Abstract

21 December 2004 Colman, J Commercial Court [2004] EWHC 3005 [2004] ArbLR 5 Arbitration proceedings--Evidence--Disclosure--Non-parties--Arbitration concerning damages caused by grounding of vessel--Marine survey firm completing feasibility study concerning depth of approach channel--Whether to order preservation of feasibility study and related materials (yes)--Arbitration Act 1996, ss 43 and 44--CPR 25.1, 25.5(1), and 31.17--Supreme Court Act 1981, s 34(3) General disclosure from third parties not available for arbitration Assimina owned a vessel that grounded off the port of Karachi with the loss of 45% of the cargo leading to pollution indemnity claims amounting to US$6.5 billion. Assimina contended that the grounding was caused by unsafe conditions at the port and that Pakistan Shipping were, therefore, liable under a safe berth warranty. Assimina contended that information supplied by the Karachi Port Trust (`KPT') concerning the depth of the approach channel was misleading. It emerged that KPT had retained a British marine survey firm, HR Wallingford, to conduct a feasibility study for deepening the upper harbour and approach channel. Wallingford declined to provide copies of its study and related materials on the ground that the work undertaken for KPT was confidential. Assimina applied to the court for the production of a number