Cadogan Petroleum Plc v Mark Tolley (December 2009)


The court ordered disclosure of parts of a settlement agreement necessary for the applicants to conduct their defences at trial, the disclosure did not extend to unlimited inspection of the agreement.


The first, second, fourth and fifth applicants (X) applied for specific disclosure and inspection of a settlement agreement by the respondents (Y). Y had sued the ninth and tenth defendants as members of a group of companies (G) that sold two gas processing plants to some of Y. It was alleged that the plants had been sold at an excessive price. G announced a settlement agreement and, as a result of that announcement, X sought disclosure of the entirety of the agreement. Although Y did not oppose the application G did.


Whilst G were no longer parties to the proceedings they did not agree to the disclosure and, in those circumstances, it would be wrong to contemplate making an order that Y provide disclosure. Confidence was not an absolute bar to disclosure but was a matter of discretion, Science Research Council v Nasse (1980) AC 1028 HL considered. Where disclosure was sought against a non-party the consideration of confidentiality on the non-party should be even higher when the court was faced with an application under CPR r.31.17. The court had to ensure that every party had an opportunity for a fair disposal of the proceedings. In the circumstances, X should have disclosure of such parts of the agreement as were necessary for them to be able to conduct their defences fairly at the trial. However, the right to disclosure did not necessarily extend to unlimited inspection. Accordingly, the document should go in the second part of the list for disclosure but should not be inspected until the parties agreed or the second stage was determined.

Application granted in part