Blue Power Group SARL & Ors v ENI Norge AS & Ors

Summary judgment requires the court to decide whether the claim has a real, rather than fanciful, prospect of success and whether there is another compelling reason for trial. The court must avoid a mini-trial, especially where causation depends on the hypothetical decision of a third party, and should consider evidence reasonably likely to become available at trial. Untested evidence from a non-decision-maker will rarely establish that a claimant has no realistic prospect of proving a lost chance. A best-endeavours claim based on a third party’s hypothetical consent may therefore proceed where disclosure and evidence from the actual decision-makers could affect the outcome. A pleading claiming loss of profits for breach of a best-endeavours obligation is impermissible where the recoverable loss is confined to loss of a chance.

The claimants, companies involved in CNG technology, sued an Italian oil company and its subsidiaries concerning a proposed CNG export project. They alleged breaches of exclusivity, best-endeavours and information obligations under an exclusive framework agreement. The relevant application sought summary judgment on the best-endeavours claim, on the basis that the third-party licence partner would never have consented, and sought to strike out the alternative pleading for loss of profits. The defendants also sought responses to requests for further information. The central issues were whether the causation case depended on matters requiring trial and what particulars had to be provided before disclosure.

1. Best-endeavours claim. The court had to assume, for the application, that the claimants would prove a breach of the obligation to use best endeavours. The question was whether there was no realistic prospect of proving at trial that the third party would have consented if reasonable further steps had been taken.
2. Where causation depends on the hypothetical conduct of a third party, the court is not bound to accept that party’s evidence about what it would have done. Untested evidence from a person who was not the decision-maker, before disclosure and cross-examination, was insufficient here. The possibility of further documents, third-party disclosure and evidence from other decision-makers meant that the issue was premature for summary determination.
3. The contemporaneous documents gave the defendants powerful arguments, including the third party’s preference for reinjection and its adverse assessment of CNG. They did not eliminate the possibility that earlier conduct, or further evidence about the decision-making process, could have affected the decision. The application for summary judgment on this claim was dismissed.
4. Loss pleading. It was common ground that breach of the best-endeavours obligation could support only a claim for loss of a chance, whereas the alleged breach of exclusivity could support a claim for loss of profits. The rolled-up pleading was therefore defective to the extent that it claimed loss of profits for breach of best endeavours. That part was struck out, subject to a minor clarificatory amendment.
5. Further information. The claimants were required to respond to the defendants’ request. Particulars of quantum and the facts and matters presently relied upon had to be provided without waiting for disclosure or expert reports. Where information genuinely depended on disclosure, that could be stated in answer to the relevant request, but it did not justify refusing to respond altogether. The response was directed by 17 September 2018.

First-instance decision. The judgment does not state any prior appellate decision.