Media-Saturn Holding GmbH & Ors v Toshiba Information Systems (UK) Ltd & Ors

On strike out and summary judgment applications in complex competition litigation, participation in and implementation of a cartel are broad, fact-dependent concepts. They may include intra-group sales, sales of transformed products and other conduct furthering the cartel’s objectives. The distinction between participation and knowing implementation should not be applied rigidly.

A claim may proceed where the available evidence gives it a realistic prospect of success, even though the decisive factual issues require trial. However, cartel participation ordinarily does not establish the intention to injure a particular claimant required for unlawful means conspiracy or unlawful interference. Mere foreseeability that a claimant may bear an overcharge is insufficient.

Media-Saturn and associated European retailers brought claims for losses allegedly caused by a cartel concerning colour picture tubes and colour televisions. The claims were brought against Toshiba and Panasonic group companies, including United Kingdom-domiciled companies relied on as jurisdictional anchors.

TIS and Panasonic Europe sought strike out or summary judgment. Panasonic Marketing Europe and Panasonic Industry Europe challenged the English court’s jurisdiction under Article 8(1) of the Recast Brussels Regulation. The claimants also sought amendments alleging liability through single economic units and shadow or de facto directorship.

The court considered whether the claims were sufficiently arguable, whether the economic tort claims disclosed the required intention to injure, and whether the claims against the German defendants were sufficiently closely connected with those against the English anchor defendants.

1. Summary judgment principles. The court applied the realistic-prospect test and declined to conduct a mini-trial. Competition claims involving clandestine conduct and information asymmetry ordinarily require caution before summary disposal. The court may nevertheless decide a short point of law where the evidence is sufficient.
2. EU competition claims. Participation and implementation are broad, non-technical concepts. An undertaking which knowingly takes a step furthering a cartel may be both a participant and an implementer. Intra-group sales, sales of transformed products and other activities furthering cartel objectives may constitute implementation. These questions are generally fact-dependent.
3. TIS and PE. The activities, corporate relationships, sales structures and available evidence gave rise to realistic and arguable cases that TIS and PE participated in or implemented the cartel and had relevant knowledge. The EU law claims against both defendants were therefore not struck out or summarily determined. The proposed shadow or de facto director amendments were also arguable and permitted.
4. Provimi ground. The contention that a company forming part of the same economic unit as an infringer may be liable where it contributes to implementation, notwithstanding separate proof of its knowledge, remained arguable. Sainsbury’s Supermarkets Ltd v MasterCard Incorporated did not determine that narrower question. The issue was better decided, if necessary, after factual findings at trial.
5. Economic torts. The claimants had no arguable case that TIS or PE intended to injure them in the sense required for unlawful means conspiracy or unlawful interference. Knowledge that cartel pricing might increase downstream prices, or that loss might be foreseeable, did not show that loss to the particular claimants was intended or inherent in the arrangements. Those economic tort claims were therefore liable to fail. The additional actionability issues concerning interference between cartelists were unsuitable for summary disposal.
6. Jurisdiction. The claims against PME and PI were sufficiently closely connected with those against TIS and PE to satisfy Article 8(1) of the Recast Brussels Regulation. It was reasonably foreseeable that they might be sued in England, and there was no firm evidence that the proceedings had been brought solely to oust German jurisdiction. The EU law claims against PME and PI were arguable. The economic tort claims against them failed on the same intention issue.