Infederation Ltd v Google Inc & Ors

In a stand-alone competition action parallel to a European Commission investigation, the national court retains discretion to allow proceedings to progress short of trial. The discretion must reflect the overriding objective and the duty to avoid decisions conflicting with present or contemplated Commission or EU-court decisions.

The court should assess the procedural stage and likely duration of the EU investigation, the age and evidential risks of the claim, the burden on the parties, and whether targeted case management can control cost and scope. Standard disclosure is not automatic. Targeted disclosure may be ordered for issues unlikely to be determined by the Commission, while disclosure on an issue affected by continuing EU uncertainty may properly be deferred.

Foundem brought a stand-alone claim for damages against Google, alleging abuse of dominance contrary to Article 102 TFEU and section 18 of the Competition Act 1998. The allegations concerned the ranking of Foundem’s search results, advertising Quality Scores, complaint procedures, Universal Search, and the Panda algorithm.

The European Commission was investigating related matters and had sought comments on proposed commitments concerning Google’s treatment of specialised search services. Google sought a stay pending clarification of the Commission’s position, while Foundem sought standard disclosure. The central issue was how far the English proceedings should progress before the Commission’s investigation was resolved.

1. The application for a general stay was refused. The court ordered close case management and targeted disclosure, but deferred disclosure concerning the Panda allegation.

2. National proceedings may continue to a point short of an actual decision or judgment. The court has a discretion as to the steps to be taken. That discretion must be exercised in accordance with the overriding objective and the need to avoid a decision contrary to a Commission or EU-court decision. It will normally be appropriate for defendants to plead a defence.

3. Relevant considerations include whether the claim is follow-on or stand-alone; the likelihood that the EU proceedings will affect a trial; their procedural stage and likely duration; the age of the allegations and the effect of delay on evidence; the burden of parallel proceedings; and whether effective case management can control the burden and costs.

4. The claim was stand-alone. An Article 9 commitments decision would not determine that an infringement had occurred and would not bind the national court. A future statement of objections could lead to a further stay, potentially causing substantial delay. The Commission was unlikely to issue a negative inapplicability decision on allegations (i)–(iii), whereas its position on the current Panda algorithm remained uncertain.

5. The court directed disclosure on allegations (i)–(iv), principally from the material already gathered for the Commission, subject to narrow specified categories and a confidentiality ring. No disclosure was ordered at that stage on allegation (v). The court also proposed that the action proceed initially on the assumption that Google was dominant, with dominance and quantum left for later consideration if necessary.

Not stated in the judgment.