China National Petroleum Corporation & Ors v Fenwick Elliott & Ors (2002)
There was no clear evidence that the defendants had ever had in their possession any documents that were confidential to the claimants, nor was there any evidence that they or any of their witnesses knew of, or had participated in, any wrongdoing in relation to the circumstances in which any such documents had been obtained.
Cross-applications by the claimants and the defendants arising out of the claimants' contention that the second defendant ('Techint') and/or the first defendant ('FE'), Techint's solicitors, had in their possession secret and confidential documents belonging to the claimants. The claimants together formed a consortium of companies engaged in an oil development project in the Sudan. Techint, a company incorporated in the Bahamas but with its principal place of business in Buenos Aires, was one of the project contractors. Disputes emerged between Techint and the claimants as to the former's right to certain additional payments under the project contract. That dispute was duly referred to arbitration. Directions were given requiring the claimants to disclose, inter alia, documents in their possession that they had received from their project management consultants ('OGP') relating to the matters in dispute in the arbitration. FE was was not happy with the degree of disclosure subsequently provided by the claimants and, in a letter to the arbitrators referred, inter alia, to certain specific documents that it considered the claimants must have received from OGP. The claimants contended that any such documents in the possession of FE and/or Techint were confidential and secret. The claimants brought an application for delivery up of any such documents and disclosure on oath of how, when and whence they had been obtained. The claimants were granted permission to serve out on Techint. By their cross applications the defendants sought: (i) the striking out or dismissal of the claimants' application under CPR 3.4, CPR 24 or the inherent jurisdiction; and (ii) (in the case of Techint) an order setting aside the order granting permission to serve out.
(1) There was no evidence that the defendants had ever had any confidential or secret documents belonging to the claimants in their possession. Any such documents that may have been received from OGP were not secret nor confidential and, in any event, confidentiality would still have attached to them outside the arbitration. (2) Equally, there was no evidence that FE, in obtaining information about any such documents from potential witnesses, was either implicated in any original wrongdoing or breach of confidence. Legal professional privilege attached to any information that had been obtained. (3) In the circumstances, the claimants' application had no real prospect of success and so fell to be dismissed. (4) Given that the claimants did not have a strongly arguable case it followed that the order granting permission to serve out had to be set aside.