Daimler AG v MOL (Europe Africa) Ltd & Ors (Rev 1)

Disclosure in competition damages claims must be limited to material that is relevant, necessary and proportionate. The court must consider the nature of the issues, the proposed method of proof, the likelihood and burden of finding documents, alternative sources, confidentiality, cost and the need for effective case management. Expert preference for additional data does not itself justify disclosure. Reasonable estimates may be based on averages, extrapolations and aggregates. Orders may require best available electronic evidence, short explanations of database compilation, representative sampling and focused searches. Applications that are premature may be revisited after the experts have analysed the initial disclosure.

The claimant sought damages arising from an alleged international RoRo shipping cartel. At the second case management conference, the court determined disputed applications concerning quantum, pass-on and effects disclosure, including transaction and cost data, tender materials, margin information, representative samples, vehicle pricing data and confidentiality designations. The applications engaged the proportionality principles applicable to competition claims and the parties’ proposed economic analyses.

1. Proportionality. The court applied Ryder Limited v Man SE [2020] CAT 3. Disclosure is not ordered merely because material is relevant. The court must assess whether it is necessary and proportionate, having regard to the issues, the likely method of proof, the burden and cost of disclosure, alternative sources, confidentiality and the likelihood that documents exist.
2. The initial burden was on the claimant to show, on the balance of probabilities, that the infringement affected prices. If that threshold were met, the court could make a proportionate estimate using averages, extrapolations and aggregates. It was unnecessary to require every potentially relevant dataset or transaction-level document.
3. Disclosure could properly be confined to the best available evidence. Where electronic databases were used, the disclosing party was required to give a short explanation of how the material had been compiled and guidance on how it should be examined. This would assist the experts and focus any later request.
4. The court ordered transaction, cost, margin, fleet and selected pass-on disclosure. It required representative samples where a broad search would be disproportionate, and focused searches for tender material by suitable custodians and search terms. Disclosure concerning all other original equipment manufacturers was refused at that stage because its necessity and proportionality had not been established, without preventing a later application.
5. Several applications were premature. In particular, further actual-cost, invoice and pricing material could be reconsidered after the experts had analysed the initial databases. The court therefore limited some disclosure periods and preserved liberty to apply.
6. Under the confidentiality orders, Daimler had to liaise directly with third parties that had designated their own documents. WWL could not consent to changing a designation which was not its confidentiality. The applications were determined through the disclosure directions and timetable set out in the order.

First-instance case management decision. The judgment refers to earlier decisions in the same litigation, including the judgment reported at [2019] EWHC 3197 (Comm) and the first case management decision reported at [2020] EWHC 525 (Comm).