Coflexip SA & Anor v Stolt Comex Seaway MS Ltd & Ors

Specific disclosure must be directed to material that is relevant to an issue which remains live on the parties’ pleaded and evidenced cases. Where a claimant deliberately excludes a period or category of market-share evidence from its damages case, documents concerning that excluded material are irrelevant to the issues being litigated. A market share used in a competition-law assessment may also differ materially from the market share relevant to assessing lost infringement opportunities. Similar terminology does not make the underlying evidence relevant.

Coflexip had succeeded in patent infringement proceedings against Stolt and was pursuing an inquiry into financial relief. It advanced both contract-by-contract loss and a market-share approach based on the proportion of relevant pipe-laying contracts it might have obtained. Stolt sought specific disclosure under rule 31.12 of the Civil Procedure Rules 1998 concerning Coflexip’s submissions to the OFT in connection with a 1994 acquisition, together with market-share documents referred to in those submissions.

The application concerned whether those pre-1995 competition-related materials were relevant to the issues which Coflexip had chosen to pursue on the inquiry.

1. Application refused. The court declined to order disclosure of Coflexip’s OFT submissions and the related market-share documents.
2. Under rule 31.12 of the Civil Procedure Rules 1998, the question was whether the requested material was relevant to the issues between the parties. Relevance was assessed by reference to the case the parties had actually chosen to litigate, including the limits Coflexip had placed on its evidence.
3. Coflexip expressly relied on market-share evidence from 1995 onwards and did not rely on market share before 1995. It accepted that, if 1994 were the relevant date for a contract, it could not obtain damages on a market-share basis for that contract because it had chosen not to put the necessary material before the court. The 1994 OFT submissions were therefore irrelevant to the live issues.
4. The market share used for competition-law clearance was not necessarily the market share relevant to the damages inquiry. The inquiry concerned the market for types of pipe-laying contracts which Coflexip said it could have undertaken, whereas the OFT assessment addressed competition-law markets. The OFT material was consequently unlikely to assist materially in assessing either the appropriate market or the reliability of Coflexip’s evidence.
5. If Coflexip’s proposed market definition was inappropriate, that would place its market-share claim at risk. It did not make the different competition-related material relevant to the inquiry.

The judgment records that Coflexip had succeeded in the underlying patent infringement proceedings and that the Court of Appeal upheld the first-instance judgment by 31 July 2001. The present decision concerned a subsequent disclosure application in the inquiry into financial relief.