Total E&P Soudan SA v Edmonds & Ors [2006] EWHC 1136 (Comm)

[2006] EWHC 1136 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/05/2006
Before
MR JUSTICE TOMLINSON
Between
TOTAL E&P SOUDAN S.A.ApplicantPHILIPPE HENRI EDMONDSRespondentsANDREW STUART GROVESRespondent(3) WHITE NILE LIMITEDRespondent
Christopher Greenwood QC and Sam Wordsworth (instructed by Messrs Freshfields Bruckhaus Deringer) for ApplicantSelwyn Bloch QC and Stuart Ritchie (instructed by Messrs Williams Holden Cooklin Gibbons LLP) for RespondentsHearing Hearing date: 27 th February 2006
Judgment
[1]This is an application made under CPR 31.16 for pre-action disclosure. It has some unusual features.[2]On 5 November 1980 the Government of the Republic of Sudan concluded an agreement by which the Republic of Sudan granted to a consortium consisting of three companies exclusive rights to conduct petroleum resources exploration and development operations within an area designated as Block B. That is an area in the southern part of Sudan within the Muglad Basin. The evidence suggests that this is an area rich in petroleum reserves. I shall hereafter refer to the Exploration and Production Sharing Agreement of 5 November 1980 as the “1980 EPSA.” The parties thereto, apart from the Government of the Republic of Sudan, were PPC (10%), Total Exploration S.A. (65%) and IEDC (20%). The 1980 EPSA provided for an exploration period of up to ten years and a development and production period of up to forty years. The Total company was identified as the Operator of Block B.[3]Exploratory activities were begun by the Total company. However by 1984 Sudan was engulfed by civil or internal war which rendered difficult pursuit of those exploratory activities. It is said by the Applicant that discussions took place between the Total company and the Government of Sudan at its highest level as a result of which it was in 1985 agreed with the relevant Minister that the exploration activities would be suspended. The outcome is said to have been an agreed cessation of activities since 1985 with the three contracting companies retaining rather than abandoning their contractual rights in relation to Block B. It is said that from time to time there were agreed extensions to the suspension period.[4]By 2004 it was feasible to contemplate the resumption of exploratory activities in Block B. On 21 December 2004 the Government of the Republic of Sudan concluded a Revised Exploration and Production Sharing Agreement in relation to Block B the purpose of which was said to be to amend and modernise the contractual relationship between the Government and those who had, by assignment, succeeded to the interest of the original parties to the 1980 EPSA. I shall hereafter refer to this agreement as the “Revised EPSA.” This agreement recited that the participating interests, and thus the contracting parties, after several assignments were Total E&P Soudan S.A (32.5%), Marathon Petroleum Sudan Limited (32.5%), Kufpec (Sudan) Limited (25%) and Sudapet Limited (10%). Total E&P Soudan S.A is the Applicant. It was identified in the Revised EPSA as the Operator of Block B.[5]The civil or internal war in Sudan came formally to an end on 9 January 2005 with the signature of the internationally brokered Comprehensive Peace Agreement, the “CPA”, between the Government of the Republic of the Sudan and The Sudan People’s Liberation Movement/Sudan People’s Liberation Army. As I understand it the CPA and further instruments prepared pursuant thereto envisage a single federal state wherein the people and Government of Southern Sudan will enjoy autonomy. Six months before the end of an interim period of six years there is to be a referendum affording to the people of Southern Sudan the opportunity to vote for independence. In the language of one of the instruments, the people of Southern Sudan shall either confirm unity of the Sudan by voting to adopt the system of Government established under the CPA or vote for secession. From this it follows, as it seems to me, that the Sudan is at present properly to be understood as a single state.[6]Chapter III of the CPA consists of an Agreement on Wealth Sharing during the Pre-Interim and Interim Period, reflecting that, like other constituent parts of the CPA, it was agreed prior to achievement of the Comprehensive Peace Agreement itself. It covers the division of oil and non-oil revenues, the management of the oil sector, monetary authority and the reconstruction of the South and war-affected areas during the Pre-Interim and Interim Period. The provisions of the Wealth Sharing Agreement include the following: - “2. Ownership of Land and Natural Resources 2.1 Without prejudice to the position of the Parties with respect to ownership of land and subterranean natural resources, including in Southern Sudan, this Agreement is not intended to address the ownership of those resources. The Parties agree to establish a process to resolve this issue. …………….. 3. Oil Resources B. National Petroleum Commission (NPC) 3.2 The Parties agree that an independent National Petroleum Commission (NPC) shall be established during the Pre-Interim Period and its decisions shall be by consensus. …………………………….. 