Blue Power Group Sarl v Eni Norge SA
| Jurisdiction | England & Wales |
| Judge | Mr Justice Zacaroli |
| Judgment Date | 06 December 2019 |
| Neutral Citation | [2019] EWHC 3369 (Ch) |
| Date | 06 December 2019 |
| Docket Number | Case No: HC-2016-001872 |
| Court | Chancery Division |
[2019] EWHC 3369 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Zacaroli
Case No: HC-2016-001872
Andrew Twigger QC and Jonathan Allcock (instructed by Stephenson Harwood LLP) for the Claimants
Fionn Pilbrow QC, Philip Roberts QC and Richard Eschwege (instructed by Herbert Smith Freehills LLP) for the Defendants
Hearing dates: 26 and 27 November 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment addresses the following applications made at a directions hearing on 26 and 27 November 2019:
i) The claimants' application to amend the re-re-amended particulars of claim.
ii) The defendants' application to strike out certain aspects of the claim.
iii) The defendants' application for specific inspection of a USB stick in the possession of the claimants containing two documents over which the defendants claim privilege.
iv) The costs of a number of applications.
The claimants are associated companies who formerly conducted business of research, development and engineering of technologies in the energy sector. The defendants are an Italian oil multinational and two of its subsidiaries.
These proceedings arise out of a project relating to the potential transportation of compressed natural gas (“CNG”) from an oil and gas field in the Barents Sea known as “Goliat”. The first defendant is the operator and majority (65 per cent) licence-holder for Goliat; the minority (35 per cent) licence interest is held by the Norwegian oil company now called Equinor but formally known as “Statoil”.
In summary, the claimants claim against the defendants: (1) alleged breach of exclusivity obligations as a result of the defendants' engagement of third parties to work on the CNG project at Goliat; (2) alleged breaches of an obligation to use best endeavours to obtain the consent of Statoil to the continuation of the CNG export project; (3) alleged breaches of obligations of confidentiality in relation to various matters, including the claimants' “tariff model” tool; and (4) alleged infringement of database rights in respect of the claimants' tariff model tool. I will refer to the claims for breach of confidence and infringement of database rights in respect of the tariff model tool as the “Tariff Model Claims”.
The Amendment Application
The claimants applied to make a number of amendments to the claim, most of which have been consented to by the defendants. Those that remain in dispute concern the claimants' intention to rely upon a document which was recently sent anonymously to the defendants and, subsequently, to the claimants (the “Document”).
The Document purports to be a hard copy of a chain of six emails. The first two, chronologically, in the chain comprise an email from Mr Forzoni (of the defendants) dated 30 September 2013 and a reply from Oystein Michelsen (of Statoil) dated 2 October 2013 (the “Forzoni/Michelsen Exchange”). In the next email in the purported chain (dated 4 October 2013) Mr Forzoni forwarded the Forzoni/Michelsen Exchange to Mr Descalzi (of the defendants). Mr Descalzi responded, copying in others on 5 October 2013. I will refer to this as the Forzoni/Descalzi Exchange. The remaining two emails consist of the Forzoni/Descalzi Exchange being forwarded further to others, including one, Mr Salvo Carollo, who was retained as consultant by the claimants.
It is common ground that emails containing the substance of the Forzoni/Michelsen Exchange exist. The defendants have disclosed hard copies of such emails in this action. Moreover, the defendants have recently had access to Mr Forzoni's hard drives and have recovered what purport to be the electronic version of the Forzoni/Michelsen Exchange, in precisely the same terms as the hard copy versions previously disclosed by them. The version of the Forzoni/Michelsen Exchange that appears in the Document is, however, different in crucial respects to the versions (hard and soft) that the defendants have previously disclosed. The differences include (1) the misspelling of “Oystein” in the disclosed versions, corrected in the Document; (2) the mis-spelling of “sincerely” in the Document, whereas it is spelt correctly in the disclosed versions; and (3) an additional space being added between “P.O.” and “Box” in the Document.
The defendants have not disclosed any of the other four emails purportedly identified in the Document (including the Forzoni/Descalzi Exchange). This is not surprising, according to the defendants, who maintain that no such emails exist.
The claimants seek to rely upon the Document for two purposes. The first is in connection with the “best endeavours” claim. They rely in this respect on the contents of the Forzoni/Descalzi Exchange. The (unofficial) English translation of that Exchange contains the following. Mr Forzoni wrote: “Excellent news, at long last! As agreed before the meeting, Statoil is formalising its refusal to join the FEED! This will allow us to free ourselves from Blue Power and the noose agreement. All that remains is to officialise the proposal at the next licence committee meeting and obtain Statoil's refusal. It is almost done!”. Mr Descalzi responded by expressing delight that Statoil (in the Forzoni/Michelsen Exchange) rejected CNG as a solution for Goliat, and described Statoil as being “true to its word”. The claimants seek to plead, partially in reliance on the Document, that the defendants deliberately persuaded Statoil not to consent to the continuation of the CNG project at Goliat. They continue to plead, in the alternative, that the defendants failed to use their best endeavours to persuade Statoil in this respect.
The claimants' second purpose in relying on the Document is in relation to the Tariff Model Claims. They rely upon the following wording (again, in the unofficial English translation): “At this point, with the model obtained from their one, the patent applications and the research line started in ANG, we are completely autonomous, we do not need them again” (emphasis added).
The defendants object to these amendments on the ground that the Document is an obvious fake. They contend that it cannot be what it purports to be (namely a forwarding of the Forzoni/Michelsen Exchange), given the critical differences between the version of the Forzoni/Michelsen Exchange in the Document and the version in the disclosed documents. They contend that I can determine that point now, since no further evidence could realistically emerge prior to or at trial going to the authenticity of the Document.
In relation to the best endeavours claim, the defendants have agreed to the amendments which plead that they deliberately dissuaded Statoil from agreeing to the CNG project. The Document is pleaded as merely one of six matters from which that conclusion is to be inferred.
In relation to the Tariff Model Claims, on the other hand, the Document is now the only fact pleaded from which the inferences of breach of confidence and infringement of database rights is drawn. Even if the claimants are permitted to plead the Document, the defendants contend that the Tariff Model Claims should be struck out. I address that aspect further below.
The claimants accept that (in all but one case — that is paragraph 43I of the proposed re-re-re-amended particulars of claim) they do not need to plead the Document, or to rely on it as evidencing the forwarding of the Michelsen emails. The essential facts upon which they rely are the statements made in the Forzoni/Descalzi Exchange emails purported to be revealed by the Document.
Mr Pilbrow QC, for the defendants, submits that the claimants cannot overcome the problem that the Document is a fake by the simple expedient of pleading only the statements made in the relevant emails. In those circumstances, he says, the defendants would be entitled to call for the production of the emails. When (as would inevitably be the case) the claimants produced the Document, and nothing else, Mr Pilbrow submits that the defendants could then apply to strike out the pleading on the basis that since the Document is a fake the claim would be bound to fail.
The applicable test, it is common ground, is to be found in Elite Property Holdings v Barclays Bank plc [2019] EWCA Civ 204, at [41] to [42]:
41. For the amendments to be allowed the Appellants need to show that they have a real as opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472. A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1.
42. The court is entitled to reject a version of the facts which is implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon.”
Mr Pilbrow...
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