Black & Ors v Sumitomo Corporation & Ors [2001] EWCA Civ 1819 (03 December 2001)

Black & Ors v Sumitomo Corporation & Ors [2001] EWCA Civ 1819 (03 December 2001)

The Court of Appeal held that the judge below erred in granting wide-ranging pre-action disclosure. The threshold for 'likely' litigation and 'desirability' was not properly met, particularly given the speculative and unparticularised nature of Mr Black's allegations, the lack of a clear contractual or fiduciary relationship, and the oppressive burden on Sumitomo. The order for disclosure was set aside.

Citation
[2001] EWCA Civ 1819
Parties
Respondent (intended Claimant): Herbert Black; Respondent (intended Claimant): American Iron & Metal Company Inc; Respondent (intended Claimant): Lito Trade Inc; Appellant (intended Defendant): Sumitomo Corporation; Appellant (intended Defendant): Sumitomo Corporation (UK) PLC; Appellant (intended Defendant): Sumitomo Corporation of America
Jurisdiction
England and Wales
Judgment Date
03 December 2001
Procedural Posture
Appeal (civil) / Appeal From Order for Pre Action Disclosure (commercial Court, Queen's Bench Division)
Outcome
Appeal allowed; order for pre-action disclosure set aside.
Legal Topics
Pre Action Disclosure, Market Manipulation, Conspiracy, Articles 81/82 EC Treaty, Disclosure Under CPR 31.16
Civil Procedure Commercial Law Competition Law Pre Action Disclosure Market Manipulation Conspiracy Articles 81/82 EC Treaty Disclosure Under CPR 31.16

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Parties

Herbert Black

Respondent (intended Claimant)

American Iron & Metal Company Inc

Respondent (intended Claimant)

Lito Trade Inc

Respondent (intended Claimant)

Sumitomo Corporation

Appellant (intended Defendant)

Sumitomo Corporation (UK) PLC

Appellant (intended Defendant)

Sumitomo Corporation of America

Appellant (intended Defendant)

Procedural Posture

Appeal (civil) / Appeal From Order for Pre Action Disclosure (commercial Court, Queen's Bench Division)

Legal Issues

  1. 1 Whether pre-action disclosure should be ordered under CPR 31.16 in a complex commercial/competition context
  2. 2 Whether the threshold for 'likely' litigation and 'desirability' of disclosure is met
  3. 3 Whether the order below was an abuse of discretion or a proper exercise of it

Ratio Decidendi

The Court of Appeal held that the judge below erred in granting wide-ranging pre-action disclosure. The threshold for 'likely' litigation and 'desirability' was not properly met, particularly given the speculative and unparticularised nature of Mr Black's allegations, the lack of a clear contractual or fiduciary relationship, and the oppressive burden on Sumitomo. The order for disclosure was set aside.

Court Disposition

Appeal allowed; order for pre-action disclosure set aside.

Orders

  • The order for pre-action disclosure made by the Commercial Court is set aside.
  • No order for pre-action disclosure is to be made against Sumitomo.