3.4 The NPC shall have the following functions:3.4.1 Formulate public policies and guidelines in relation to the development and management of the petroleum sector consistent with paragraph 3.1.1.3.4.2 Monitor and assess the implementation of those policies to ensure that they work in the best interests of the people of Sudan.3.4.3 Develop strategies and programs for the petroleum sector.3.4.4 Negotiate and approve all oil contracts for the exploration and development of oil in the Sudan, and ensure they are consistent with the NPC’s principles, policies and guidelines.3.4.5 Develop its internal regulations and procedures. …………………. 4. Existing Oil Contracts4.1 The SPLM shall appoint a limited number of representatives to have access to all existing oil contracts. The representatives shall have the right to engage technical experts. All those who have access to the contracts will sign confidentiality agreements.4.2 Contracts shall not be subject to re-negotiation.4.3 If contracts are deemed to have fundamental social and environmental problems the Government of Sudan will implement necessary remedial measures.4.4 The Parties agree that “existing oil contracts” mean contracts signed before the date of signature of the Comprehensive Peace Agreement.” 2.1 Without prejudice to the position of the Parties with respect to ownership of land and subterranean natural resources, including in Southern Sudan, this Agreement is not intended to address the ownership of those resources. The Parties agree to establish a process to resolve this issue. …………….. B. National Petroleum Commission (NPC) 3.2 The Parties agree that an independent National Petroleum Commission (NPC) shall be established during the Pre-Interim Period and its decisions shall be by consensus. …………………………….. 3.4 The NPC shall have the following functions: 3.4.1 Formulate public policies and guidelines in relation to the development and management of the petroleum sector consistent with paragraph 3.1.1. 3.4.2 Monitor and assess the implementation of those policies to ensure that they work in the best interests of the people of Sudan. 3.4.3 Develop strategies and programs for the petroleum sector. 3.4.4 Negotiate and approve all oil contracts for the exploration and development of oil in the Sudan, and ensure they are consistent with the NPC’s principles, policies and guidelines. 3.4.5 Develop its internal regulations and procedures. …………………. 4.1 The SPLM shall appoint a limited number of representatives to have access to all existing oil contracts. The representatives shall have the right to engage technical experts. All those who have access to the contracts will sign confidentiality agreements. 4.2 Contracts shall not be subject to re-negotiation. 4.3 If contracts are deemed to have fundamental social and environmental problems the Government of Sudan will implement necessary remedial measures. 4.4 The Parties agree that “existing oil contracts” mean contracts signed before the date of signature of the Comprehensive Peace Agreement.”[7]The First and Second Respondents are the founders and directors of and shareholders in the Third Respondent, which is a company incorporated in Guernsey. The evidence before the court demonstrates sufficiently for present purposes that the de facto place of business of the Third Respondent has so far been at 18 Upper Brook Street in London W1. Correspondence addressed to the company at its registered office in Guernsey is said not to have come to the attention of the directors whereas correspondence addressed to the company at or delivered to 18 Upper Brook Street routinely comes to the attention of the directors thereof. Mr Edmonds is resident in the United Kingdom. In published documents the business address of Mr Groves is given as an address in Mozambique. Evidence filed on behalf of Mr Groves is to the effect that he is resident in Mozambique. However a company search conducted on 3 May 2005 in relation to the Third Respondent indicates that Mr Groves has a residential address in Ramsgate, Kent.[8]The Third Respondent, to which I shall refer as “White Nile,” was a shell company created by Mr Edmonds and Mr Groves to seek admission to the Alternative Investment Market, to which I shall refer as “the AIM.” It was incorporated and registered on 17 December 2004. It was admitted to trading on the AIM on 10 February 2005 apparently having raised over £9 million from investors prior to admission. The AIM admission document dated 4 February 2005 described the Company’s (i.e. White Nile’s) strategy as being to identify and acquire projects in the natural resources sector with particular emphasis on oil projects within Africa. The AIM admission document also stated that the Company was specifically negotiating with the Government of Southern Sudan (the “GOSS”) for certain oil concessions and that the directors were optimistic that these negotiations would come to fruition shortly.