BP Gas Marketing Ltd v Centrica Storage Ltd

Pre-action disclosure under CPR 31.16 requires more than a real prospect that disclosure may assist the litigation. The applicant must first show that the respondent’s standard disclosure duty would very likely extend to the documents sought and that disclosure is desirable for one of the purposes specified in the rule. The court must then exercise its discretion having regard to the particular context and detail of the case.

Pre-action disclosure remains unusual in substantial TCC litigation. Relevant considerations include the clarity of the issues, the nature and specificity of the documents, information asymmetry, the applicant’s ability to formulate its case, the pre-action protocol, privilege, possession or control, and the burden of an early search. A case should differ significantly from the normal case before an order is made.

BP sought pre-action disclosure from Centrica under CPR 31.16 in connection with a potential claim arising from an explosion at the Rough 3/B offshore gas storage facility. The parties’ storage services contract contained a force majeure provision. Centrica relied on that provision and limited its liability, while BP contended that the explosion could have been avoided by reasonable steps and claimed a substantially larger sum.

BP requested 15 documents or classes of documents concerning the cause of the explosion, the heat exchanger’s design and suitability, inspection and maintenance, and related investigations. The issues were whether CPR 31.16(3)(c) and (d) were satisfied and, if so, whether disclosure should be ordered in the court’s discretion.

1. Jurisdiction. The application was dismissed. The court accepted that the parties were likely to be parties to subsequent proceedings. The requirement in CPR 31.16(3)(c) was satisfied for at least some documents because Centrica bore the burden of proving force majeure and would very likely need documents concerning the explosion mechanism and the steps that could have avoided it.
2. Desirability. There was a real prospect that disclosure would assist the fair disposal of proceedings and save the costs of later amending BP’s case. There was no real prospect, on the evidence, that disclosure would resolve the dispute without proceedings.
3. Discretion. Satisfaction of the jurisdictional conditions did not make an order inevitable. Following the guidance in Black v Sumitomo Corporation [2002] 1 WLR 1562, the court considered the application in its factual and procedural context. The information asymmetry was not sufficiently marked, and BP could formulate its case without pre-action disclosure. The potential costs saving was not unusual or distinctive.
4. Pre-action disclosure is unusual in TCC litigation, where extensive disclosure is commonly required after proceedings begin. The TCC Protocol supported early exchange of information, but it did not require the parties to marshal and disclose all supporting evidence before action. BP’s failure to formulate its positive case before applying weighed against relief, although it was understandable in light of Centrica’s earlier refusal to provide documents.
5. The nature of particular requests also militated against an order. Some raised privilege issues, some documents were not within Centrica’s possession or control, some requests required a substantial search, and certain design documents were general background material. The application was therefore dismissed.

First-instance application in the High Court (Technology and Construction Court). No appellate history is stated in the judgment.