Zantra Ltd v BASF Plc

A Norwich Pharmacal order may be granted where there is a sufficiently arguable case of wrongdoing, the information is needed to identify or sue the ultimate wrongdoers, and the respondent is mixed up in or has facilitated the alleged wrongdoing. The respondent need not be innocent of wrongdoing. Its own possible liability does not bar the jurisdiction.

In assessing whether to exercise the equitable discretion, the court may consider the strength of the proposed claim, the public interest in vindicating rights, deterrence, alternative sources of information, the respondent’s awareness, and confidentiality. An order is appropriate where the request is proportionate and is not a fishing exercise.

Zantra Limited sought a Norwich Pharmacal order against BASF plc. Zantra alleged that several national distributors of crop-protection products had acted together to exert commercial pressure on BASF, causing BASF to withdraw a recently announced direct distribution arrangement.

Zantra did not know the identities of the distributors involved or the content of their communications with BASF. It therefore sought documents and a witness statement identifying those parties and describing the relevant discussions, intending to investigate a possible infringement of Chapter 1 of the Competition Act 1998 and Article 101 of the TFEU. BASF argued that the evidence was insufficient and that its possible involvement or liability prevented relief.

1. Order granted. The criteria for Norwich Pharmacal relief were satisfied, and the court exercised its equitable discretion to grant the order. The precise form of the order was left for further submissions.
2. There was a sufficiently arguable case that two or more national distributors had acted in concert to apply commercial pressure to BASF. BASF had acknowledged that a majority of the distributors had applied pressure and that the reaction had caused it to reverse its decision. That evidence supported an inference of collusion, although it did not establish that collusive conduct had actually occurred.
3. The information sought was necessary to enable proceedings against the ultimate wrongdoers. The identities of the relevant distributors and the contents of their communications were matters particularly, if not exclusively, within BASF’s knowledge.
4. BASF was mixed up in or had facilitated the alleged wrongdoing because it had admitted bowing to commercial pressure. This was so whether BASF had acted innocently or was itself liable. A respondent’s possible status as a tortfeasor is not a bar to Norwich Pharmacal relief. Hilton v D IV LLP was based on a misreading of the qualification in Norwich Pharmacal Co v CEC: the respondent need not be free from liability.
5. The suggestion that BASF’s innocent conduct would break the chain of causation was untenable at this stage. If distributors had applied unlawful pressure and BASF had succumbed to it, the claimant could still investigate the distributors’ alleged wrongdoing. Whether BASF was also party to a related unlawful agreement was a separate question and did not affect the present application.
6. The court considered the additional discretionary factors identified in Hilton v D IV LLP. The public interest in addressing suspected anticompetitive conduct, the likely deterrent effect, the absence of another appropriate source, and the availability of confidentiality protections supported relief. The order was proportionate and did not amount to an inappropriate fishing exercise.

First-instance proceedings. No prior or appellate decision is stated in the judgment.