[9]Within less than a week after its admission to trading on the AIM White Nile requested a suspension of trading. It did so because on 16 February 2005 the Company announced that agreement had been concluded with the GOSS and its national oil company, Nile Petroleum Limited Company (“NilePet”) whereby the Company would acquire a 60% interest in Block Ba, which contains part of the Muglad Basin in Southern Sudan. Block Ba is a sub-part of Block B. Under the terms of agreements described in detail in a Circular dated 19 May 2005 White Nile is entitled to 60% of the gross revenues generated in return for bearing 100% of the costs of exploration, development and production, subject to being entitled to a minimum annual internal rate of return on capital of 40%. The Directors of White Nile recognised that the “Acquisition” was sufficiently large relative to the size of the Company that it was not appropriate to allow the Company’s shares to continue trading until full information on the Acquisition had been published. Thus it was that on 16 February 2005 the Company requested a suspension of trading pending such publication.[10]On 19 May 2005 White Nile issued a further admission document or Circular pursuant to the AIM Rules. This is a substantial document dealing with the “proposed acquisition of Sudanese Petroleum Concession.” It appears from the Circular that, on 12 August 2004, a Concession Agreement in respect of the exploration and development of Block Ba was agreed between the GOSS and NilePet. The Circular describes NilePet as the national oil company of the GOSS. A separate regulatory announcement made by White Nile on 19 May 2005 said that NilePet was incorporated in Yei, Southern Sudan on 22 July 2004 and is wholly owned by the GOSS. Some uncertainty over the precise status of NilePet is raised by a report dated 25 July 2005 produced by the highly respected International Crisis Group. Furthermore the AIM Circular contains at Part 4 a Legal Opinion dated 16 May 2005 prepared by Mr Maurice Mendelson QC in which he points out that as at that date the Government of Southern Sudan was yet to be constituted. What is said by the Respondents in this regard is that the agreement of 12 August 2004 was entered into under the name of the Civil Administration of New Sudan.[11]At some stage the First and Second Respondents were active in Southern Sudan in initiating “contacts with leading figures in the South with a view to proposing a novel means of funding oil exploration and development projects in their part of the country.” According to the Circular, “the proposed scheme was encapsulated in a draft joint venture agreement and White Nile was established with the intention of implementing the proposed concept if the GOSS decided that it wished to proceed with [the] proposal.” According to the Respondents, Mr Edmonds and Mr Groves only proposed the “White Nile Exploration model” to Southern Sudanese officials in November 2004 although there had been an exploratory visit in September 2004. However other material before the court in the shape of a newspaper report quotes a spokesman for The Sudan People’s Liberation Movement ( the “SPLM”) as saying that the Southern Sudanese regime had “signed the deal with White Nile in August last year [i.e. 2004] for a concession under the SPLM’s military and administrative control.” If that is in substance correct, it suggests involvement of Mr Edmonds and Mr Groves somewhat earlier than is accepted on their behalf. The report cannot be literally correct since White Nile was not incorporated in August 2004. One of the key issues for the determination of which disclosure is sought by this application concerns the date of commencement of the activities of Mr Edmonds and Mr Groves in Southern Sudan with respect to Block Ba. A second key issue is the date of their acquisition of knowledge and the extent of their knowledge of the rights asserted by Total by Block B. It is accepted by the Respondents that when negotiating with the authorities in Southern Sudan in November 2004 they were aware that Total had in the past been involved in some way in Block B and it is asserted on their behalf that they made relevant enquiry of those with whom they were negotiating as to whether Total still enjoyed any rights in relation to Block B. As I have already indicated, White Nile was incorporated on 17 December 2004 for the sole purpose of giving effect to the proposed scheme of the First and Second Respondents.[12]Subsequently White Nile has entered into a series of agreements with NilePet in respect of Block Ba, culminating in an Exploration and Production Licensing Agreement of 25 April 2005 to which I shall refer hereafter as “the White Nile EPLA.” Some details of the White Nile EPLA are set out in the Circular. Pursuant thereto White Nile has apparently been granted exploration rights in respect of Block Ba for a period of ten years with the possibility of extensions thereafter. The end result of the acquisition proposed in the White Nile Circular is that White Nile will become a company controlled, at shareholder level, by the GOSS. It appears that the proposed acquisition has now been effected. White Nile has raised £7 million through the issue of seven million new shares to be utilised for exploration and for general working capital purposes. Terra Seis Geophysical Limited has been appointed to conduct an extensive seismic evaluation programme of White Nile’s Block Ba area which is approximately sixty-five thousand square kilometres in extent.