English Commercial Court Dismisses Applications for Witness Summons and Document Production as Impermissible Third-Party Disclosure

In <span class="news-text_italic-underline">VXJ v FY [2025] EWHC 2394 (Comm)</span>, the Commercial Court of England and Wales dismissed two applications brought by the espondent in a London-seated arbitration seeking orders for the production and photographing of documents held by third parties. The applications, made under sections 43 and 44(2)(c) of the Arbitration Act 1996 (“<span class="news-text_medium">AA 1996</span>”), were found to be impermissible attempts to obtain third-party disclosure outside the limited powers provided by the Act.

The Respondent (the “<span class="news-text_medium">Applicant</span>”) sought to compel two companies, D2 and D3 — both associated entities of the first Defendant, which was the Claimant in the arbitration — to produce various categories of documents. The applications were made pursuant to:

• section 43 AA 1996, which allows the court to issue witness summonses requiring a person to produce documents in their possession; and
• section 44(2)(c) AA 1996, which permits the court to make orders for the inspection, photographing, preservation, or custody of property relevant to the arbitration.

Calver J dismissed both applications, finding that they were, in essence, requests for third-party disclosure rather than applications properly falling within the scope of sections 43 or 44.

In relation to section 43, the judge held that its requirements were not satisfied because:

• the documents sought were not individually identified and some might not exist;
• compliance would require D2 and D3 to search for documents and exercise judgment to determine whether they fell within the broad categories requested; and
• the Applicant had not demonstrated that the arbitral tribunal could not fairly resolve the dispute without the documents in question.

Accordingly, the application amounted to an impermissible request for general disclosure from third parties, which is not available under section 43. Turning to section 44(2)(c), the Court rejected the alternative application on similar grounds. Calver J emphasised that section 44(2)(c) confers jurisdiction to make orders regarding the inspection, photographing, or preservation of property, not the production or copying of documents for evidential purposes.

While a document may in some cases constitute “property,” the judge drew a distinction between “the medium” (the document itself) and “the message”. Since the Applicant sought the information within the documents rather than preservation of the documents as physical property, the request was in substance an application for documentary disclosure, which must comply with section 43 — and did not in this case.

The judgment reaffirms the narrow interpretation of sections 43 and 44 AA 1996 and serves as a caution against attempting to use section 44 to circumvent the procedural safeguards applicable under section 43. Calver J also carefully examined the extent of the arbitral tribunal’s permission for the court application, highlighting the importance of respecting the tribunal’s procedural authority.

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<span class="news-text_medium">Case Reference:</span> <span class="news-text_italic-underline">VXJ v FY [2025] EWHC 2394 (Comm)</span> (22 September 2025), Calver J.