Daimler AG v MOL (Europe Africa) Ltd & Ors

Strike out or summary judgment is discretionary, even where a first-instance court is bound by existing appellate authority. The court may consider the realistic prospect that the authority will be displaced by a pending appeal or reference to the CJEU, particularly where the issue is difficult, unresolved at European level, and likely to be determined before trial.

A pending CJEU reference does not automatically require either summary disposal or a stay. The court should weigh prejudice, proportionality, overlap with the remaining issues, trial timing, disclosure, costs, and the risk of multiple or inconsistent trials. A further reference may be appropriate where it is necessary for judgment and would assist uniform application of EU law.

Daimler claimed damages from several maritime carriers for alleged participation in a worldwide roll-on, roll-off shipping cartel contrary to Articles 101 TFEU and 53 EEA. The defendants applied to strike out, or obtain reverse summary judgment on, claims concerning services between non-EEA ports before 18 October 2006. They alternatively sought a preliminary reference to the CJEU.

The applications concerned the effect of the transitional EU competition regime, the scope of Regulation 1/2003, and the application of the Court of Appeal’s decision in La Gaitana Farms SA v British Airways plc. A Dutch court had referred related questions in Stichting Cartel Compensation v KLM. The issues were whether the claims had a realistic prospect of success, whether a reference was necessary, and whether the relevant claims should be stayed.

1. Strike out and summary judgment. The applications were dismissed. Under CPR rules 3.4(2) and 24.2, the court had a discretion. The summary judgment principles required a realistic rather than fanciful prospect of success, no mini-trial, and consideration of evidence reasonably available at trial. The court should hesitate where fuller factual investigation may affect the result, or where summary disposal may delay the eventual trial.
2. The point concerning the temporal jurisdiction of national courts under the transitional regime was difficult and remained in a state of flux. Although La Gaitana Farms SA v British Airways plc was binding authority, the reasoned reference in Stichting Cartel Compensation v KLM created a real prospect that the CJEU might adopt a different analysis. It was inappropriate to prejudge either court’s reasoning.
3. Strong case-management factors also militated against disposal. The affected claims formed only a small part of a major cartel action. The temporal and geographical scope of the wider claim, disclosure, expert evidence and trial preparation would remain substantially overlapping. Striking out could produce appeals, reinstatement, duplicated trials, increased costs and inconsistent findings.
4. Reference. A reference under Article 267 TFEU was necessary because the answer was decisive for the affected claims. It was appropriate in the exercise of discretion because the issue was of general importance, had not been expressly resolved by the CJEU, and a further reference would allow the defendants’ perspective to be considered and might be managed with the Dutch reference. The court also referred the novel issue concerning whether Regulation 1/2003 extended jurisdiction to non-EEA maritime services after 1 May 2004.
5. Stay. The claims were not stayed. The likely timing of the CJEU ruling, the substantial overlap with the remaining litigation, the avoidance of multiple trials, and the ability to compensate much of the defendants’ prejudice in costs made parallel progress proportionate.

First-instance decision. The judgment records that La Gaitana Farms SA v British Airways plc had been decided by the Court of Appeal and was binding on the High Court. The court declined to determine whether that authority was correct, instead exercising its discretion on the applications and making a reference to the CJEU.