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

On an amendment application, the court must allow a pleaded case with a real, rather than fanciful, prospect of success unless its factual basis is entirely without substance, unsupported by a prima facie evidential basis, or insufficiently particularised. Apparent implausibility and disputed authenticity should generally be tested at trial where further evidence may emerge.

A stay of claims for a later preliminary trial is a case-management decision governed by overall justice, including duplication, cost, delay and prejudice. Claims that disclose no sustainable cause of action may be struck out despite a possible future evidential development.

Inspection of disclosed documents remains discretionary. Delay may remove urgency but does not necessarily defeat inspection, particularly where inspection is sought to identify a wrongdoer in a potential separate action.

The claimants, companies formerly involved in energy-sector research and engineering, sued an Italian oil company and its subsidiaries concerning a compressed natural gas project at the Goliat field. They alleged breaches of exclusivity, best-endeavours and confidentiality obligations, and infringement of database rights.

The applications concerned proposed amendments relying on an allegedly anonymous document, strike-out of the tariff-model claims, inspection of a USB stick containing privileged documents, and costs arising from abandoned or struck-out claims. The central issues were whether the document-based pleading had a real prospect of success, whether the tariff-model claims should be stayed or struck out, whether inspection should be ordered, and how costs should be allocated.

1. Amendments. The amendments relying on the document were permitted. Applying the test stated in Elite Property Holdings v Barclays Bank plc [2019] EWCA Civ 204, the court had to decide whether the proposed case had a real rather than fanciful prospect of success. Even assuming that the document was not a genuine forwarding of the earlier email exchange, it might contain a genuine copy of the later exchange. Metadata had not been investigated, and witnesses could give relevant evidence at trial. The authenticity issue therefore could not be resolved with sufficient confidence at the directions stage.
2. Tariff Model Claims. The claimants accepted that their amended pleading disclosed no sustainable cause of action. A stay would create substantial duplication of documentary and oral evidence and materially increase cost and court time. Applying the case-management considerations identified in Steele v Steele [2001] C.P. Rep 106, the overriding question was whether a preliminary issue was just. It was not. The tariff-model claims were struck out.
3. USB inspection. Inspection was not sought for an issue in the action, but to identify the alleged source of a leak for a possible separate claim. The court retained a discretion under CPR 31.3, consistent with Derby v Weldon (No.9) [1991] 1 WLR 652. Delay removed any claim of urgency but did not defeat the application. The defendants’ purpose remained valid, prejudice to the claimants was limited, and use of inspected material could be restricted to investigating the leak. Specific inspection was therefore granted on terms protecting privilege and confidentiality.
4. Costs. Costs thrown away by the abandoned best-endeavours causation case were limited to costs exclusively referable to that case. The claimants were liable for costs of the voluntarily abandoned tariff-model pleading, with an interim payment of £735,500, £690,000 to be paid from security for costs and the balance by the claimants. Costs of the agreed specific-disclosure application were costs in the case.