Infederation Ltd v Google, Inc & Ors

Permission under CPR rule 31.22(1)(b) to use disclosed documents for a collateral purpose requires special circumstances constituting a cogent reason. Where domestic competition proceedings substantially overlap with an investigation by the European Commission, it is generally highly desirable that both bodies can evaluate the same evidence and materially the same arguments. That public interest may justify release from the collateral purpose rule. Sending the Commission an analysis of documents already in its possession is a lesser interference with privacy and confidentiality than supplying further disclosed documents. Differences in access between complainants, and the likely cost of a response by the disclosing party, will not ordinarily outweigh the public interest in consistent decision-making.

Foundem brought proceedings alleging that Google had abused a dominant position contrary to article 102 of the Treaty on the Functioning of the European Union and the Chapter II Prohibition in section 18 of the Competition Act 1998. The European Commission was conducting overlapping proceedings concerning Google.

Google had disclosed documents in the domestic proceedings, most of which had already been supplied to the Commission. Foundem sought permission under CPR rule 31.22(1)(b) to send the Commission an analysis and commentary on those documents, subject to redactions. Google opposed the application on grounds of unequal access between complainants and the cost of preparing a response.

The application was granted. The court applied CPR rule 31.22, which constitutes a complete code governing collateral use of disclosed documents. Permission under rule 31.22(1)(b) requires special circumstances providing a cogent reason for permitting the collateral use.

1. Parallel competition proceedings. The domestic proceedings and the Commission investigation raised significant overlapping issues. A Commission decision on article 102 would bind the domestic court under Article 16 of Council Regulation 1/2003. The policy in recital (22), avoiding conflicting decisions and promoting uniform application of the competition rules, made it highly desirable that the Commission should be able to consider the same evidence in the light of substantially the same arguments.
2. Relevant authorities. The reasoning in Apple Corps Ltd v Apple Computer Inc [1992] 1 CMLR 969 remained applicable under the CPR. The approach summarised in Synstar Computer Services (UK) Ltd v ICL (Sorbus) Ltd [2002] ICR 112 supported releasing the cross-undertaking where parallel EU competition proceedings required the regulatory body and court to evaluate the same evidential material. The policy rationale identified in Tchenguiz v Director of the Serious Fraud Office [2014] EWCA Civ 1409 was also engaged.
3. Here, the proposed disclosure concerned commentary on documents already held by the Commission. It therefore caused no further material invasion of Google’s privacy or confidentiality and did not undermine compliance with the disclosure obligation. Foundem’s different position from other complainants did not lessen the public interest in consistency. The prospect and cost of a response from Google were insubstantial objections.

There were cogent reasons for granting permission.