England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 June 2009

Mr Justice Eady :

1. On 5 June 2009 I heard an application on behalf of the Claimants, Mr Stuart Peters and Mr Mitchell Thomas, to set aside witness summonses in accordance with the jurisdiction under CPR 34.4(2). This simply provides that where the court has issued a witness summons in aid of an inferior court or of a tribunal it may be set aside. In the present case the background is an arbitration between the Defendant, Mr Skylet Andrew, and a footballer called Jermain Defoe.
2. It is provided by s.43 of the Arbitration Act 1996 that a party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness, whether to give oral testimony or to produce documents. This may only be done with the permission of the tribunal or the agreement of the other parties. On 3 March 2009 Mr Andrew was granted permission by the arbitrators to apply to the High Court to issue witness summonses in relation to the Claimants' mobile phone operators Vodafone and O₂. The witness summonses were issued accordingly and the Claimants now apply to have them set aside.
3. The principles applicable upon such an application were conveniently summarised by Gross J in South Tyneside Borough Council v Wickes Building Supplies [2004] EWHC 2428 (QB) at [23] (albeit this was based in large measure upon authorities dating from before the CPR came into effect in April 1999):

i) The object of a witness summons is to obtain production at trial of specified documents; accordingly, the witness summons must specifically identify the documents sought, it must not be used as an instrument to obtain disclosure and it must not be of a fishing or speculative nature.

ii) The production of the documents must be necessary for the fair disposal of the matter or to save costs. The court is entitled to take into account the question of whether the information can be obtained by some other means. It is to be remembered that, by its nature, a witness summons seeks to compel production from a non-party to the proceedings in question.

iii) Plainly a witness summons will be set aside if the documents are not relevant to the proceedings; but the mere fact that they are relevant is not by itself necessarily decisive in favour of the witness summons.

iv) The fact that the documents of which production is sought are confidential or contain confidential information is not an absolute bar to the enforcement of their production by way of witness summons; however, in the exercise of its discretion, the court is entitled to have regard to the fact that documents are confidential and that to order production would involve a breach of confidence. While the court's paramount concern must be the fair disposal of the cause or matter, it is not unmindful of other legitimate interests and that to order production of a third party's confidential documents may be oppressive, intrusive or unfair. In this connection, when documents are confidential, the claim that their production is necessary for the fair resolution of proceedings may well be subjected to particularly close scrutiny.

v) The court has power to vary the terms of a witness summons but, at least ordinarily, the court should not be asked to entertain or perform a redrafting exercise other than on the basis of a considered draft tendered by the party's advocate.

Gross J added his own observation to the effect that, while the factors to which he had referred were entitled to individual consideration, the court would always look at the matter as a whole. Moreover, in the exercise of the court's discretion, the weight to be given to individual factors is bound to vary depending on the facts of the case.

4. Here the dispute turns largely upon whether the material sought by means of the witness summonses can be properly characterised as necessary and relevant for the purposes of the arbitration proceedings. Although not binding upon me, the affirmative decision of the arbitrators on this issue is plainly entitled to respect. I need to bear in mind their close familiarity with the issues acquired over several months.
5. Mr Peters and Mr Andrew are both football agents. On 22 January 2007 Mr Andrew and Mr Defoe entered into a representation agreement, at which time Mr Defoe was playing for Tottenham Hotspur.
6. On 18 October 2007 Tottenham appointed Mr Peters as its exclusive agent. The letter of appointment stated that Mr Defoe no longer wished to use the services of Mr Andrew and that he wished to terminate the subsisting agency agreement with immediate effect. On 22 November 2007 Mr Defoe purported to terminate his agreement with Mr Andrew. Shortly thereafter, Mr Andrew informed the player that he was entitled to represent himself, as was indeed the case in accordance with the FA Football Agents Regulations.
7. It then came about, on 31 January 2008, that Mr Defoe's services were lent by Tottenham Hotspur to the Portsmouth Football Club. His registration was correspondingly transferred in February of that year. For the purpose of these transactions, Mr Peters was acting for Tottenham in his capacity as their sole agent. Later, Mr Defoe was transferred back from Portsmouth to Tottenham Hotspur.
8. It was on 6 May 2008 that Mr Andrew gave notice of arbitration to Mr Defoe. Neither of the Claimants is a party to that arbitration, and for that reason they are not wholly familiar with the detail of those proceedings. That obviously places them, to some extent, at a disadvantage when it comes to making assessments of the critical questions of necessity and relevance.
9. Mr Andrew's case against Mr Defoe appears to involve the contention that Mr Defoe was not permitted to terminate his agreement in the manner he chose. Furthermore, it is part of his case that the agreement entitled Mr Andrew to contractual commission. It is central to his contentions, as Mr Afeeva confirmed in argument before me, that Mr Thomas (not a registered agent) was being used impermissibly by Mr Defoe in relation to the transfer negotiations and that Mr Peters was being used as a "front" to disguise that. Mr Defoe's response is that he lawfully terminated the agreement on 22 November 2007. Accordingly, Mr Crystal on behalf of the Claimants submits that, if Mr Defoe is correct in this contention, it must follow that anything which occurred subsequently could have no relevance to the issues in the arbitral proceedings. So far, however, it has not been decided.
10. A direction was given ("Directions 5") by the arbitral tribunal granting permission for a witness summons to secure the attendance of Mr Thomas and for the production of documents showing the itemised phone bills of both Claimants. Mr Peters and Mr Thomas gave evidence in person on 13 and 14 November respectively of last year, although telephone records were not at that stage forthcoming from their service providers.
11. On the final day of the hearing, Mr Andrew asked for an adjournment so as to enable the telephone records to be obtained and analysed. This was refused.
12. Nevertheless, it is at this point necessary to record the remarks made by the Chairman of the arbitral tribunal in an email of 16 December 2008:

