On 15 August 2018, the Court of Appeal (of England and Wales) refused DAF and Iveco (truck manufacturers) permission to appeal an order requiring DAF to disclose a substantial part of the European Commission's ("Commission") case file in the Trucks Cartel. It is the first decision in the English courts to apply the new procedural rules implementing the Damages Directive which govern access to the case file. Ashurst is advising Ryder.
| What you need to know - key takeaways |
- Prior to the implementation of the Damages Directive into English law, there were no specific rules governing disclosure of a competition regulator's case file to a claimant in a related follow-on damages claim.
- Since 9 March 2017, claimants seeking such disclosure must make an application to the Court and must satisfy certain conditions relating to plausibility, specificity and proportionality (central concepts in the Damages Directive).
- The Court was willing to adopt a purposive interpretation of the provisions of the Damages Directive. In particular, the Court did not view those provisions as inconsistent with the continued operation of the disclosure rules that exist in English litigation.
- The decision is to be viewed with care – the High Court and Court of Appeal were faced with balancing the need to apply the Damages Directive correctly with the need to maintain internal consistency between parallel follow-on damages claims arising from the same facts but subject to different procedural rules.
|
Claimants in competition follow-on damages cases frequently seek disclosure of the competition regulator's case file. The case file often contains important evidence, previously unknown to claimants, which can assist in pleading and proving their case. Until recently, there were no specific procedural rules governing access to the case file. It was open to claimants to seek to agree production of the file in correspondence or, where this was resisted by the defendant(s), to apply to the Court for the same. New English procedural rules implementing Directive 2014/104/EU (the "Damages Directive") now require an application to be made.
On 15 August 2018, the Court of Appeal refused DAF and Iveco (truck manufacturers) permission to appeal an order requiring DAF to disclose a substantial part of the Commission's case file in the Trucks Cartel. The disclosure order was made by Mr Justice Roth in the High Court on 31 July 2018 in favour of Ryder Limited. It is the first decision to apply the new rules in the English courts.
The order was made in four parallel follow-on damages claims in the High Court arising from the Commission's decision of 19 July 2016 relating to the Trucks Cartel (the "Decision"). The Decision fined five groups of truck manufacturers (MAN, Volvo/Renault, Daimler, Iveco and DAF) for participating in a pan-EEA cartel concerning medium and heavy trucks from 1997 to 2011. The Commission also fined Scania (another manufacturer) for the same conduct in a separate decision which is on appeal in the EU courts.
The Commission's findings have given rise to considerable follow-on litigation across Europe. In the UK, the first claimant to issue a claim was Royal Mail in December 2016. Ashurst is advising Ryder, a global leader in the truck leasing and rental sectors, in respect of its claim against MAN, Volvo/Renault, Daimler, Iveco and DAF. The claim was issued on 20 December 2017.
Since 9 March 2017, new procedural rules in Practice Direction 31C of the Civil Procedure Rules implementing provisions of the Damages Directive have introduced a requirement for claimants to make an application in order to obtain disclosure of the case file. Such an application must:
- contain a statement of the reasonably available facts and evidence sufficient to support the plausibility of the claim for damages;
- include a description of the evidence sought that is precise and narrow as possible on the basis of that statement; and
- be proportionate (with specific regard to the criteria in Article 5(3) of the Damages Directive).
Ryder's claim fell within Practice Direction 31C, whereas Royal Mail's claim (because it was issued prior to 9 March 2017) did not. Royal Mail sought and obtained disclosure of the Commission's case file (subject to specific exclusions) at a case management conference before Mrs Justice Rose in December 2017.
In June 2018, Ryder (alongside other claimants in parallel proceedings) applied to the High Court for disclosure from DAF of the same version of the Commission case file that had been disclosed to Royal Mail. Unlike Royal Mail, the applicants were obliged to satisfy the Court that the applications complied with Practice Direction 31C.
The applications were heavily contested by DAF and Iveco (which intervened to seek an adjournment). This was compounded by written submissions from the Commission suggesting that the applications may not be compliant with the Damages Directive.
Roth J ruled in favour of Ryder and its co-applicants. He held that the applications were compliant with the Damages Directive. Roth J had specific regard to the fact that the applicants sought no more than that which had already been disclosed to Royal Mail previously, albeit under a different procedural framework.
DAF unsuccessfully sought permission from the Court of Appeal to appeal Roth J's order.
With thanks to Max Strasberg of Ashurst for his contribution
