Mitsui & Co Ltd v Nexen Petroleum UK Ltd

Norwich Pharmacal relief against an innocent third party is a remedy of last resort. The applicant must show an arguable wrong, a genuine need for information to bring proceedings, and that the respondent was mixed up in the wrongdoing and can supply the necessary information.

Necessity requires the absence of another practicable source. Where the likely wrongdoer is amenable to pre-action disclosure under the CPR, relief against an innocent third party should ordinarily be refused. A contractual promise not to solicit offers does not ordinarily prevent negotiation with a third party after that party has made an unsolicited offer.

The claimant alleged that EnCana Corp had orally agreed not to solicit third-party offers for its interest in the Buzzard Field and, if it received a bona fide offer, to notify the claimant and allow it to respond. EnCana instead sold the defendant, which held the relevant interest, to a Nexen group company.

The claimant sought Norwich Pharmacal disclosure and an affidavit from the defendant to investigate a possible contractual claim against EnCana. The defendant was no longer connected with EnCana after the sale. The central issues were whether the alleged non-solicitation obligation extended to negotiations following an unsolicited approach, and whether Norwich Pharmacal relief was necessary and available against the defendant.

1. Application dismissed. The claimant could obtain the information required from EnCana, the likely defendant to the proposed contractual claim, by pre-action disclosure. Norwich Pharmacal relief against the defendant was therefore not necessary.

2. The court construed the alleged First Limb narrowly. An obligation not to solicit offers did not prevent EnCana from responding to, negotiating with, supplying information to, or concluding a transaction with a third party that had made an unsolicited approach. Once such an approach had occurred, the alleged Second Limb governed: it required notice of the offer and an opportunity for the claimant to respond. Any relief would consequently have had to be confined to information concerning whether EnCana solicited the offer.

3. Applying Norwich Pharmacal v. Customs & Excise Commissioners [1974] AC 133, the court identified three requirements: an arguable wrong by an ultimate wrongdoer; a need for information to enable proceedings; and a respondent mixed up in the wrongdoing who can provide the information. For an innocent third-party respondent, necessity means that it is the only practicable source of the essential information.

4. The claimant could in principle obtain pre-action disclosure from EnCana. EnCana was the likely defendant, had registered in England as an overseas company, and had submitted to the court’s jurisdiction. Under the CPR, the claimant could meet both the low jurisdictional threshold and the discretionary requirements. The inability to plead every detail before disclosure did not prevent a sufficient provisional pleading for that purpose. Rule 31.18 preserved, but did not enlarge, the Norwich Pharmacal jurisdiction.

5. Two independent grounds also supported refusal. Holdings, the seller and EnCana’s continuing subsidiary, was a more appropriate source than the defendant. Further, there was no evidence that the defendant had facilitated the only potentially relevant breach, namely solicitation of an offer. Subsequent negotiation after an unsolicited offer could not constitute that breach.

not stated in the judgment.