “the taking of the evidence of witnesses” are apt as a matter of language to cover all witnesses, not just those who are a party to the arbitration.
- The powers which the English court has in relation to “the taking of the evidence of witnesses” in civil proceedings in the High Court or the county court include the power to order evidence to be given by deposition under CPR 34.8. There was no justification for reading into “the taking of the evidence of witnesses” a limitation that it excludes depositions when the power to order a deposition is one of the powers the English Court would have in civil proceedings before the High Court or the county court.
- The other subsections of section 44 do not point against the Court having the power to make an Order against third parties under section 44(2)(a).
- There was no reason to construe the power to order a deposition narrowly merely because its use in practice was relatively rare.
- If the subsection did not permit the Court to order the taking of evidence by deposition, the subsection had little or no content in the context of a foreign arbitration.
- While there is force in the submission that the effect of the narrow approach is that subsection (2)(a) applies to non-parties, whereas the other heads of the subsection may not, that is not a sufficient reason not to conclude that subsection (2)(a) does apply to non-parties, which it clearly does. Any apparent inconsistency between the various heads of subsection (2) may be explained by the different language of those heads.
- The same conclusion was reached by Moore-Bick J in Commerce and Industry Insurance v Certain Underwriters at Lloyd’s  1 WLR 1323, the only decision at first instance which deals directly with the question of whether the Court can make an Order under section 44(2)(a) for the deposition of non-party witnesses to be taken under CPR 34.8 in support of a foreign seated arbitration. In that case, the judge held that he had jurisdiction to do so, albeit that he exercised his discretion against making an Order on the facts of that case.
See also the reviews of the case by