The case of Black v Sumitomo Corporation is often cited as the a leading case in pre-action disclosure under the Civil Procedure Rules Part 31.16. The appellants, Sumitomo, were represented, in part, by Orlando Geldhill.
In this appeals case in 2001 at the Supreme Court Mr Herbet Black, and his companies, stated that Sumitomo Corporation (a trading company) had cost him $126 million, through unlawful manipulation of the markets.
In the previous cases the judge, Michael Brindle QC had ordered pre-action disclosure by Sumitomo, on nine counts. However Sumitomo appealed this and the cases was heard by Lord Justice Ward, Lord Justice May, and Lord Justice Rix in Decemeber 2001.
The original judge ordered the following disclosure
- Statements showing copper warrants held by or on behalf of the Respondents (or any of them) throughout or at any time during the period 1 June 1996 to 1 October 1996.
- Daily trading statements showing copper futures positions, copper options, or any other copper positions, held, granted, purchased and/or sold by or on behalf of the Respondents (or any of them) throughout or at any time during the period from 1 June 1996 to 1 October 1996 on or through the LME and/or COMEX.
- Documents containing or evidencing any agreement between the Respondents or any of them and Goldman Sachs (or any part of Goldman Sachs) relating to the advice given or action taken by Goldman Sachs (or any part of Goldman Sachs) in relation to Sumitomo’s copper positions on the LME and/or COMEX during the period 1 June 1996 to 1 October 1996.
- Documents evidencing the China Deal (referred to in paragraph 19 of Mr Vigrass’ first statement) and made between GMMC, CNIEC and/or the Respondents (or any of them).
- Documents disclosing the China Deal (referred to in paragraph 4 above) to the regulatory authorities.
- Documents evidencing the physical delivery of Copper to CNIEC as referred to in paragraph 19 of Mr Vigrass’ first statement.
- Judgments or pleadings in civil or regulatory actions brought since June 1996 by or against the Respondents (or any of them) relating to or involving allegations in respect of the China Deal (referred to in paragraph 4 above) and/or to manipulation of the copper market between 1 June 1996 and 1 October 1996.
- Written communications from the Respondents (or any of them or any person on their behalf) to CFTC, SIB, SFA or LME and/or notes of meetings between the Respondents (or any of them or any person on their behalf) and CFTC, SIB, SFA or LME between 1 June 1996 and 1 October 1996 relating to the disclosure of Sumitomo’s intentions and activities in relation to the unwinding of its copper positions.
- Any transcripts and/or minutes of the meeting of 28 June 1996 referred to in paragraph 15 of Mr London’s statement.
The court ruled that there is no requirement that it be likely that proceedings by issued, but merely that the persons are likely to be involved if proceedings are issued.
And the court also ruled that that it was not a high standard of proof which the applicant had to meet to establish that the respondent was likely to be a party to subsequent proceedings, but in the case of Black v Sumitomo, the Court of Appeal considered that the claim raised by Mr Black was “speculative in the extreme” and that the original application was a fishing expedition.
The court also made clear that an order for pre-action disclosure should not be made where there are alternative methods of obtaining the relavant data/documents
As a result the decision over the lower court was overruled by the appeals court, unanimously.