" When an application was made on the final day of the arbitration for an adjournment to enable phone records to be obtained and analysed, it was refused. However although we refused the application for an adjournment we made clear that the award would not be made until after the claimant had had a reasonable opportunity to consider the phone records which Jermain Defoe, Sandra St Helen [Mr Defoe's mother] and Mitchell Thomas were willing to produce. Any application to adduce further evidence which might require the recalling of witnesses for further cross-examination would require a most compelling case to be made.

Thus subject to any application to adduce further evidence, evidence has now closed and we are preparing our award. It must be entirely a matter for the claimant whether he is able to obtain any further evidence which might support an application to adduce further evidence. We did not understand that telephone records from Mr. Peters were still being sought but we did understand that Mr. Defoe and Sandra St. Helen were willing to produce their records. We understood from the parties that Mr. Thomas was prepared to produce such records as he could obtain, although I do not have a note that he was actually asked in cross-examination whether he would be willing to look for and obtain these records to be produced later.

In those circumstances if the claimant wishes to make any application to adduce further evidence it must be made very promptly."

13. On 23 December, a week later, Mr Andrew sought a postponement of the decision. In due course, on 15 January 2009, a further direction was given ("Directions 7"). It was said inter alia that an oral hearing would be required to determine whether any further evidence should be adduced. The following passages are material:

"3. Since that email was sent [i.e. on 16 December] there has been a material development in the evidence available which may cause us to revise our view as to whether the telephone records are relevant and necessary for the determination of the issues. We have been provided with a schedule of phone calls which appears to show frequent and lengthy telephone communication between Mitchell Thomas and Jermain Defoe and Sandra St. Helen in the period up to 30 January 2008 But we understand none of those persons has actually disclosed full telephone records for 31 January, the critical day on which, according to the evidence from the respondent's witnesses, the transfer terms were actually negotiated at Portsmouth by Jermain Defoe himself. It is remarkable that phone records have not been produced for the day of 31 January or that, to the extent they have, they show no communications at all with Mitchell Thomas, in contrast to the pattern of prior weeks.

4. We are informed that the claimant has issued proceedings in the High Court against Mitchell Thomas and Stuart Peters for contempt in failing to produce the telephone records required by the witness summonses issued, and that an application is listed for 4 February. However it appears that no steps have been taken to compel production from Jermain Defoe or Sandra St Helen under the witness summonses issued against them on 3 November 2008.

5. However we have been requested by the claimant to defer delivering the award until Jermain Defoe and Sandra St Helen have produced all the telephone records which were required by the witness summonses.

6. At this stage there has been no application on behalf of the claimant to adduce further evidence. But it appears very likely that such an application would be made if further telephone records were produced which showed telephone calls between Mitchell Thomas and Jermain Defoe or Sandra St Helen on 31 January 2008. Indeed if it is argued that the records produced falsify the evidence which was given to the tribunal, then given the importance of the evidence to the central issue it must necessarily follow that that contention would need to be tested in further cross-examination. We would not regard it as satisfactory for the tribunal to be asked on this point to draw adverse inferences from records which have not been put to the relevant witnesses in cross-examination.

