Total E & P Soudan SA v Edmonds & Ors

Pre-action disclosure under CPR rule 31.16 requires a jurisdictional gateway and a distinct discretionary assessment. The gateway is met where there is a real prospect in principle that disclosure will fairly dispose of anticipated proceedings, assist their avoidance, or save costs. The court must then assess the detailed circumstances.

Such an application is a case-management decision. The court should take a broad view of the prospective merits and should not ordinarily determine complex, debatable defences concerning justiciability or forum. Targeted documents likely to clarify central issues and permit focused pleading may justify disclosure. A broadly defined residual class will not do so unless its standard-disclosure scope is established.

Total claimed exclusive petroleum exploration and production rights over Block B in southern Sudan. White Nile claimed rights over Block Ba, an area comprising much of Block B, under arrangements with the southern Sudanese authorities.

Total contemplated economic-tort claims. It sought pre-action disclosure under CPR rule 31.16 concerning the respondents’ dealings with those authorities, their knowledge of Total’s rights, and the agreements under which White Nile asserted its rights. Tomlinson J in the Commercial Court ordered disclosure of documents and classes numbered 1 to 11, and made no order for costs.

The respondents appealed. The central issue was whether the disclosure order was within the rule and a proper exercise of discretion, particularly given objections based on justiciability, forum, and the breadth of category 11.

1. Appeal allowed in part. Tuckey LJ, with whom Jacob and Moore-Bick LJJ agreed, upheld the order for documents 1 to 10 but deleted category 11.

2. The court applied the two-stage approach in Black & ors v Sumitomo Corporation and others [2001] EWCA Civ 1819. Under CPR rule 31.16(3), the court must first identify a real prospect in principle that pre-action disclosure will serve one of the stated purposes. It must then exercise discretion on the detailed facts. The stages may overlap, but the court must not mistake satisfaction of the low jurisdictional threshold for the discretionary decision.

3. Documents 1 to 10 were likely to fill material gaps about the commencement of the respondents’ dealings with the southern Sudanese authorities and their knowledge of Total’s asserted rights. They would enable Total to plead a more focused case. That was sufficient to make disclosure desirable for the fair disposal of prospective proceedings under rule 31.16(3)(d)(i), even though the court did not rely on the settlement or costs limbs.

4. A rule 31.16 application is a case-management decision requiring a broad merits assessment. The court should not ordinarily investigate legally complex and debatable potential defences or grounds for a stay, including justiciability and appropriate forum. Those matters are better addressed after proceedings have begun and the issues are defined. The position differs where a respondent can show beyond argument that the claim is hopeless or non-justiciable, or that disclosure itself raises an issue such as sovereign confidentiality.

5. The request for documents 1 to 10 was targeted rather than a fishing expedition. The documents had been identified in a public circular, several had been available for inspection, commercially sensitive material could be redacted, and Total offered reciprocal disclosure. The judge’s discretionary assessment disclosed no error.

6. Category 11, seeking all other agreements, correspondence and meeting notes, was insufficiently defined. As originally framed it did not meet rule 31.16(3)(c), because the court could not determine its standard-disclosure scope and that question could not be left to White Nile. Even assuming jurisdiction after later narrowing, disclosure was not justified merely to obtain a complete picture. Category 11 was therefore deleted.

• Court of Appeal (Civil Division) — In [2007] EWCA Civ 50, the respondents’ appeal was allowed only to the extent of deleting category 11 from the pre-action disclosure order.

• Commercial Court — Tomlinson J ordered pre-action disclosure of documents and classes 1 to 11 under CPR rule 31.16 and made no order for the costs of the application.