[13]Total says that it is demonstrated that: - a) At all material times, Total and its co-contractors have had exclusive rights to the exploration and development of Block B, which comprises Block Ba; b) Knowing of Total’s involvement with respect to Block B, the First and Second Respondents entered into negotiations with officials in Southern Sudan with respect to Block Ba in a way that appears wholly inconsistent with Total’s rights and economic interests; c) Knowing of the conclusion of the 1980 EPSA and the 2004 Revised EPSA, the Respondents entered into the White Nile EPLA and related agreements, and are currently taking steps to explore and develop Block Ba in a way that appears wholly inconsistent with Total’s rights and economic interests.[14]Total also asserts its belief that it has potential claims against Mr Edmonds, Mr Groves and White Nile on the grounds that: i) Before White Nile was incorporated, Mr Edmonds and Mr Groves, having knowledge of Total’s interests and rights in Block Ba pursuant to the 1980 EPSA, deliberately and unlawfully interfered with Total’s economic interests and rights, including by encouraging and/or persuading the Southern Sudanese regime and/or NilePet to enter into agreements the purpose of which was ultimately to purport to grant White Nile rights to conduct petroleum operations in Block Ba; ii) Once incorporated, White Nile and its directors, having knowledge of Total’s interest and rights in Block Ba pursuant to the 1980 EPSA, and subsequently the Revised EPSA, deliberately and unlawfully interfered with Total’s economic interest and rights by continuing discussions with the Southern Sudanese regime and/or NilePet and persuading the Southern Sudanese regime and/or NilePet to enter into agreements, most notably the EPLA, which purported to grant White Nile rights in Block Ba; and iii) Pursuant to (i) and (ii) above, Total has been caused damage.[15]The AIM Rules for Companies provide that the London Stock Exchange may make the admission of an applicant subject to a special condition and that it may require an AIM company to provide it with such information as it considers appropriate, and furthermore that it may require the AIM Company to publish such information. The London Stock Exchange imposed two special conditions upon White Nile. One was that it should obtain Counsel’s opinion on the process for approval of oil concession and licence agreements in Sudan, hence the Opinion of Mr Mendelson QC to which I have already referred included with the Circular as Part 4. The second condition imposed was that White Nile should make available for public inspection all documents upon which it placed reliance in relation to the Acquisition of the 60% interest in Block Ba. Hence in Part 5 of the Circular at paragraph 12 it is recorded that: - “12. Documents available for inspection The documents listed below will be available for inspection by the public……… The documents available are as follows: a) A lock-in agreement between NPC [Nile Petroleum Company Limited] and the Company dated 17 February 2005. b) A letter from the GOSS and NPC [Nile Petroleum Company Limited] to the Directors and Numerica dated 25 March 2005. …………………………. d) The EPLA between NPC [Nile Petroleum Company Limited] and the Company dated 25 April 2005. e) A letter from the GOSS and the Civil Authority of the New Sudan to the Directors and Numerica dated 25 April 2005. ………………………………” The documents listed below will be available for inspection by the public……… The documents available are as follows: a) A lock-in agreement between NPC [Nile Petroleum Company Limited] and the Company dated 17 February 2005. b) A letter from the GOSS and NPC [Nile Petroleum Company Limited] to the Directors and Numerica dated 25 March 2005. …………………………. d) The EPLA between NPC [Nile Petroleum Company Limited] and the Company dated 25 April 2005. e) A letter from the GOSS and the Civil Authority of the New Sudan to the Directors and Numerica dated 25 April 2005. ………………………………”[16]As I understand it the procedure is that the decision which documents were required to be made available for inspection, pursuant to the special condition imposed, will have rested with White Nile’s nominated adviser, Numerica Capital Markets Limited. Mr Mendelson QC refers in his opinion to his having been provided with a copy of the Concession Agreement dated 12 August 2004 to which reference is of course made in the Circular itself. It is not for me to express a view on the extent to which there has been compliance with the special condition imposed by the London Stock Exchange. However I can see the force of an argument to the effect that the Concession Agreement is a document upon which White Nile placed reliance in relation to the Acquisition. The same might also be said of the following: - “3. A copy of the “draft joint venture agreement” referred to in the second paragraph on page 9 of the Circular ……………….. 