Samsung Electronics Co. Ltd & Ors v LG Display Co. Ltd & Anor (Rev 2)

A contribution claim under the Civil Liability (Contribution) Act 1978 may be a “claim in tort” for the purposes of Practice Direction 6B, paragraph 3.1(9), even where brought by a joint tortfeasor rather than the original victim. The relevant tort is the underlying tort, and the gateway is satisfied where the resulting damage was sustained, or the causative act occurred, within the jurisdiction. The restitution gateway provides an alternative route where its statutory conditions are met. Nevertheless, gateway jurisdiction does not determine the appropriate forum. For contribution claims, the court must focus on the issue actually requiring trial, including the parties’ relative responsibility for the common damage. Where the relevant witnesses and documents are abroad and a fair trial is available there, England may not be the clearly appropriate forum.

The claimants had settled follow-on claims brought in England by 42 local authorities arising from a European Commission finding that Samsung, LG Display and others had infringed Article 101 TFEU through a cartel. Samsung sought contribution from LG Display under the Civil Liability (Contribution) Act 1978.

Henshaw J had granted permission to serve the proceedings out of the jurisdiction. LG Display applied to set aside that order, disputing the tort, restitution and statutory gateways and contending that Taiwan or Korea was the more appropriate forum. The central issues were whether the gateways were available and, if so, whether England and Wales was clearly the appropriate forum for determining relative responsibility between the alleged co-infringers.

1. Gateway. The contribution claim was a “claim in tort” within Practice Direction 6B, paragraph 3.1(9). The wording should be construed purposively, having regard to the history of the gateway, its assimilation to the Brussels Regulation and the need for a broad internationalist approach. There was no reason to distinguish a contribution claim brought by a tortfeasor from one brought by the original victim.
2. The relevant tort was the underlying infringement of Article 101 TFEU. On the pleaded case, damage was sustained in England through the importation and distribution of products at inflated prices, and the relevant acts occurred within the jurisdiction. The tort gateway was therefore satisfied.
3. The restitution gateway was also available in the alternative. The acts giving rise to LG Display’s alleged liability included Samsung’s entry into an English-law settlement agreement in England, under which Samsung assumed liability for more than its fair share of the loss. At least the routes concerning acts within the jurisdiction and enrichment obtained within the jurisdiction were satisfied. It was unnecessary to decide the separate question under paragraph 3.1(16)(c) concerning the governing law.
4. The statutory gateway in paragraph 3.1(20) did not arise. The claim was already covered, or arguably covered, by other gateways, and the final words of the gateway excluded its use in the circumstances.
5. Forum non conveniens. Applying The Spiliada [1987] AC 460, Samsung had to show that England was clearly the appropriate forum. The decisive issue was not proof of the cartel infringement, but the relative responsibility of the co-infringers for the common damage. That issue required assessment of documents and witnesses concerning the parties’ respective roles, including whether any party was a ringleader. Those materials were principally located in the Far East, and there was no evidence that a fair trial could not be held there.
6. The English connections, including the English settlement, English claimants, English law and the location of the underlying infringement, did not outweigh the forensic advantages of trial in Taiwan or Korea. The notices were dismissed and service out of the jurisdiction was set aside.

The judgment records that Henshaw J granted permission on 14 August 2020 to serve LG Display out of the jurisdiction. On LG Display’s application, the Commercial Court set aside that order and dismissed Samsung’s notices, while accepting that the tort gateway, and alternatively parts of the restitution gateway, were available.