Contract – Mining lease – Deed of assignment – Claimant seeking pre-action disclosure as assignee of commercial contract — Whether claimant party to contemplated proceedings — Whether claimant meeting jurisdictional requirements under CPR 31.16 — Whether claimant having realistic prospect of establishing authentic and valid assignment — Whether defendants having duty to produce documents sought by way of standard disclosure — Whether desirable or reasonably necessary to order disclosure – Application dismissed
The claimant purported to be the assignee of all rights to a claim issued against the defendant companies in connection with an agreement concerning the refurbishment of a port and railway line that served a disused mine in Sierra Leone. The applicant applied, pursuant to section 33 of the Senior Courts Act 1981 and CPR 31.16, for pre-action disclosure. It claimed that it needed to assess whether the second defendant had breached its contractual obligation to use all reasonable commercial endeavours to comply with conditions subject to which the government of Sierra Leone had granted it a priority right to use the port and railway.
The second defendant resisted the application. It contended that the claimant had no realistic prospect of establishing that: (i) it was a party to an authentic and valid assignment of the rights in question; and (ii) even if it were, the second defendant had failed to use reasonable endeavours to satisfy the conditions.
Before deciding whether to exercise its discretion to grant pre-action disclosure, the court had to consider whether: (i) the claimant was likely to be a party to the contemplated proceedings; (ii) the claimant had to establish that it had an arguable case for the jurisdiction to be exercised; (iii) there was a realistic prospect of the claimant establishing that it was party to an authentic and valid assignment; (iv) the defendants were under a duty to produce by way of standard disclosure the documents sought by the claimaint; and (v) it was desirable or reasonably necessary to order disclosure.
Held: The application was dismissed.
(1) A claimant had to show only that it and the defendant were likely to be parties if subsequent proceedings were issued. The precondition of “likely” in CPR 31.16 did not require a likelihood of proceedings being issued: Black v Sumitomo Corporation [2001] EWCA Civ 1819; [2002] 1 WLR 1562.
(2) Although the likelihood of proceedings was not material, it did not follow that the existence of a prima face claim on which such proceedings could be instituted did not remain a necessary requirement. The claimant’s suggestion that there had to be an arguable claim because any failure to pay the moneys under the assignment constituted a breach of the assignment, either because the conditions had been satisfied and there were no good grounds for withholding payment or the conditions had not been satisfied because of a failure to exercise best endeavours, was unsustainable: Black and Rose v Lynx Express Ltd [2004] EWCA Civ 447; [2004] BCC 714 considered.
(3) The material that the claimant furnished to authenticate the assignments was unconvincing. The court was doubtful whether the claimant had established a properly arguable case that had a real prospect of success for the purposes of supporting the jurisdiction of pre-action disclosure.
(4) All the documents in respect of which disclosure was sought had to be those that fell within the defendant’s duty to produce by way of standard disclosure. The request in the instant case was a fishing expedition for a range of documents in the hope of advancing an entirely speculative commercial claim.
(5) In order to obtain pre-action disclosure, circumstances had to be outside the normal run, which could not be said of the instant case. The claimant had failed to surmount the jurisdictional hurdle in CPR 31.16(3) and the court would refuse its application for pre-action disclosure: Trouw UK Ltd v Mitsui & Co plc [2007] EWHC 863 (Comm); [2007] UKCLR 921 applied.
Simon Stafford-Michael (instructed by the Khan Partnership LLP) appeared for the claimant; Sarah Harman (instructed by Memery Crystal LLP) appeared for the respondents.
Eileen O’Grady, barrister