5. The Transfer Agreement. 8. Documents containing or evidencing the confirmation provided by the Southern Sudanese regime on 14 February 2005, referred to in the third paragraph on page 9 of the Circular. 9. A copy of the agreement referred in White Nile’s announcements dated 16 February and 4 March 2005 (referred to in the latter as the “Joint Venture Agreement). 10. Correspondence between the Southern Sudanese regime and White Nile in which the Southern Sudanese regime provided the information to the directors of White Nile referred to in the second paragraph on page 14 of the Circular (i.e. that the Concession Agreement was valid and that “any contract allegedly entered into by Total with the Government in the North of Sudan on 21 December 2004 is ineffective”).” ………………..[17]Total contends that there are a number of issues relating to the dispute between itself and the Respondents which require clarification, and that provision by the Respondents of the documents requested by this application will facilitate that clarification. Those issues are: - “(i) When did the Directors of White Nile first make contact with the Southern Sudanese regime and/or NilePet in relation to negotiating the Block Ba concession? (Issue 1) (ii) With whom did the directors of White Nile have contact? (Issue 2) (iii) What were the precise scope and nature of the discussions of the directors of White Nile with the Southern Sudanese regime and/or NilePet relating to Block Ba? (Issue 3) (iv) What was the precise proposal which the directors of White Nile made to the Southern Sudanese regime and when was this made? (Issue 4) (v) What was the precise level of knowledge which the directors of White Nile had of Total’s rights to Block B at the time of their discussions with the Southern Sudanese regime and/or NilePet? From what point in time did White Nile and its directors have such knowledge? (Issue 5) (vi) What is the precise nature of the rights purportedly awarded to White Nile by the Southern Sudanese Regime and/or NilePet? (Issue 6).”[18]The documents disclosure of which is sought, together with the issues to which they are said to be relevant, are in total as follows: - “Documents Related Issues 1. The Concession Agreement Issue 1; Issue 6 2. The Lock-In Agreement Issue 6 3. A copy of the “draft joint venture agreement” Issue 1; Issue 3 referred to in the second paragraph on page 9 Issue 4; Issue 6 of the Circular 4. The 25 March 2005 letter Issue 6 5. The Transfer Agreement Issue 6 6. The EPLA Issue 6 7. The 25 April 2005 letter Issue 6 8. Documents containing or evidencing the confirmation provided by the Southern Issue 6 Sudanese regime on 14 February 2005, referred to in the third paragraph on page 9 of the Circular. 9. A copy of the agreement referred in White Nile’s announcements dated Issue 1; Issue 3 16 February and 4 March 2005 (referred Issue 4; Issue 6 to in the latter as the “Joint Venture Agreement”). 10. Correspondence between the Southern Sudanese regime and White Nile in which the Southern Sudanese regime provided the Issue 1; Issue 2 information to the directors of White Nile Issue 3; Issue 5 referred to in the second paragraph on page Issue 6 14 of the Circular (i.e. that the Concession Agreement was valid and that “any contract allegedly entered into by Total with the Government in the North of Sudan on 21 December 2004 is ineffective”). 11. All other agreements, correspondence or notes of meetings between White Nile All Issues 1-6 and/or the Southern Sudanese regime(whether under the title of the GOSS or the CANS) and/or NilePet and/or ECL and/or Terra Seis relating to White Nile’s purported rights to Block Ba and/or Total’s rights to Block Ba.”[19]Of the documents of which disclosure is sought, the documents sought under paragraphs 1 – 10 are all referred to in the AIM Circular, but as I understand it and as I have set out above only documents nos. 2, 4, 6 and 7 were made available for public inspection. This renders somewhat academic further discussion of a dispute which I cannot in any event resolve as to the opportunity for study of the documents which was afforded to a representative of Messrs Freshfields when he attended the offices of White Nile’s solicitors in order to inspect the documents made available for public inspection. It appears to be common ground that copying of the documents was not allowed and the suggestion is that on one of the two visits note-taking was also forbidden as this was said to be tantamount to copying.[20]CPR 31.16 provides, so far as material, as follows:
“31.16 (1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where – (a) the Respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the Respondent’s duty by way of standard disclosure, set out in CPR 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to: (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.”