…

10. We indicate that, if persuaded that there should be any further evidence, then in the light of (a) the oral evidence given at the hearing by the respondent's witnesses, (b) what has been disclosed in the telephone records leading up to 30 January 2008 and (c) what has not been disclosed for the day of 31 January, we might now regard as relevant and necessary to determine the issues in the arbitration the following categories of itemised phone records held by any of Defoe, St Helen, Thomas or Peters evidencing:

(1) calls between (1) Defoe or St. Helen and (2) Thomas or Peters between 15 January and 15 February 2008;

(2) calls between (1) Defoe or St Helen or Thomas and (2) Peters, Levy, Redknapp or Storrie between 15 January and 15 February 2008;

(3) any calls made by Defoe or St. Helen on 31 January 2008.

11. We therefore invite the Respondent to state which telephone records for Jermain Defoe and Sandra St. Helen are available and, in particular, why full telephone records for the day of 31 January cannot be produced. Our understanding at the conclusion of the substantive hearing was that Jermain Defoe, Sandra St Helen and Mitchell Thomas were all willing to produce such records as they could obtain from their telephone service providers."

14. A further hearing took place on 2 March 2009, which gave rise to further directions ("Directions 8") of 3 March. These contained the permission to apply for issue of the witness summonses now before me. The period for which the phone bills are required runs from 15 January to 15 February 2008. Although at that stage permission was declined to issue witness summonses for the purpose of recalling witnesses for further cross-examination, Mr Afeeva told me that it is not the case that inferences will be invited to be drawn from the phone bills without any opportunity for further oral evidence. Mr Peters and Mr Thomas would be given the opportunity to give any explanation they wished.
15. Mr Crystal submits that I should conclude that since Mr Peters was acting for, and only for, Tottenham Hotspur it cannot be relevant to the issues in the arbitration who he was speaking to on his mobile during the relevant period. The arbitrators are of a different view, however, since one of the issues before them is that this was a sham (for the reasons explained by Mr Afeeva).
16. Mr Crystal rightly points out that Mr Peters could have been joined to the arbitration as a party if it is sought to allege that he had been assisting in procuring a breach of Mr Defoe's contractual obligations. That may be so, but in itself it does not prevent the allegation being in issue before the arbitral panel.
17. Another suggestion is that the witness summonses can be classified as a "fishing expedition". I am not sure, on the other hand, that this is a fair characterisation when the panel has clearly decided, on the basis of the information that there were many communications between the relevant persons, that they need to see the phone bills to have the full picture before them when invited, as they ultimately will be, to draw the inference of impropriety.
18. One of the matters I have to consider is whether the inevitable intrusion into the private affairs of Mr Peters and Mr Thomas is proportionate and/or necessary to achieve the objective sought. It will be recalled that the intrusion would be limited to establishing how many communications there were between the particular persons over a limited period of time. It is not suggested that the content of those calls should be disclosed. This is against the background that some of the calls which took place between the relevant people are already in evidence. What is now required is more detail to complete the picture. Where an inference is invited from a set of circumstances, it is generally preferable not to decide the matter on only a partial assessment of those circumstances. That is what lies behind the witness summonses in this instance. The panel clearly thought it necessary to have the information in that context. It is hard to disagree with its reasoning. Can it be said that the intrusion into the Claimants' affairs is proportionate to achieving that objective? It seems to me that it is. It is very limited. Moreover, there would be no other obvious way of obtaining it.
19. Mr Crystal argues that there is a collateral purpose afoot; namely that Mr Andrew intends to complain to the FA of misconduct on Mr Peters' part. He says that he should not be permitted to do so on the basis of documents obtained by compulsion, by means of a court order, in the arbitral proceedings.
20. He refers additionally to Rule F (of the FA Rules) which empowers the FA itself to require or request production of documents. Yet, in the case of an earlier inquiry into Mr Defoe's transfer to Portsmouth, the FA did not seek to exercise its powers to require any documents from Mr Peters or request any documents from Mr Thomas. It may be supposed, he submits, that it is a reasonable inference that Mr Andrew now wants these telephone accounts for the purpose of persuading the FA to take a second bite at the cherry and re-investigate that transfer. Even assuming that to be so, it would not be a reason for setting aside the witness summonses if they would otherwise be appropriate. In any event, as Mr Afeeva emphasises, the FA would be entitled to call for Mr Peters' telephone accounts anyway. They are not dependent on obtaining them as a by-product of the arbitral process. There is correspondingly less reason to infer that this provides Mr Andrew's motivation for the witness summonses
21. I am not persuaded, having regard to the principles identified above, that there is any reason to set aside the witness summonses.