Disclosure in the High Court is governed by CPR 31. The rules require parties in larger cases to complete disclosure questionnaires before the disclosure exercise is started, so that the other parties, and the court, are aware of what documents (including electronic documents) are thought to exist, and where they are located. The parties can then agree, or the court can order, disclosure that is more relevant to the specific case, if necessary. ‘Standard’ disclosure is still available as one of the options that the parties or the court can choose.
Standard disclosure generally takes place after pleadings have closed, namely, after the claim form, particulars of claim, defence and any replies have been served. It requires the parties to the litigation to search for and disclose all documents in their control on which they rely, and documents that adversely affect their own case, adversely affect another party’s case, or support another party’s case. Privileged documents (see question 11) need to be identified in the disclosure statement but cannot be inspected by the other parties. However, the fact that documents are confidential is not normally a bar to disclosure: concerns of commercial sensitivity are typically dealt with by way of a ‘confidentiality ring’, whereby only specified persons (eg, external experts, legal advisers, in-house lawyers) will be permitted access to the documents. One example of the use of a confidentiality ring is Nokia Corporation v AU Optronics Corporation  EWHC 731 (Ch) a damages claim brought by Nokia against certain companies involved in the manufacture or supply of liquid crystal displays. During the course of the English litigation, Nokia’s English legal team obtained material disclosed in US proceedings pursuant to a confidentiality ring. Nokia obtained an order in the English litigation for use of the US disclosure material in a manner reflecting the US confidentiality arrangements. This led to certain parts of Nokia’s particulars of claim (which had been amended in light of the material disclosed in the US proceedings) not being able to be shared with the in-house counsel of some of the defendants. The court held that Nokia bore the burden of seeking to adjust the earlier order to allow the in-house counsel of those defendants to view the material.
Specific disclosure can be sought requiring a party to disclose specific documents or categories of documents (CPR 31.12). Disclosure can also be sought from non-parties under CPR 31.17 if a document or class of documents is likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings, and disclosure is necessary to dispose of the claim fairly or to save costs.
In addition to disclosure in the course of litigation, claimants or potential claimants can ask for pre-action disclosure under CPR 31.16 from someone who is likely to be a party to litigation. CPR 31.16(3) states that:
- pre-action disclosure can only be ordered where the respondent is likely to be a party to subsequent proceedings;
- the applicant is also likely to be a party to those proceedings;
- if proceedings had started, the documents or classes of documents of which disclosure is sought would fall within standard disclosure; and
- disclosure before proceedings have started is desirable either to dispose fairly of anticipated proceedings, to assist the dispute to be resolved without proceedings, or to save costs.
Note that even in the case of successful applications for pre-action disclosure, it is normally the applicant who is required to pay the costs of the respondent.
Applications for pre-action disclosure that are overly broad will be refused, so potential claimants should consider carefully the scope of any requests they make. In Hutchison 3G UK Limited v Vodafone, O2, Orange and T-Mobile  EWHC 55 (Comm), the claimant’s pre-action disclosure request was refused because it was too broad. That request related to a potential claim under articles 101 and 102 of the TFEU and was brought in the commercial court. The defendants denied there had been any anticompetitive conduct and resisted the applications for pre-action disclosure. The court agreed with them that as a matter of both jurisdiction and discretion the material sought was not necessary for Hutchison 3G to plead its case, that the claim was speculative in terms of liability, that the scale of the disclosure requested was very large and unfocused and was likely to go further than that which would be required under standard disclosure, and that the costs and difficulty of obtaining the documents requested were prohibitive.
The status of leniency applications and settlement agreements with the Commission or CMA has also been the subject of dispute in the context of High Court proceedings in recent years.
For cases begun on or after 9 March 2017, paragraph 28 of Schedule 8A (CA 1998), states that a court or tribunal must not make a disclosure order in respect of a settlement submission that has not been withdrawn or a cartel leniency statement (whether or not it has been withdrawn). A cartel ‘leniency statement’ means information provided, orally or in writing, to a competition authority, which consists of information about a cartel and the person’s role in relation to the cartel; is provided voluntarily; and is provided specifically for the purpose of the authority’s cartel leniency programme excluding any pre-existing information. It includes part of or a quotation from a cartel leniency statement; all or part of a record of the statement; or copies of either. Pre-existing information (eg, pre-existing contemporaneous documents) means information that exists irrespective of an authority’s investigations. Upon the application of a claimant, a court or tribunal can determine whether information is a cartel leniency statement.