Authoritative guidance as to the proper approach to this provision is to be found in the judgment of Rix LJ in Black and Ors v. Sumitomo Corporation and Ors [2002] 1 WLR 1562. Of particular importance in the present case is the need to guard against allowing the ease with which the jurisdictional threshold can be passed to mislead the court into thinking that it has thereby decided the question of discretion. This is a danger because in very many if not most cases it will be possible to make a case for achieving one or other of the three purposes set out in sub-paragraph (3)(d) and, secondly, each of the three possibilities is in itself inherently desirable – see per Rix LJ at paragraph 82 of his judgment, p.1586 of the report. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where – (a) the Respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the Respondent’s duty by way of standard disclosure, set out in CPR 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to: (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.”[21]The Respondents’ position is that the Applicant fails to satisfy the jurisdictional hurdles on five grounds: - a) The potential claim would not be justiciable in the English Court; b) The English courts would not be the appropriate forum; c) The Applicant has not put forward a case with reasonable prospect of success. It has no evidence of the requisite intention on the part of the Respondents. d) It would not be desirable for documents in categories 1 – 9 to be disclosed; they add nothing to the real issues, and will not assist in saving costs, resolving issues or otherwise disposing of the case; and e) The documents sought at category 11 extend beyond standard disclosure and the category is too wide. The principal thrust of the Respondents’ objection to the application is that the proposed claim has at its core issues which are not justiciable or at any rate not justiciable in this jurisdiction. This objection operates both at the jurisdiction stage and at the discretion stage of the inquiry. What is said is that the question of the legitimacy or otherwise of the grant of rights by either the Civil Administration of New Sudan or the GOSS is not a matter justiciable by this court. This is, submit the Respondents, plainly a case for the exercise of judicial restraint by the English court.[22]I have no doubt that the court has jurisdiction to make the order sought. In my judgment the Respondents’ objections fall principally to be considered under the rubric of discretion. It is recognised by Mr Bloch QC for the Respondents that it would be inappropriate (and I would add impossible) finally to determine on this application questions either of justiciability or as to the appropriateness of this court as a forum for the resolution of the underlying dispute between the Applicant and the Respondents. That however, submits Mr Bloch, militates strongly against an order for disclosure being made. If the Respondents have an arguable case that the potential claim is not justiciable here, disclosure should not be ordered, since by definition upon establishing that a claim is non-justiciable a Respondent thereto is absolved of any further duty to give disclosure. The question of justiciability should not therefore at this stage be “finessed” to use Mr Bloch’s term and disclosure should not be ordered since so to do would, pro tanto, foreclose the Respondents’ argument. As to forum non conveniens Mr Bloch rightly points out that an objection of that sort to the appropriateness of the English court accepting or continuing to exercise jurisdiction would ordinarily be resolved prior to a party to the proceedings coming under a duty to give disclosure of documents. It would therefore, submits Mr Bloch, be inappropriate as a matter of discretion to require the Respondents to make the disclosure sought prior to their having the opportunity to persuade the court that it is an inappropriate forum for the resolution of the dispute.[23]The requirements of CPR 31.16(3)(a) and (b) are in my view satisfied because, in the light of the decision in Black v. Sumitomo, the meaning borne by the word “likely” in those sub-rules is “may well.” With the arguable exception of that sought under paragraph 11 of the application the disclosure sought falls within a very tightly defined and narrow focus. The documents sought in paragraphs 1 – 10 of the application were all specifically referred to in the Circular and reliance was placed upon them by the Respondents in connection with the solicitation of investment by the public. There can be no sensible doubt that, if proceedings had started, the Respondents’ duty by way of standard disclosure would extend to all of the documents of which disclosure is now sought. I also consider that, looked at simply as a jurisdictional requirement, there can again be no sensible doubt that the injury to Total’s interests is clear, that it calls for examination of the documents sought so as to clarify the role played by the Respondents and that Total needs the disclosure sought as an essential step in deciding whether to litigate at all and/or as an essential tool to assist in the proper formulation and pleading of its case. The documentation sought can be expected to cast light upon the two key issues which I have already identified, viz, the date of commencement of the First and Second Respondents’ activities in Sudan with respect to Bock Ba and the date of acquisition of their knowledge as to Total’s rights in Block Ba and the extent of such knowledge. To use the language of Rix LJ at paragraph 81 of his judgment in Black v. Sumitomo, there can in my view be no real doubt that there is a real prospect in principle of an order for disclosure of the documents sought being fair to the parties if litigation is commenced or of assisting the parties to avoid litigation or of saving costs in any event. The real question therefore is whether the court’s discretion should be exercised in the manner sought.