Total E&P Soudan SA v Edmonds & Ors

Under CPR 31.16, the jurisdictional conditions for pre-action disclosure must be distinguished from the subsequent discretionary decision. The threshold is comparatively readily satisfied where the parties are likely to be parties to anticipated proceedings, the documents would fall within standard disclosure, and disclosure would assist fair disposal, settlement or costs. Passing that threshold does not determine whether disclosure should be ordered.

Potential objections based on justiciability or forum non conveniens do not ordinarily prevent disclosure where the underlying claim is arguably justiciable and the documents are directly relevant. Non-justiciability is fact-specific and is not itself a jurisdictional plea. Disclosure may sometimes be needed to crystallise or assess the issue.

Total E&P Soudan S.A. applied under CPR 31.16 for pre-action disclosure from Philippe Edmonds, Andrew Groves and White Nile Limited.

Total alleged that it held contractual petroleum rights in Block B, including Block Ba, and that the respondents had negotiated and obtained apparently inconsistent rights in Block Ba. It sought documents concerning the respondents’ dealings with authorities in Southern Sudan, their knowledge of Total’s rights, and the rights purportedly granted to White Nile.

The respondents argued that the potential claim might be non-justiciable in England, that England was not the appropriate forum, that the claim lacked reasonable prospects, and that parts of the request were excessive. The central issues were whether the statutory conditions for pre-action disclosure were met and whether disclosure should be ordered in the court’s discretion.

1. Application granted. The court ordered disclosure of all categories sought, subject to the applicant’s undertaking to use the documents only in connection with the proposed proceedings. The order was to preserve the equivalent protection provided by CPR 31.22.
2. Following Black v Sumitomo Corporation [2002] 1 WLR 1562, “likely” in CPR 31.16(3)(a) and (b) means “may well”. The documents in categories 1–10 were specifically referred to in the respondents’ AIM Circular and would fall within standard disclosure if proceedings were commenced. Disclosure could clarify the timing and nature of the respondents’ activities and knowledge, and assist Total in deciding whether to litigate and formulating its case.
3. The court stressed that satisfying the jurisdictional threshold does not determine the exercise of discretion. The court had to consider whether disclosure would fairly dispose of the anticipated proceedings, assist settlement or save costs, while weighing the respondents’ objections.
4. Non-justiciability is not a jurisdictional plea. It is fact-specific and may require statements of case, and sometimes disclosure, before the relevant issue can properly be identified. The potential claim could concern inducement of the State of Sudan to breach contractual obligations, rather than requiring the court to determine the constitutional validity of rival governments’ concessions. The alleged tort involved an objective test of intention and did not require a desire to injure.
5. The possible forum non conveniens objection did not justify postponing disclosure. Given the narrow and largely public nature of the documents, the respondents would need to show a very strong prospect of successfully resisting English jurisdiction before disclosure could be refused on that basis. Category 11 was broader, but remained sufficiently confined by the relevant dates and subject matter to justify inclusion.