Daimler AG v Walleniusrederierna Aktiebolag & Ors

Whether to order separate trials of liability and quantum requires a pragmatic balancing exercise under the overriding objective. The court must assess how the proceedings are likely to unfold under each course, considering cost, delay, trial management, prejudice, settlement, judicial resources and whether the issues can be cleanly divided.

A split is generally inappropriate where liability and quantum require overlapping disclosure or expert evidence, an eventual quantum trial is inevitable, and sequential trials and appeals would delay compensation and increase aggregate costs. Economic evidence about pricing may be admissible and reasonably required to prove cartel participation, particularly where contemporary documents are incomplete.

The claimant sought damages exceeding US$374 million for alleged price fixing and market sharing in the supply of roll-on roll-off shipping services. Its claim combined follow-on damages arising from a European Commission settlement decision with stand-alone claims concerning additional periods and routes.

At the first case management conference, the defendants applied for separate trials of liability and quantum. Alternatively, they proposed that selected jurisdictional and preliminary liability issues should be tried first. The claimant argued that liability and quantum involved overlapping disclosure and economic evidence, and that splitting the trial would delay substantial follow-on claims for which infringement was admitted.

The central question was which trial structure would secure the fair, expeditious and economical determination of the proceedings under the overriding objective.

1. The applications for a split trial were dismissed. Applying the guidance in Electrical Waste Recycling [2012] EWHC 38 (Ch), the overriding objective was best served by a single trial of liability and quantum. Separate trials were likely to produce delay, increased expense and disproportionate use of judicial resources.

2. The decision required a pragmatic assessment of how the litigation would probably unfold under each course. Relevant considerations included aggregate costs, trial preparation, inconvenience to witnesses, complexity, prejudice, the possibility of a clean division, duplication, appeals, settlement and the fair and efficient adjudication of the whole dispute.

3. There was no clean division between liability and quantum. Economic evidence concerning the effect of the alleged cartel on prices was admissible and might reasonably be required to establish infringement during disputed periods, particularly if historical documentary disclosure proved incomplete. The same pricing data and economic modelling could also be required for quantum.

4. A quantum trial would remain necessary because approximately 54% of the relevant commerce concerned follow-on claims for which infringement was not disputed. Splitting the proceedings would therefore defer an inevitable trial. It could also require separate disclosure and expert exercises, followed by intermediate appeals and a later trial undertaken from a standing start.

5. The defendants had not demonstrated significant savings. Different temporal or geographical outcomes could largely be accommodated by running different datasets through the same economic model. A combined judgment would also permit an appellate court to consider all findings on liability and quantum together.

6. Delay would materially prejudice the claimant’s substantial follow-on claim. Interest or a possible interim payment would not adequately answer that prejudice. Settlement was also more likely when the parties understood both liability and quantum.

7. The individual positions of particular defendants did not alter the balance because each faced substantial pleaded claims and possible joint and several liability. The alternative proposal to try selected preliminary liability issues would create additional demarcation problems and carry the same disadvantages. The matter was directed to proceed to one trial of liability and quantum.

• High Court (Commercial Court): At an earlier hearing, the court refused summarily to dismiss claims concerning specified non-EEA maritime services, referred jurisdictional questions to the Court of Justice under Article 267 of the Treaty on the Functioning of the European Union, and declined to stay the proceedings. No citation for that earlier judgment is stated.
• High Court: Permission was granted to serve the claim on CSAV in Chile and subsequently to serve contribution claims outside the jurisdiction.