Vodafone Group Services Ltd & Anor v Infineon Technologies AG & Ors

Disclosure in complex competition damages litigation must satisfy the overriding objective and be proportionate to the issues, likely evidential value and costs. The fact that additional material may improve an estimate does not justify disclosure where the marginal benefit is insufficient to warrant the expense. The broad-axe approach assists with quantifying damages, but it does not relax the need to prove causation or justify inadequate or irrelevant disclosure. Sampling may be appropriate where the population is sufficiently homogeneous, but the court must adapt the sample to material sources of variation. A national trial should follow completion of relevant European proceedings where necessary to avoid inconsistent decisions. A firm trial date may nevertheless be fixed in advance, provided it allows adequate time to address the outcome of those proceedings.

Vodafone brought follow-on and stand-alone claims for damages arising from an alleged cartel in smart card chips. The claim concerned indirect purchases through SIM-card manufacturers and involved issues of cartel overcharge, pass-on, causation and quantum across several European countries.

The case management conference concerned the scope of disclosure sought from Vodafone and the defendants, including tariff, budget, contract, negotiation, production, utilisation and market-share material. The court also considered whether to fix a trial date before the Court of Justice had determined appeals concerning the European Commission’s cartel decision.

1. Disclosure and proportionality. The broad-axe approach may assist in estimating quantum, but causation remains a separate matter requiring proof. The broad axe is neither an excuse for inadequate disclosure nor a reason to order irrelevant disclosure. The court must consider the purpose of the material, its likely marginal utility, the costs of obtaining it and the sums at stake (paras 26–32).
2. Sampling and tariff disclosure. Disclosure need not cover every country or tariff. The overriding objective requires a fact-sensitive and nuanced approach. The homogeneity of the population, the representativeness of the proposed sample and the likely evidential value of additional material are relevant. Vodafone’s approach, focused on four major states, was modified to require disclosure concerning the largest tariff in each other state and the highest-revenue SIM-only tariff in each country (paras 47–53).
3. Defendants’ disclosure. The defendants’ mask-code matching approach was too narrow where they could identify models of chips supplied to Vodafone. Disclosure concerning contracts and production costs, capacity and utilisation was therefore required on a wider wholesale basis for the relevant defendants. Negotiation documents were confined to the mask-matched group because their principal purpose was illustrative and wholesale disclosure was unlikely to produce proportionate additional value (paras 69–80).
4. Renesas’s legacy-business difficulties did not justify a different order. Samsung’s likely small share of liability and the cost of wider disclosure justified limiting its disclosure to the mask-matched basis (paras 81–82). Additional market-share disclosure was refused because the likely improvement in accuracy was not proportionate to the cost (paras 83–86).
5. Trial timetable. The trial had to follow the CJEU process to avoid inconsistent decisions. The approach in Air Cargo was not a bar to fixing a date in advance. The trial was fixed for the first convenient date after 1 October 2019, allowing time to address the possible outcome of the CJEU appeal (paras 88–98).