In the case of <span class="news-text_italic-underline">Federal Republic of Nigeria v Process and Industrial Developments Ltd and another [2025] EWCA Civ 715</span>, the Court of Appeal denied an application for permission to appeal against adverse findings made against a non-party witness in a judgment that had set aside an arbitral award under Section 68 of the <span class="news-text_italic-underline">Arbitration Act 1996</span> (“<span class="news-text_medium">AA 1996</span>”).
The application was submitted by Mr Andrew (“<span class="news-text_medium">A</span>”), a solicitor who had represented the defendant, Process and Industrial Developments Ltd (“<span class="news-text_medium">P&ID</span>”), in an arbitration against the claimant, the Federal Republic of Nigeria (“<span class="news-text_medium">FRN</span>”). FRN sought to challenge the arbitral award on several grounds, one of which included P&ID’s improper retention and use of FRN’s internal documents during the arbitration. The judgment concerning Section 68 AA 1996 included criticisms of A’s conduct regarding FRN's documents.
The Court of Appeal ruled that A’s permission application was submitted too late, finding that his failure to serve the Appellant's Notice on time was a significant violation of the Civil Procedure Rules (“<span class="news-text_medium">CPR</span>”). The court also determined that A had not provided adequate reasons to justify an extension of time for filing.
Additionally, the court held that it lacked the jurisdiction to hear the appeal as A had not obtained the necessary permission from the judge as stipulated in Section 68(4) AA 1996. It rejected A's argument that Section 68(4) should be interpreted in line with the <span class="news-text_italic-underline">Human Rights Act 1998</span> to circumvent this requirement, concluding that no violation of A's rights under Articles 6 or 8 of the European Convention on Human Rights had occurred.
The Court further affirmed that the grounds of appeal could be dealt with concisely, noting that the judge's reasons for dismissing A’s evidence were more than sufficient. Moreover, A had been given the opportunity to review the draft judgment before its formal release.
Regarding the findings against A concerning his use of FRN’s documents, the Court stated that A had ample opportunity to address the allegations, which were clearly outlined in the case. The judge's reasoning was considered adequate and based on A’s own evidence, it was inevitable that the conclusion regarding his conduct would be negative. Even if some of the grounds of appeal were arguable, the court would still refuse permission to appeal, given that the Section 68 application had been fully tried and A’s role as a witness in the proceedings had concluded. FRN had a strong interest in ensuring the finality of the judgment.
Finally, the Court underscored that challenges by non-party witnesses to adverse findings in litigation should generally be discouraged, unless in extraordinary circumstances. It clarified that A's right to practice as a solicitor had not been affected by these proceedings or the judgment and could only be addressed in any future proceedings before the Solicitors Disciplinary Tribunal.