[24]I recorded at the outset of the discussion an undertaking by the Applicant to disclose to the Respondents, in the event that an order is made in the terms which it seeks, a copy of the 1980 EPSA. That deals with the suggestion that in making its application Total has been coy and ought not to be assisted in circumstances where it seems reluctant to reciprocate. I also understand it to be accepted on both sides that there may be a case for redaction of certain passages in certain documents on grounds of commercial sensitivity. I do not intend to foreclose any detailed argument in the future as to the appropriateness of any particular individual redaction but merely to record that redaction may be accepted as appropriate at this stage. There might also be considerations of what might broadly be called security which could likewise militate in favour of redaction. I do not regard as weighing heavily in the balance the consideration that the Applicant sought and obtained an adjournment of an earlier hearing at which this application might have been considered.[25]I do not consider that this application calls for a detailed discussion of the principles pursuant to which this court will exercise judicial restraint on what traditionally are called justiciability grounds. I entirely accept that there may be scope for argument as to how the principles should be formulated, and in that regard consideration needs to be given to the seminal speech of Lord Wilberforce in Buttes Gas and Oil Company v. Hammer [1982] AC 888 as well as to the judgments of Mance J, the Court of Appeal and the House of Lords in Kuwait Airways Corporation v. Iraqi Airways Corporation [1999] CLC 31 and [2002] 2 AC 883. I accept that judicial restraint may be appropriate under this broad head in a wide range of circumstances, which include both the absence of judicial or manageable standards such as can create a judicial no-man’s land and the currency of disputed and very sensitive issues brought to settlement after the use of force and diplomacy – c.f. Mance J at p.62F of his judgment in the Kuwait Airways case. I would also accept that pleas of non-justiciability when made are highly fact specific and call for a close examination of the circumstances in each case. I also note that there is no hard and fast rule as to the stage of proceedings at which an issue of non-justiciability must be determined. It is not a plea which goes to the jurisdiction of the court. Ordinarily as it seems to me it is likely that pleadings, now statements of case, will be required in order properly and sufficiently to crystallise the issues so that it may be examined whether any of them needs to be approached with appropriate restraint. Sometimes, I should have thought, disclosure of documents might be needed in order to demonstrate whether a particular issue is indeed, as asserted, of a non-justiciable nature. Sometimes, as Lord Wilberforce pointed out at p.922 of the report cited, the fact that if the action is allowed to proceed, discovery of certain classes of documents may have to be given may have implications for the prior question, whether the action should be allowed to proceed. I note however that this is not a case in which the Respondents suggest that any of the documents which they are now asked to disclose are confidential documents of a foreign sovereign of which they happen to be in possession, as was the case in Buttes. In the absence of some such consideration it seems to me that the suggestion that it is unfair to deprive the Respondents of the opportunity to rely upon non-justiciability as a complete bar to their being required to make any disclosure carries little weight. It is certainly counterbalanced by the consideration that, if effect were to be given to it, an applicant who has a good arguable case that the issues are justiciable will be deprived of the opportunity to examine relevant documents before deciding whether to proceed and, if so, formulating his case. In the present context moreover, the Respondents’ suggestion of unfairness seems to me particularly lacking in weight, bearing in mind that the documents of which disclosure is sought are, with only one category an exception, all documents to which they made reference in their AIM Circular and are all documents upon which they relied in that regard. A strong case could be made out for all of the documents referred to in paragraph 1 – 10 of the application being documents which ought to have been made available for public inspection, although I do not thereby suggest that in that regard the Respondents did anything other than make proper compliance with the requirements of their nominated advisers Numerica. I accept that the documents in paragraph 11 fall into a different category but the size of the class is limited by reference to the date of incorporation of White Nile and it is not suggested that the documents are affected by considerations of sovereign confidentiality such as obtained in Buttes. Overall, the Respondents’ reliance upon the possible non-justiciability of aspects of the Applicant’s potential claim against them as a reason why disclosure should not be ordered is not obviously attractive. It is difficult to see what sensitivities could be infringed or what diplomatic embarrassment could be caused by the Respondents being required to produce to Total in London documents which are not said to be confidential to a foreign sovereign and which, for the most part, either have been or arguably ought already to have been made available in London for public inspection. The Respondents’ reliance upon possible non-justiciability at this stage seems to me adventitious rather than related to any genuine concern as to the possible ill-effects on a wider stage which might flow simply from a requirement that these documents be disclosed in this manner.