Paragraph 32 of Schedule 8A (CA 1998) states that settlement submissions (which have not been withdrawn) or cartel leniency statements (regardless of whether they have been withdrawn) are not admissible in evidence in competition proceedings. However, if a party to the proceedings obtains the statement or submission lawfully and otherwise than from a competition authority’s file then these restrictions do not apply.
Paragraph 33 of Schedule 8A (CA 1998) also introduces a restriction over the use of a competition authority’s investigation materials. These are defined as information prepared by a person (other than a competition authority) for the purpose of an investigation by the competition authority; information sent by a competition authority during an investigation to the subject of the investigation; or a settlement submission that has been withdrawn.
Prior to the commencement in March 2017 of the Regulations that implemented the Damages Directive the European Court of Justice (ECJ) Case C-360/09, Pfleiderer v Bundeskartellamt and the judgment of the High Court in National Grid Electricity Transmission plc v ABB Ltd  EWHC 869 (Ch) had gone some way to clarifying the position in relation to the disclosure of documents submitted to national competition authorities and the European Commission under their respective leniency regimes. These cases may still continue to be relevant in relation to cases that were begun prior to 9 March 2017.
The Pfleiderer judgment arose out of a decision of the German national competition authority (the Federal Cartel Office (FCO)), which found an infringement of article 101(1) of the TFEU by a cartel of European manufacturers of decor paper. Following the decision, Pfleiderer, a purchaser of decor paper, applied to the FCO seeking access to the material on its file on the cartel, including documents relating to leniency applications, with a view to bringing follow-on damages actions. The FCO rejected Pfleiderer’s request in part and Pfleiderer then brought an action before the Bonn court challenging the FCO’s decision, seeking access to the complete file. The Bonn court made a reference to the ECJ.
In its judgment, the ECJ stated that, in considering an application for access to documents relating to a leniency programme submitted by a person who is seeking to obtain damages from another person who has taken advantage of such a leniency programme, it is necessary to weigh the respective interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the applicant for leniency. That weighing exercise can be conducted by the national courts and tribunals only on a case-by-case basis, according to national law, and taking into account all the relevant factors in the case. As such, the ECJ held that EU law does not preclude a damages claimant from being granted access to documents relating to a leniency procedure but that it is for the courts and tribunals of the member states, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by EU law.
The Pfleiderer judgment was considered in the English High Court in National Grid Electricity Transmission plc v ABB Ltd  EWHC 869 (Ch). In the course of the litigation, National Grid applied for disclosure of certain documents that may have contained information supplied in the context of leniency applications. These documents broadly fell within three categories:
- the confidential version of the Commission’s decision;
- ABB’s (ie, the immunity applicant’s) reply to the Commission’s statement of objections; and
- replies to requests for information made by the Commission. National Grid did not apply for disclosure of the corporate statements themselves.
The judge (Roth J) invited, and received, an amicus curiae observation from the Commission in relation to disclosure of certain leniency documents submitted to it as part of its leniency regime. The observations stated, among other things, that ‘the Commission’s long-established practice is that the corporate statements specifically prepared for submission under the leniency programme are given protection both during and after its investigation’. Having considered these observations, Roth J held that Pfleiderer, which was a decision in relation to the leniency programme of the national competition authority in Germany, equally applied to the Commission’s leniency programme and, accordingly, to the disclosure application in issue. He also held that it was not exclusively the Commission’s jurisdiction to determine the disclosure of leniency materials submitted to it and that a national court could conduct the Pfleiderer balancing exercise, weighing the interest in disclosure as against the need to protect an effective leniency programme.
Roth J held that a number of factors were relevant in the balancing exercise. The first of these was whether such disclosure would increase the leniency applicants’ exposure to liability or would put these parties at a relative disadvantage compared with the parties that did not cooperate.
Roth J stated that he did not think this was a realistic prospect in the circumstances of the case. Second, he considered relevant the potential effect of a disclosure order in this case in deterring potential leniency applicants as regards other cartels that are yet to be uncovered. Third, Roth J considered whether the disclosure sought was proportionate, an argument that he considered in light of whether the information was available from other sources and the relevance of the leniency materials being sought. As regards the first of these, Roth J held in the circumstances of the case, there were no other means available (at least not without excessive difficulty) for National Grid to derive the information. The question of relevance needed to be determined on a document by document basis, an exercise, which Roth J subsequently undertook. Ultimately, Roth J ordered only very limited disclosure of the documents requested.
