Third party disclosure

Mitsui & Co Ltd v Nexen Petroleum UK Ltd ChD TLR 18 May

The claimant suspected that the defendant’s parent corporation had breached an agreement not to solicit offers from third parties in respect of its interest in an oil field. Accordingly the claimant applied for disclosure of certain documents which would enable it to determine whether to sue the parent corporation for breach of contract. Norwich Pharmacol Co v Commissioner of Customs and Excise [1974] AC 133 set out three conditions to be satisfied for the court to exercise its power to order such release, the second of which was that the claimant had to establish that there was a need for an order to enable action to be brought against the ultimate wrongdoer. It is a remedy of last resort and the jurisdiction is to be exercised only if the third party was the sole practicable source of information. The necessity required to justify exercise of such intrusive jurisdiction is a necessity arising from the absence of any other practicable means of obtaining the essential information. It was not sufficient for the claimant to show that the information was necessary to enable its action to be brought. It had to establish that the information could not be obtained elsewhere. In the present case the information sought could be obtained by other means, in particular, by pre-action disclosure from the parent corporation, and accordingly the application for disclosure from the defendant was dismissed.