‘Impermissible’ Non-party Disclosure: VXJ v FY and Obtaining Evidence Under the UK Arbitration Act 1996

At a Glance

• In VXJ v FY [2025] EWHC 2394 (Comm), the High Court of Justice in England & Wales dismissed an application pursuant to sections 43 and 44(2)(c) of the Arbitration Act (the Act) to obtain evidence from non-parties to an arbitration.
• In rejecting the application, the High Court stressed that these powers are not a substitute for a disclosure regime against non-parties, and reinforced the principle that parties’ requests must identify specific documents and demonstrate their relevance.
• The High Court also clarified that to succeed under section 44(2), the application must pertain to the document itself as a medium, rather than its contents, and therefore could not be used to circumvent an unsuccessful application under section 43.

Background

This case concerned arbitral proceedings brought by FY (first defendant or D1) against VXJ for breach of an investment agreement. VXJ applied to obtain various documents held by RH (second defendant or D2) and XL (third defendant or D3) — the controlling shareholders and parents of D1 — who were closely connected to the dispute but not themselves parties to the investment agreement or the arbitration. The tribunal recognised that D1 could not compel its parent companies to produce any documents, so VXJ applied to the High Court under section 43 of the Act, seeking summonses to secure the attendance of D2 and D3 as witnesses before the arbitration and, in the alternative under section 44(2)(c) of the Act, seeking an order to copy the documents.

Section 43 — Not an Instrument to Obtain Disclosure

Section 43 of the Act states that a party to arbitral proceedings may use the same court procedures as are available in legal proceedings to secure the attendance of witnesses or produce documents.

In addressing VXJ’s section 43 application, the High Court distinguished between disclosure (the equivalent of U.S. document discovery) between parties to the proceedings, which is typically broad, and the production of specific documents from non-parties, which must be narrowly defined and precisely targeted. It outlined several key requirements:

• The application must only be made with the tribunal’s consent or agreement of the other parties.
• The witness summons must identify the documents sought with sufficient certainty.
• The tribunal must be satisfied that specific documents exist and are not merely conjectural.
• The documents must be relevant to the proceedings.
• The documents must be necessary for the fair disposal of the matter, or to save costs.
• The witness must not be required to undertake an unfairly burdensome search to find the documents.

The High Court rejected VXJ’s application on the grounds that it was too broad and constituted an impermissible request for non-party disclosure, requiring D2 and D3 to exercise their own judgment to conduct searches and identify responsive documents. Although section 43 of the Act provides a mechanism by which parties can seek disclosure from a non-party, the High Court reaffirmed that its scope is more restrictive than the standard disclosure requirements under CPR 31.6.

Section 44(2)(c) — An Alternative Route?

Section 44(2)(c) allows the court to make an order for the production of property that is the subject of arbitration proceedings, or to which a question arises in those proceedings for its inspection, photographing, preservation, custody or detention.

In the alternative to its application pursuant to section 43, VXJ argued that the documents sought from D2 and D3 were “property” for the purposes of section 44(2)(c), and the High Court should make an order empowering it to make copies of those documents by taking photographs. The High Court rejected this, reiterating its reasoning on VXJ’s primary application. It also clarified that “property” for the purposes of section 44(2)(c) refers to a document itself as the medium, not its contents. The wording is not intended to allow applicants to extract informational content in circumvention of section 43. Since VXJ was not concerned with the physical object carrying the information but its contents (the information itself), VXJ’s alternative application also failed.

Key Takeaways

This recent decision sets out the scope of the English court’s powers and factors to be considered when applying for orders in support of arbitration proceedings seated in England pursuant to the UK Arbitration Act 1996.

While sections 43 and 44(2)(c) do provide a means of securing evidence in support of such arbitration proceedings — including from non-parties — their scope is narrow and fact-sensitive. Parties to arbitration proceedings should treat them as tools for obtaining specific, identifiable documents, or physical property itself, and not as a means of achieving wide-ranging “standard disclosure” from a non-party. The tribunal’s permission for such an application to be made is a procedural gating item; the High Court will apply its own thresholds on precision, existence, relevance and necessity.