In National Grid Electricity Transmission plc v ABB Ltd  EWHC 869 (Ch), following an application for specific disclosure by National Grid, Roth J ordered disclosure of certain documents held by the French-domiciled defendants, despite their argument that providing such disclosure would put them at risk of criminal prosecution in France by virtue of the ‘French blocking statute’ ( EWHC 822 (Ch)). Roth J proceeded on the basis that the production of the documents would infringe the French blocking statute but held that the existence of the blocking statute was not a sufficient reason for not ordering disclosure in this case as the likelihood of any prosecution being brought was very low. This decision, together with a decision arising out of the Servier litigation, was upheld on appeal (Secretary of State for Health v Servier Laboratories Limited; National Grid Electricity Transmission plc v ABB Limited  EWCA Civ 1234).
In ABF v Recticel  EWHC 3610 (Ch), Rose J also refused to order the disclosure of leniency documents. The case was a follow-on damages claim arising from the Commission’s decision that found that the defendant, among others, had been involved in a price fixing cartel relating to the sale of flexible polyurethane foam. The claimants requested the disclosure of drafts of the speaking notes for Recticel’s lawyers that they used in making oral leniency statements to the European Commission and certain questions that the Commission had asked. As the claim had been commenced before the Regulations that implemented the Damages Directive came into force, Rose J had to consider whether the public interest in protecting leniency documents was outweighed by the interest in facilitating this damages action (per Pfleiderer). Rose J exercised her discretion not to order the disclosure of either the drafts of the speaking note nor the Commission’s questions. The court held that the leniency regime in 2006 was carefully set up to prevent these statements falling into the hands of third parties.
In the context of disclosure, disputes may also arise relating to the disclosure of confidential infringement decisions. In Emerald Supplies Ltd v British Airways plc  EWHC 3513, the claimants claimed damage in respect of loss that they alleged was caused by the conduct of British Airways (BA) in a cartel in the market for air freight services. The Commission issued the confidential decision in Air Freight on 9 November 2010 but had not, by the time of the hearing, issued a non-confidential version of that decision. The High Court ordered that the unredacted confidential Commission decision, minus leniency material and material for which legal professional privilege was claimed, be disclosed to all parties but subject to a confidentiality ring. In addition, the court ordered that the claimants could not bring proceedings against anybody other than those already listed (in the Part 20 proceedings) without permission of the court. The court held that these arrangements were consistent with the Court of First Instance’s judgment in Pergan Hilfsstoffe für industrielle Prozesse GmbH v Commission  T474/04 in protecting trade secrets and confidentiality. Separately, in May 2015, the Commission published a non-confidential version of the decision.
The Court of Appeal overturned this judgment on appeal. It found that the judge was not entitled as a matter of law to relax or amend the Pergan safeguards (to protect the presumption of innocence) recognised by the Commission in its publication of the provisional non-confidential decision. There was no principled basis for an approach that permits a judge in national court proceedings to allow a claimant in a damages action to achieve an advantage (access to an unredacted, non-Pergan protected, version of the decision) that such a party could not obtain at the Community level. The General Court in Pergan was well aware that disclosure in that case would create a risk that Pergan would be subject to damages actions in national courts and that one purpose of Pergan’s application was to ensure that particular information did not reach potential claimants. Delay by the Commission in the production of the non-confidential decision did not relieve the High Court of its mutual cooperation obligations under article 4(3) of the TFEU and in this case there was a real risk that the judge’s order would conflict with any future decisions by the Commission on outstanding redaction applications. Permission to appeal the decision to the Supreme Court was denied.
In a further related development, in December 2015, the General Court annulled the Commission’s decision in Air Cargo as against a number of the addressees. The Commission announced that it will not appeal the judgment.
Follow-on damages claims brought in the CAT require claimants to annex to the claim form, a copy of any infringement decision and copies of any document referred to in the claim form (CAT Rule 30(5)(a)-(b). In practice, as noted above, claimants in follow-on damages actions are likely to rely to a large extent on documents in the hands of the defendant, and on the CAT to order disclosure of them. The CAT may at any point give directions as to how disclosure is to be given and, in particular, what searches are to be undertaken, in what format documents are to be disclosed and whether disclosure is to take place in stages (CAT Rule 60(3); see also CAT Rule 89 in relation to disclosure in collective proceedings under section 47B of CA 1998). A party’s duty to disclose documents is limited to documents that are or have been in its control. In practice, as with High Court proceedings, the CAT orders disclosure after close of pleadings. As is the case in High Court litigation, privileged documents are protected from disclosure; and confidentiality rings are also used to ensure commercially sensitive information is ring-fenced as appropriate.
