Non-Party Disclosure Denied: A reminder of the English Court’s approach in London-seated arbitration

In English litigation a party to proceedings can apply for an order to obtain disclosure from a third party who is not party to the proceedings but possesses documents that are likely to be helpful to its case.  Courts are able to order such non-party disclosure both under the English Civil Procedure Rules (CPR) (specifically CPR 31.17 and 34.2) and via discretionary orders, such as Norwich Pharmacal orders. 

However, the same is not true in the context of arbitration. A Tribunal’s jurisdiction only extends to the parties to the arbitration agreement. This means that it cannot impose obligations on non-parties and does not have the power to order anyone aside from the parties themselves to disclose documents that may be relevant to a case. 

Although the Arbitration Act 1996 (the 1996 Act) grants the Courts various powers that they can exercise in support of certain aspects of arbitral proceedings which are seated in England, Wales or Northern Ireland, these powers do not extend explicitly to the ordering of non-party disclosure. Nonetheless, sections 43 and 44 of the 1996 Act do provide some potential relief by permitting Courts to make orders relating to the production of documents and evidence in arbitration, including by non-parties to arbitral proceedings. The recent case of VXJ v FY & Ors [2025] EWHC 2394 (Comm) illustrates the Court’s strict application of these provisions.

Summary of the case

FY commenced an arbitration against VXJ in relation to an Investment Agreement they had entered into concerning a minerals mining project. In the course of those proceedings, VXJ requested disclosure of various documents held by two controlling shareholders of FY that were relevant to VXJ’s counterclaims, which involved allegations of corruption and mismanagement of the project by FY. Those shareholders were not parties to the arbitral proceedings. The Tribunal made a procedural order directing FY to use “best efforts” to obtain documents that were relevant and material to the dispute from its controlling shareholders but it could not go any further.

VXJ alleged that FY had not complied with the Tribunal’s procedural order and sought permission to apply to Court for a disclosure order. Permission was granted and VXJ issued an application in the English Commercial Court under two provisions of the 1996 Act:

1. Section 43, which empowers the Court to secure the attendance of witnesses “in order to give oral testimony or to produce documents or other material evidence” (in other words, a Court-ordered witness summons). Here, VXJ sought an order requiring the two controlling shareholders of FY to produce various categories of documents.
    
2. Section 44, which gives the Court certain powers to make orders “…whether in relation to a party or any other person…” about matters including property “which is the subject of the proceedings or as to which any question arises in the proceedings… for the inspection, photographing, preservation, custody or detention of the property”.  VXJ sought an order under section 44(2)(c) of the 1996 Act for the photographing of property, that is, the documents they wanted. 

Section 43 application for a witness summons 

The Court set out the key requirements that must be satisfied for a valid witness summons by reference to established case law on this point (in particular, South Tyneside BC v Wickes Building Supplies Ltd [2004] EWHC 2428 (Comm) which was later confirmed by Tajik Aluminium v Hydro Aluminium [2006] 1 WLR 767). These requirements are:

• The documents sought must be specifically and individually identified in the summons, or described in such a way that allows for individual documents to be clearly identified. The applicant must also satisfy the Court that the documents exist or are likely to exist, and that they are likely to be in the respondent’s possession. Conjectural documents which may or may not exist fall outside the scope. 
   
• The documents must be shown to be relevant to the proceedings and necessary for the fair disposal of the issues in the arbitration. This is a high threshold. It is insufficient for an applicant to claim that a document may be useful or that its production might improve the material before the Tribunal. That is too speculative.
   
• The Court will consider the burden that is placed on the non-party in terms of conducting searches to find documents, as well as whether a document is confidential or commercially sensitive (although this will not serve as an absolute bar) and if the information can be obtained by any other means. 

The Court applied the above principles to each of VXJ’s requests for documents and found that some were too broad and conjectural in nature, effectively amounting to a fishing exercise. Some requests required the non-parties to undertake unfairly burdensome relevance and privilege reviews of extensive archives of documents. Other requests were deemed to be unnecessary for the Tribunal to dispose of the matter fairly. 

Outcome: the Court concluded that VXJ’s requests constituted impermissible requests for third-party disclosure rather than for the production of specific documents held by witnesses and so the application under section 43 was dismissed.

Section 44(2)(c) application for photographing of property

The Court noted that this provision of the 1996 Act is not concerned with an order for the disclosure of documentary evidence (that is, disclosure of information contained within a document) but rather with inspecting, photographing, safeguarding or preserving the actual property (which could in principle be the document itself) which forms the subject  matter of the proceedings or where a question arises in the proceedings in respect of that property. 

The Court drew a distinction between the actual physical object which carries the information (“the medium”) and the information which a document conveys (“the message”). It was emphasised that section 44(2)(c) permits orders to be made in relation to the medium only; an order regarding the message would more appropriately fall under section 43 of the 1996 Act. 

Outcome: The Court held that VXJ was not seeking to inspect or photograph the physical property forming the subject matter of the proceedings but rather it was seeking for the content in that property to be disclosed. This kind of disclosure fell outside the scope of section 44(2)(c) and so the application failed. 

Key takeaways

• The case highlights the strict approach of English Courts when it comes to being asked to order the disclosure of documents by a non-party in arbitral proceedings. The 1996 Act offers alternative ways of potentially acquiring such documents but this is tightly controlled.
   
• There is a high threshold that needs to be met in order for the Court to make an order for a witness summons under section 43 of the 1996 Act. An applicant must show the request relates to actual, specific documents, that they are relevant and necessary for the fair disposal of the proceedings and the request is not unduly burdensome for the non-party.
   
• This high bar may well be justified by the fact that unlike an order for disclosure, a witness summons “involves the exercise of a court’s coercive powers” such that a non-party’s failure to comply puts it at risk of being in contempt of Court.
   
• Section 44 of the 1996 Act is not to be used as a way of circumventing section 43. Any application under section 44 will only succeed if it is concerned with the actual physical object which carries the information (which can be the document itself) and not the potential message that a document may convey.
   
• Notwithstanding the above, the Court flagged that it is always open for a non-party in arbitral proceedings to voluntarily provide disclosure where they hold relevant documents that are necessary to the fair disposal of the issues in dispute.