EDO CORPORATION V ULTRA ELECTRONICS LTD

[2009] EWHC 682 (Ch), Chancery Division, Bernard Livesey QC, sitting as a judge, 1 April 2009

Arbitration – Allegation of breach of contract involving use of confidential information – Application to court for disclosure of information – Whether court had jurisdiction to grant application – Arbitration Act 1996, sections 9 and 44 – Supreme Court Act 1981, section 33(2) – Civil Procedure Rules, Part 31.16

Where the parties have agreed to refer their dispute to arbitration, the court has no jurisdiction under section 33(2) of the Supreme Court Act 1981 and CPR 31.16 to make a pre-action order for disclosure of documents by the potential defendant. In such circumstances it cannot be said that the applicant is a likely party to judicial proceedings, even if certain of the claims fall outside the scope of the arbitration clause. The court’s powers are limited to those set out in section 44 of the Arbitration Act 1996, but those can be exercised only if the arbitrators themselves cannot act.