In addition to this ‘standard disclosure’ in the CAT, it is also possible for parties to request specific disclosure, in particular because the requirement to disclose documents with pleadings only applies to documents supporting the case. In this respect, the CAT has adopted the general rules of disclosure set out in the CPR (see Aqua Vitae (UK) Limited v DGWS  CAT 4). In order to obtain specific disclosure, the applicant must specifically identify the documents sought. The application will be rejected if the documents are not relevant and necessary for the fair and just disposal of the proceedings, although the CAT will look at the case as a whole (Albion Water Limited v Water Services Regulation Authority  CAT 3).
The CAT Rules introduced more detailed guidelines for disclosure in proceedings in the CAT. The CAT may at any point give directions as to how disclosure is to be given including what searches are to be undertaken, whether lists of documents are required, the format in which documents are to be disclosed and the requirements in relation to documents that no longer exist (CAT Rule 60(3)). The CAT will decide whether and when a disclosure report and electronic documents questionnaire should be filed (CAT Rule 60(2)). Under CAT Rule 60(1)(b), a disclosure report (which will be verified by a statement of truth) will describe:
- briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;
- where and with whom those documents are or may be located;
- in the case of electronic documents, how those documents are stored;
- an estimate of the costs of giving disclosure; and
- which directions are to be sought regarding disclosure.
Under CAT Rule 60(1)(c), an electronic documents questionnaire is in the form of the questionnaire in the schedule to Practice Direction 31B of the CPR.
The CAT Rules propose that the claimant or claimants submit a claim form which states (among other things) whether the claim is in respect of an infringement decision (and if so whether that decision has become final), a concise statement of the relevant facts and of any contentions of law that are relied on and the relief sought (CAT Rule 30(3)). The CAT Rules require a claimant to annex a copy of the infringement decision (in the event that they have a copy of it): ‘copies of any documents referred to in the claim form’ and ‘such other documents or annexes as may be specified by practice direction’ (CAT Rule 30(5)).
Under the CAT Rules, in addition to disclosure in the course of litigation, claimants or potential claimants can make an application (supported by evidence) to the CAT for disclosure before proceedings have started (CAT Rule 62). In order for the CAT to make an order, similar requirements to those set out in CPR Part 31 for the High Court apply. CAT Rule 62(3) states that the CAT may make an order only where:
- the respondent is likely to be a party to subsequent proceedings;
- the applicant is also likely to be a party to those proceedings;
- the CAT would, if proceedings had started, have ordered disclosure; and
- disclosure before proceedings have started is desirable either in order to dispose fairly of the anticipated proceedings, to assist the dispute to be resolved without proceedings, or to save costs.
The CAT Rules provide that the CAT can order disclosure from non-parties on similar grounds to the High Court. The CAT may make such an order only if the documents sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings, and disclosure is necessary in order to dispose fairly of the claim or to save costs (CAT Rule 63). Under CAT Rule 53(2)(l), the CAT may give directions ‘for the disclosure and the production of by a party or third party of documents or classes of documents’.
In addition, the CAT Rules provide that a person may apply, without notice, for an order permitting the withholding of disclosure of a document on the ground that disclosure would damage the public interest (CAT Rule 64). Such an application must be supported by evidence and, for the purpose of deciding an application, the CAT may require the person seeking to withhold the document to produce it to the CAT, and invite any person, whether or not a party, to make representations (CAT Rule 64(6)).
The CAT Rules also outline that a party to whom any document has been provided by the CAT, by any other party as part of the proceedings, or in accordance with an order under CAT Rule 63 (an order for disclosure against a person who is not party to the proceedings) may use that document only for the purposes of those proceedings (CAT Rule 102). This rule will apply except where:
- a document has been read to or by the CAT, or referred to, at a hearing that has been held in public;
- the CAT gives permission; or
- the party who produced or disclosed the document and the person to whom the document belongs agree.
This exception will not apply to a document or part of a document provided within a confidentiality ring, if the CAT gives permission for further use of that document. The CAT may, either of its own initiative or on the application of a party, make an order restricting or prohibiting the use of any document provided in the course of proceedings, even where the document has been read to or by the CAT, or referred to, at a hearing that has been held in public (CAT Rule 102(5)). An application for such an order may be made by:
- by a party;
- by any person to whom the document belongs; or
- by any person who claims that the document contains confidential information relating to them.
See also the rules on the disclosure or use in evidence of leniency statements and settlement submissions set out above.
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