Getting hold of the documents: Legal principles for disclosure in the anti-trust context

1. Getting hold of the documents: Legal principles for disclosure in the anti-trust context Kassie Smith QC 22 May 2013

2. Disclosure in UK competition cases • Venue? • High Court • Competition Appeal Tribunal (CAT) • Nature of case? • Appeal of infringement decision • Follow on damages action

3. High Court rules • CPR Part 31.5 • disclosure limited to standard disclosure • post-Jackson new procedure for all multi-track cases • menu of disclosure options rather than presumption of standard disclosure • these options include no disclosure and disclosure by issue • 14 days before first CMC parties need to file and serve detailed disclosure reports • 7 days before parties should meet, discuss and seek to agree detailed proposal for disclosure • New rules do not apply to case with first CMC before 16 April

4. CAT rules • Rule 19, CAT Rules 2003 “(1) The Tribunal may at any time, on the request of a party or of its own initiative, at a case management conference, pre-hearing review or otherwise, give such directions as are provided for in paragraph (2) below or such other directions as it thinks fit to secure the just, expeditious and economical conduct of the proceedings. (2) The Tribunal may give directions – … (d) requiring persons to attend and give evidence or to produce documents; … (k) for the disclosure between, or the production by, the parties of documents or classes of documents … (3) The Tribunal may, in particular, of its own initiative – … (c) ask the parties or third parties for information or particulars; (d) ask for documents or any papers relating to the case to be produced; …”. • Also see Rule 22.

5. CAT rules Tesco v OFT [2012] CAT 6, paras 13-14 • no automatic right to disclosure • disclosure sought must be necessary, relevant and proportionate for the fair disposal of the issues of substance in the appeal • considered by the CAT in the light of the circumstances of each individual case and the overriding objective in rule 19 of the Rules • a public authority defending a decision on appeal is not generally entitled to depart from the reasoning or evidence relied on in its decision • presumption against allowing the OFT to submit new evidence that could properly have been made available during the administrative procedure and dealt with in the decision • presumption may be rebutted where a respondent wishes to adduce new evidence to rebut a case made on appeal

6. Follow on actions in the High Court National Grid v ABB Ltd [2012] EWHC 869 • Standard disclosure – • a party is required to disclose (a) the documents on which he relies; and (b) the documents which (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; • required to disclose all documents “which are or have been in [party’s] control” • as a result of exercising right of access to the Commission’s file – ABB and Siemens had obtained copies of documents Commission had obtained from Alstom and Areva and copies of their responses to the Commission’s information requests

7. Follow on actions in the High Court • Disclosure may include leniency materials • No legitimate expectation by leniency applicants that statements would be protected from disclosure • Balance to be struck in each particular case • Deterrence effect • Proportionality: • whether the information is available from other sources • relevance of leniency materials to issues in the case, i.e. whether such potential relevance that specific disclosure ought to be ordered • Appropriate for the court to inspect documents and consider them individually before reaching a decision • Inspection may be limited to those within a confidentiality ring

8. Follow on actions in the High Court • Other sources of information • Request for Further Information under CPR Part 18 • Application to Commission under Article 15(1), Regulation 1/2003 • French blocking statute • Judgment of 11 April 2013 at [2013] EWHC 822

9. Appeals in the CAT Tesco v OFT [2012] CAT 6, [2012] CAT 12 • OFT’s powers on investigation under CA98 • s26 requests for documents • ss27 and 28 dawn raids with or without a warrant • Administrative procedure including written and oral submissions on SO • Other parties’ access to file • Implications for other parties on appeal by one of the cartelists

10. Appeals in the CAT • Tesco’s use of other parties’ documents in appeal • Third party confidentiality regime • Application by Tesco for redacted information • CAT’s approach at [2012] CAT 12 • Disclosure of information to competitor but into confidentiality ring

11. Appeals in the CAT • Application by OFT for disclosure • All documents responsive to s.26 request • Documents relating to contentions made in Notice of Appeal and witness evidence • Documents relating to contacts with potential witnesses • Application pursued for third category only • Letter from Tesco to OFT in July 2011 (just before Decision was notified to Tesco): ““Since [Tesco’s] exchange of correspondence with the OFT earlier [in 2011], we have spoken to a number of the individuals involved in the Cheese 2002/3 allegations. These individuals either expressed their unwillingness to be drawn into this process at this late stage or, somewhat unsurprisingly, have poor recollection of the facts and events at issue (which now happened over eight years ago). All of the individuals who were prepared to speak to us corroborated Tesco’s case. Of these there were two individuals who had a sufficiently reliable and informative recollection of the events in relation to the cheese allegations at issue and who were willing to give us witness statements …”

12. Appeals in the CAT • CAT declined to order disclosure of the potential witness materials – neither necessary or proportionate to issues in the appeal • First: use of those materials for cross examination likely to be “unfair and unhelpful”. • Second: disproportionate at this late stage - “too late to start having to assess the relevance and probative value of new evidence” • Third: OFT should not be entitled to disclosure in respect of material going to the credit of Tesco’s witnesses • Fourth: not necessary for the OFT to seek to supplement its case by reference to the material sought

13. Appeals in the CAT • Obiter: • The materials are subject to litigation privilege “the administrative procedure under the Act was sufficiently adversarial by the time Tesco contacted third party witnesses that the Potential Witness Material it gathered was subject to litigation privilege” • Waiver has not occurred and fairness does not require the material to be disclosed

14. Striking a balance Public interest in effective investigation into cartels –v- public interest in encouraging private actions Rights of parties subject to investigation –v- rights of those challenging infringement decisions and/or bringing private claims Different approach taken by High Court and by CAT

15. Kassie Smith QC • Monckton Chambers • ksmith@monckton.com