AMEC Foster Wheeler Group Ltd v Morgan Sindall Professional Services Ltd & Ors

An agent must provide the principal, on demand, with documents relating to the principal’s affairs. The duty is ongoing and extends to documents created during the agency, including documents generated in arbitration proceedings connected with the agency. Later contractual arrangements concerning the conduct of particular proceedings do not displace that duty unless they expressly exclude it. Contractual provisions must be construed against their factual background and with commercial common sense. A third party’s asserted confidentiality does not, without more, qualify an agent’s obligation to provide documents to the principal. A Part 8 claim for production of documents was not subject to the TCC pre-action protocol, and in any event substantial compliance would have sufficed.

AMEC sought declarations and delivery up of pleadings, witness statements, expert reports and payment records relating to two Project Neptune arbitrations between the Secretary of State for Defence and Turner Estate Solutions Ltd. The defendants were conducting the proceedings pursuant to business sale agreements and a later supplemental agreement and name-borrowing arrangement. AMEC contended that the defendants were its agents and were obliged to provide the documents. The defendants relied on the pre-action protocol, contractual limitations, differences between the defendant companies and third-party confidentiality. The central issues were whether an agency relationship existed, whether the supplemental agreement restricted the obligation, and whether confidentiality prevented production.

1. Outcome. AMEC was granted the declarations and document-production relief sought in respect of both arbitrations, subject to consequential matters and costs being dealt with subsequently if not agreed.
2. The first, second and third defendants were appointed as AMEC’s agents under the first business sale agreement, as amended, and the fourth defendant was appointed as agent under the second business sale agreement. The wording was express and the reference to acting as agent or subcontractor did not alter the true construction of the second agreement (paras 28–29).
3. It is a legal incident of agency that the principal may require production of documents relating to the principal’s affairs. The defendants’ duty therefore required them to provide the requested documents on demand. The duty was ongoing and covered documents created during the agency, whenever they came into existence. It extended to the arbitration proceedings connected with performance of the relevant subcontract (paras 30–34).
4. The supplemental agreement did not exclude the wider agency obligation. Its recital recognised the agency, and its document-provision clause was not inconsistent with that obligation. Construed with commercial common sense, the clause covered the relevant proceedings, including both an arbitration commenced by the Secretary of State and one commenced by Turner Estate Solutions. A literal construction producing an irrational distinction between the two arbitrations was rejected (paras 40–45).
5. The agency and document obligations extended to all three Morgan Sindall defendants because the contractual appointment covered the buyer and other members of the buyer’s group (paras 46–49).
6. Third-party confidentiality did not bar production. The defendants had shown no contractual or legal qualification of their unequivocal obligations to AMEC, and the authority relied on concerning confidentiality did not govern an agency relationship (paras 50–56).
7. The TCC pre-action protocol did not apply to this Part 8 document-production claim. Even if it applied, the claimant had complied in substance and a stay would have served no useful purpose (paras 22–25).