On 19 March 2020, in A, B v C, D and E  EWCA Civ 409, the English Court of Appeal confirmed that the Court has the power under section 44(2)(a) of the Arbitration Act 1996 to order a non-party English resident to give evidence in support of a foreign arbitration overturning the High Court judgment.
The Appellant was seeking the court’s assistance in the form of an order against E, an English resident, for the taking of evidence in support of a New York seated Arbitration.
In the High Court, Justice Foxton had found that he was bound by the decisions of Males J in Cruz City and Sara Cockerill QC in DTEK and that there was no power under section 44 to make an order against a non-party. However the Court of Appeal, including Lord Justice Males, found that those cases considered different court powers under section (freezing injunctions). The more relevant case was Commerce and Industry Insurance v Certain Underwriters at Lloyd’s the only authority that specifically considered s44(2)(a). Moore-Bick J had found that there was a power to make such an order under s44(2)(a) in support of a New York Arbitration but declined to exercise his discretion to grant the order in that case. The question of whether the jurisdiction to make such an order was limited to arbitration parties does not seem to have been argued.
Counsel for the non-party, Ms Welsh, submitted that the appeal should not be granted for a number of reasons including the numerous indications in the wording of s 44 itself that it was intended to be limited to orders made against a party to the arbitration. s44(1) of the section is expressed to be subject to contrary agreement between the parties which must mean the parties to the arbitration agreement. Under s44(4) the order can only be made with prior agreement of the Tribunal or all of the other parties in writing (which must mean the parties to the arbitration) except in cases of urgency. The non-party witness will have no opportunity to make submissions to the Tribunal on this point. Despite these compelling arguments, the Court of Appeal preferred to decide the issue on the narrow approach of section 44(2)(a) whatever the scope of the other heads of the subsection and regardless of whether or not they apply to non-parties.
Lord Justice Flaux found that the wording of section 44(1) when read with section 2(3) and the definition of “legal proceedings” in section 82(1) makes it clear that provided the other limitations built into the section are met, the English Court has the same power under s44(2)(a) in relation to arbitrations as it has in relation to civil proceedings before the High Court. There was no justification for limiting the subsection to domestic arbitrations.
The Court found that there was force in Ms Welsh’s submission that if the Court has the power to make an order against a non-party under s44(2)(a), it is something of an anomaly that there is a limitation in s44(7) on the non-party’s rights of appeal. However, the Court found that the anomaly was not sufficient to justify the restrictive approach argued for by the third respondent.
Interestingly, this leads to the anomalous situation where the English Court’s powers to order a witness to give evidence in support of arbitration are wider than those in respect of foreign court proceedings where it cannot make a similar order unless there is an inwards letter of request.
This power will be an important weapon in the toolbox of the English Courts’ in supporting arbitrations both domestic and foreign. It remains to be seen whether the BVI Courts would take a similar approach particularly given that there are no rights of appeal under the equivalent provision s53(4) of the BVI Arbitration Act 2013.