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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> W v X Company  EWHC 3430 (Comm) (20 December 2017)
Cite as:  EWHC 3430 (Comm)
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
London, EC4A 1NL
B e f o r e :
|- and -
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Mr Yash Kulkarni of Counsel appeared for the Defendant
Crown Copyright ©
THE HONOURABLE MRS. JUSTICE CARR :
DISCLOSURE IN THE TRIBUNALS
W'S POSITION ON THE APPLICATIONS
a) Correspondence with Mr A by reference to orders of 29th May, 4th and 6th June 2017;
b) Documents relating to the purchase of Vessel "E" by reference to orders of 13th June, 18th June and 8th July 2017;
c) Contractual documents for purchase and on-sale of five vessels by reference to orders of 1st May and 18th June 2017;
d) Information in respect of the five vessel transactions by reference to orders of 18th June and 13th November 2017.
Y'S POSITION ON THE APPLICATIONS
"42. Enforcement of peremptory orders of tribunal.
(1) Unless otherwise agreed by the parties, the court may make an order requiring a party to comply with a peremptory order made by the tribunal.
(2) An application for an order under this section may be made—
(a) by the tribunal (upon notice to the parties),
(b) by a party to the arbitral proceedings with the permission of the tribunal (and upon notice to the other parties), or
(c) where the parties have agreed that the powers of the court under this section shall be available.
(3) The court shall not act unless it is satisfied that the applicant has exhausted any available arbitral process in respect of failure to comply with the tribunal's order.
(4) No order shall be made under this section unless the court is satisfied that the person to whom the tribunal's order was directed has failed to comply with it within the time prescribed in the order or, if no time was prescribed, within a reasonable time.
(5) The leave of the court is required for any appeal from a decision of the court under this section."
a) The purpose of s.42 is to expose a non-compliant party to an order for contempt if he breaches the court order;
b) The proper role of the court is to support the arbitral process rather than review the tribunal's exercise of its power to issue peremptory orders;
c) Whilst the court should not act as a "rubber stamp" on tribunal orders, it is not necessary for the court in every case to satisfy itself that the orders ought to have been made, in a sense the court must review the tribunal's decision;
d) In general terms the court might decide not to make an order that a party comply when such an order is not required in the interest of justice to assist the functioning of the arbitral process, for example because there has been a material change of circumstance since the peremptory order was made or where the tribunal can be seen not to have acted fairly or impartially.
Category (1): correspondence with Mr A
"..if it is asserted that the correspondence is not in their possession and control, precisely what searches have been made for it in their files."
The deadline was 7th June 2017. On 4th June 2017 another peremptory order was made that Y produce by 5pm on 7th June:
"…all correspondence of Mr D and Mr C with any person, other than Broker 2, relating to the sale of the Vessels and Vessel "E". This includes any and all correspondence with Mr A with regard to these transactions."
"a statement from Mr D and Mr C explaining the precise nature of the searches they have made in their files or those of XCo or Y for documents described… above."
The tribunals repeated this on 6th June with a new deadline of 5pm on 9th June 2017.
Category (2): documents relating to the purchase of Vessel "E"
"..appropriate statements… by Mr D and Mr C detailing the searches which have been made in their own files and the requests made to Broker 1 to procure the production of the relevant material from Broker 1's files."
Category (3): contractual documents for the purchase and on-sale of the five vessels
Category (4): information relating to five vessel transactions
"…and/or make reasonable enquiries of individuals, servants, intermediaries, agents, representatives who were involved."
No answer has been provided by either individual or Y at all, save by reference to the individuals' personal knowledge.