National Grid Electricity Transmission Plc v ABB Ltd & Ors

Disclosure of leniency materials in follow-on competition damages proceedings is governed by a case-by-case balancing exercise. The court must weigh the claimant’s interest in obtaining compensation against the protection needed to preserve an effective leniency programme.

Pfleiderer applies to the Commission’s leniency programme as well as national programmes. Article 15 of Regulation 1/2003 does not exclude the jurisdiction of national courts to apply their own disclosure procedures. Proportionality requires attention to the availability of information from other sources and the particular relevance of the documents sought. Where relevance is disputed, the court should ordinarily inspect the documents individually.

The claimant brought a follow-on damages claim against companies alleged to have participated in the GIS cartel found by the European Commission to infringe Article 101 TFEU. It sought disclosure of the confidential version of the Commission’s decision and various leniency materials held by ABB and Siemens.

The claimant also sought further information under CPR Part 18 about individuals involved in the cartel, its operation in the United Kingdom and alleged price effects. The central issues were whether the principles in Pfleiderer applied to Commission leniency materials, whether the English court had jurisdiction to order disclosure, how the competing interests should be balanced, and whether the Part 18 requests were premature.

1. Leniency materials. The principles stated by the ECJ in Pfleiderer applied to the Commission’s leniency programme. The reasoning of the ECJ was expressed generally and drew no distinction between national and Commission programmes.
2. Jurisdiction. Article 15 of Regulation 1/2003 enabled a national court to request information from the Commission, but did not oust the court’s jurisdiction to apply its own procedural rules on disclosure. Compulsory referral to the Commission would create delay and impose an inappropriate burden on it.
3. Balancing exercise. The court had to weigh, case by case, the interest in disclosure against the protection of an effective leniency programme. Relevant considerations included any relative increase in the leniency applicant’s liability, the deterrent effect on future applicants, proportionality, the availability of information from other sources and the relevance of the particular documents. The court inspected the documents individually because the degree of relevance was disputed.
4. Orders for disclosure. The confidential version of the Commission’s decision was in a distinct category. Relevant redacted passages were ordered to be disclosed within the confidentiality ring because the decision contained findings likely to bind the English court against its addressees and was important to the damages claim. Only limited passages from other leniency materials were ordered. The remaining materials were protected because their relevance did not outweigh the interest in preserving the leniency programme.
5. Part 18 request. A request for information outside the pleadings should not ordinarily be used prematurely to compel fragmentary witness evidence before witness statements. The requests directed to the amount of overcharge and the operation of the United Kingdom cartel were dismissed as premature. Siemens was ordered to clarify the meaning of the reference to the “UK forum” in its disclosed document. The remaining application was dismissed.

The judgment records earlier case-management and disclosure decisions in the same proceedings, including [2009] EWHC 1326 (Ch) and [2011] EWHC 1717 (Ch). Those decisions were not appealed judgments determining the present applications.