National Grid Electricity Transmission Plc v ABB Ltd & Ors

The court may order a foreign party to give ordinary inter partes disclosure even where compliance may contravene a foreign blocking statute. The critical consideration is the real likelihood of criminal prosecution, assessed in the statutory and procedural context, including the purpose of the foreign law and the nature of the proceedings.

The EU Evidence Regulation is principally concerned with the official taking of evidence across borders. It does not require ordinary disclosure between parties to be obtained through a foreign court. Where that route would cause delay and uncertainty, and the prosecution risk is effectively theoretical, the court may order direct disclosure.

The claimant brought a substantial follow-on damages action concerning an alleged cartel in gas-insulated switchgear, following a European Commission infringement decision concerning Article 101 TFEU. It sought specific disclosure from French defendants. The defendants relied on article 1 bis of the French blocking statute, contending that disclosure could expose them to criminal prosecution.

After requests under the direct route of the EU Evidence Regulation were refused by the French Ministry of Justice, the claimant renewed its application for ordinary disclosure. The French defendants applied instead for requests to be made to the French courts under the court-to-court route. The central issues were whether the English court should order disclosure notwithstanding the French statute and whether the Regulation required or justified resort to the French courts.

1. The claimant’s application for disclosure against the French defendants was granted. Their applications for requests to the French courts under articles 1(1)(a) and 4 of the EU Evidence Regulation were refused.

2. The court accepted that it had a discretion to order disclosure by a foreign party notwithstanding a foreign-law prohibition. The previous authorities, including Mackinnon v Donaldson, Lufkin and Jenrette Securities, The Heidberg, Morris v Banque Arabe et Internationale d’Investissement SA and Secretary of State for Health v Servier Laboratories Ltd, provided relevant guidance, although the application had to be determined on its particular facts.

3. The court assumed, without deciding, that disclosure would infringe article 1 bis. The decisive issue was the likelihood of prosecution. The evidence showed only one successful prosecution, in Christopher X, involving exceptional circumstances, deception and the absence of a court order. The continuing practice of French companies complying with English and United States disclosure orders, together with the prosecutorial discretion under article 40-1 of the French Code of Criminal Procedure, made prosecution in this case virtually inconceivable.

4. The proceedings concerned serious infringements of EU competition law and were brought within the jurisdictional framework of EU law. Private damages actions furthered the effectiveness of Article 101 TFEU. Those considerations strongly reduced any realistic prospect that French authorities would prosecute a company for complying with English procedural rules.

5. The EU Evidence Regulation was not fundamentally concerned with ordinary documentary disclosure between parties. Masri v Consolidated Contractors Int (No 4), Lippens v Kortekaas and ProRail BV v Xpedys NV showed that the Regulation did not impose a mandatory route for all cross-border evidence. The special qualification in ProRail BV v Xpedys NV concerned the exercise of official or judicial authority in another Member State, not a party’s provision of documents in litigation.

6. A further request to the French courts risked rejection, delay and repeated procedural uncertainty. In the circumstances, there was no sound basis for taking that course instead of ordering the French defendants to provide disclosure in the same way as the other defendants.

The judgment describes earlier interlocutory decisions in the same proceedings, including a decision of the Chancellor on 12 June 2009 reported at [2009] EWHC 1326 (Ch), and further disclosure decisions reported at [2011] EWHC 1717 (Ch) and [2012] EWHC 869 (Ch). The present applications were determined at first instance in the High Court.