[26]As to the more general point I am not presently persuaded that any claim which the Applicant might pursue against the Respondents will necessarily or even likely prove to be non-justiciable in this court. It is not for present purposes disputed that the State of Sudan once granted to Total or to its predecessors rights which it was competent to grant. There may be issues as to whether those rights were subsequently lost or abandoned by Total but those issues seem likely to be justiciable. On the assumption that Total had not lost or abandoned its rights the claim which it may wish to advance against the Respondents is founded upon activity by them which may have had the effect of inducing the State of Sudan to break its contract with Total by granting rights inconsistent with those granted to Total. It is not immediately obvious to me that the Applicant’s claim will necessarily involve an examination of the constitutionality of anything done by what I will call broadly the authorities in Southern Sudan. All that is relevant is that it may be arguable that activities of the Respondents had the effect of inducing an authority whose actions are imputable to the State of Sudan or which purported to bind the State of Sudan to make an agreement on behalf of the State which was inconsistent with the existing agreement between the State and Total. If done with requisite knowledge of the existence of the existing agreement and intention to interfere with its performance such activity is actionable – see Clerk and Lindsell on Torts, 19th Ed. Paragraph 25 – 15 et seq. The test of intention is objective and this form of the tort does not require a “desire to injure.” On this basis I am not persuaded that it will be necessary to examine whether pursuant to the constitutional arrangements the authorities in Southern Sudan had the capacity to act as they did. In any event, the body from which the Third Respondent claims to derive rights is an authority which claims to be exercising governmental authority in a part of Sudan, it is not as I understand it purporting to exercise the authority of a sovereign state independent of the State of Sudan. No question therefore arises which involves an examination of the validity of rival concessions granted by rival governments. Nor, for what it is worth, do I detect in the constitutional settlement any intention on the part of either party to overturn existing concessions. The critical question I suspect is likely to revolve around consideration of whether the rights of Total subsisted throughout the conflict in Sudan rather than any consideration of the constitutionality of anything done by the authorities in Southern Sudan in the name of the State of Sudan. I also note that the Wealth Sharing Agreement, as one would expect, is based in material part upon a distinction between contractual rights over and title to land. I think it unlikely that the court will be called upon to determine any question of title to land.[27]I deal next with the Respondents’ suggestion that they should not be required to make disclosure until after resolution of any challenge to the appropriateness of this jurisdiction which they might make on forum non conveniens grounds. Obviously it is premature at this stage to determine what might be the outcome of any such application. The question which is the more appropriate forum for the resolution of the dispute will be intimately bound up with the manner in which the claim is formulated. Mr Edmonds can be served with English proceedings as of right and it seems possible that the same may be true of both Mr Groves and White Nile Limited. However that might be, they would each seem likely to be both necessary and proper parties to any claim brought by Total against Mr Edmonds. Before giving permission for service of the claim form out of the jurisdiction upon Mr Groves and White Nile Limited, should that prove necessary, the court will have to consider whether England and Wales is the proper place in which to bring the claim and Mr Edmonds likewise will have the opportunity to apply to have any proceedings brought against him stayed on the grounds that the Sudan is a more appropriate jurisdiction in which he should be sued. I do not prejudge the outcome of any such application and I certainly do not intend to embark upon any examination of the relative efficacy of the legal infrastructure in Sudan and this jurisdiction but I note that the following was said in the AIM Circular signed by Mr Edmonds as Chairman of White Nile Limited: - “Sudan is emerging from a long period of civil war, and economic sanctions imposed by the United States currently remain in place. There can be no guarantee that the process of law, including the enforceability of contracts with the GOSS and NPC, and the granting of legal title in Southern Sudan will operate as it does in the United States or the European Union. The GOSS is a fledgling government that has been formed by people who have been fighting a long civil war, and they do not have the degree of legal or commercial infrastructure or sophistication of governments that has been established for longer periods.” Given the nature of the documents of which disclosure is here sought and given the singular feature which attaches to most of them to which I have already referred above, i.e. that they already have or arguably ought to have been made available for public inspection, the Respondents would in my judgment if they were successfully to resist disclosure at this stage on grounds of a potential forum non conveniens challenge need to demonstrate that such an application enjoys a really very strong prospect of success. They do not in my judgment come close to surmounting that hurdle.[28]The reality in my judgment is that the application for disclosure is really unanswerable so far as it relates to documents to which reference was made in the AIM Circular. My only real doubt has been whether I should include within the scope of the order paragraph 11. I am however satisfied that the discretion of the court should be exercised in this manner. The reasons which militate in favour of disclosure of the documents referred to in paragraphs 1 – 10 militate equally strongly in favour of disclosure of those referred to in paragraph 11. Whereas it is in my judgment impossible sensibly to resist disclosure in terms of paragraph 1 – 10, the same cannot be said of paragraph 11. However the arguments prayed in aid by the Respondents are in my judgment of insufficient weight to persuade the court to allow a less than complete picture to be revealed. I propose therefore to grant the application in its entirety. In case it is necessary the order of the court should record the Applicant’s undertaking not to use the documents disclosed to it pursuant thereto for any purpose other than in connection with its proposed proceedings against the Respondents in this jurisdiction. The wording of the order should ensure that the position is assimilated, mutatis mutandis, to that achieved by CPR 31.22 in relation to disclosure given in existing proceedings initiated by a Claim Form seeking substantive relief other than simply disclosure of documents.

Cited in 2 later judgments