Apple Retail UK Ltd & Ors v Qualcomm (UK) Ltd & Ors

At an interlocutory jurisdiction stage, the court should assess whether the claim has a plausible evidential basis, rather than demand trial-level evidence. Procedural defaults are addressed by considering the seriousness and significance of the default, the reason for it, and all the circumstances, including the overriding objective. Evidence may properly be admitted where exclusion would cause delay and expense without advancing finality or fairness. The court retains procedural flexibility to give further directions or vary its approach where the circumstances have materially changed.

The claimants sought to establish jurisdiction over a United States defendant in a tort claim alleging abuse of a dominant position contrary to Article 102 of the Treaty on the Functioning of the European Union. The jurisdictional gateway relied upon was Gateway 9(a), concerning damage sustained within the jurisdiction.

In an earlier judgment, [2018] EWHC 1188 (Pat), the court had left the Gateway 9 issue unresolved and directed further evidence. The claimants subsequently served evidence from Mr Roman, although it was not confined to a reply to evidence served by the defendants. The central questions were whether that evidence should be admitted, whether the claimants had established the jurisdictional gateway, and whether amendments to the pleadings should be permitted.

1. Jurisdictional evidence. At this interlocutory stage, the court required a plausible evidential basis for the tort claim proceeding on the assumption that jurisdiction was established. Mr Roman’s evidence supplied that basis. The court therefore held that Gateway 9 had been established and that it should assume jurisdiction over the tort claim.
2. Procedural default. The court proceeded on the assumption that the evidence should have been served earlier and that the default was serious and significant. Applying the approach in Denton v TH White Limited [2014] 1 Weekly Law Reports 3926, it considered the seriousness of the default, the absence of a good explanation, and all the circumstances, including finality, cost and the overriding objective. Those considerations did not justify excluding the evidence.
3. Starting again and earlier orders. The rule in Parker v Schuller (1901) 17 Times Law Reports 299, insofar as it required a claimant to start again, was no longer to be applied. Following NML Capital Limited v the Republic of Argentina [2011] 2 Appeal Cases 495, the court had a discretion to select the order best serving the overriding objective. The approach in Tibbles v SIG Plc [2012] 1 Weekly Law Reports 2591 did not require a different result concerning the earlier order.
4. Amendments. Once jurisdiction was assumed, there was no remaining reason to refuse the red and green amendments, which were each in principle pleadable. Permission to amend was granted.

The judgment followed an earlier judgment of the High Court in the same proceedings, reported at [2018] EWHC 1188 (Pat), which had left the Gateway 9 issue unresolved and directed further evidence. The present court made the final determination on that issue.