Tajik Aluminium Plant (Tadaz) v Hydro Aluminium As and others: CA 24 Oct 2005

Application for leave to appeal against refusal to grant witness orders to attend arbitration. The respondent had argued that the request was too vague and broad.
Held: Moore-Bick LJ said: ‘In order to answer the question raised in this case I think it is necessary to return to first principles with such assistance as may be gained from the earlier authorities. A witness summons, unlike an order for disclosure, requires the person to whom it is addressed to attend court on a specified occasion and to produce to the court the documents to which it refers. It is a requirement reinforced with a penal sanction. Justice demands, therefore, that the person to whom it is addressed should be told clearly when and where he must attend and what he must bring with him. Anything less is unfair to the witness; it also makes supervision and enforcement by the court extremely difficult, as Miss Reffin was forced to admit. For these reasons I consider that the view put forward in Phipson, to which I referred earlier, is to be preferred. Ideally each document should be individually identified, but I do not think it is necessary to go that far in every case. In In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 the court was concerned with an application under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 under which the High Court is empowered to make orders for the production of documents for use as evidence in proceedings abroad pursuant to a request from a foreign court. Subsection (4) of section 2 expressly provides that an order made under that section shall not require the person to whom it is addressed to state what documents are or have been in his possession, custody or power or to produce any documents other than particular documents specified in the order and subsection (5) provides for the payment of conduct money, expenses and loss of time. This strongly suggests that the draftsman was seeking to equate an order to produce documents made under section 2 with the writ of subpoena duces tecum and to draw a distinction between such an order and what at that time would have been an order for discovery. However, despite the express requirement that an order under this section must specify particular documents, Lord Fraser of Tullybelton, with whom the other members of their Lordships’ House agreed, considered that ‘a compendious description of several documents’ would suffice provided that the exact document in each case was clearly indicated. By way of example he drew a distinction between an order for the production of ‘monthly bank statements for the year 1984 relating to [your] current account’ with a named bank, which he thought would satisfy the requirements of the Act, and ‘all [your] bank statements for 1984’, which he thought would not: see pp 337-338.
Rule 34.2 does not contain any provision comparable to section 2(4) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, but Lord Fraser’s observations are none the less helpful because they provide an example of the ways in which, without describing them individually, it may be possible to identify the documents to be produced with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do. In my view that is the test that should be applied when considering whether documents have been sufficiently identified in a witness summons. Whether it has been met is likely to depend, at least in part, on the particular circumstances of the case. It is unlikely to be met if the documents are described simply by reference to a particular transaction or event which is itself described in broad terms, although in cases where the transaction is self-contained and sufficiently well-defined that might be satisfactory. In general, I think that doubts about the adequacy of the description should be resolved in favour of the witness.
In the present case the documents are described in the schedule to each of the witness summonses in broad terms of the kind that would be appropriate to an application for disclosure but which fail to identify the documents with sufficient certainty to enable the witness to know what is required of him. I am satisfied, therefore, that the judge was right to set aside the witness summonses on this ground and that it is unnecessary to consider the other matters on which the witnesses relied in support of their applications.’


[2005] EWCA Civ 1218




England and Wales


CitedIn re Asbestos Insurance Coverage HL 1985
A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to . .

Cited by:

CitedFinancial Services Authority (FSA) and Others v AMRO International Sa and Another CA 24-Feb-2010
The FSA appealed against an order refusing its request for inquiries and production of accounting records by the defendant accountants to satisfy a request issued by the US Securities and Exchange Commission.
Held: The FSA had properly . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 04 July 2022; Ref: scu.231465