Samsung Electronics Co. Ltd & Ors. v LG Display Co. Ltd & Anor.

On an application for permission to serve a contribution claim outside the jurisdiction, the claimant must establish that England and Wales is clearly the appropriate forum. The court weighs all established connecting factors. A marginal advantage or finely balanced case is insufficient.

Where the underlying claim remains pending in England, that circumstance may powerfully favour trying the contribution claim here. Once the underlying claim has been settled, factors concerning the appropriate forum for that claim carry at most marginal weight. Contribution between cartel participants may take account of both relative culpability and causative responsibility. Market share is relevant, but it is not the only permissible measure.

The appellants and respondents had participated in a cartel concerning liquid crystal display panels. After 42 UK local authorities brought follow-on damages proceedings, the appellants settled those proceedings and subsequently claimed contribution from the respondents under the Civil Liability (Contribution) Act 1978.

Sir Michael Burton GBE held that the Far East was the more appropriate forum for determining the participants’ relative responsibility and set aside permission to serve the respondents outside the jurisdiction: [2021] EWHC 1429 (Comm). The appellants contended that he had adopted an erroneous approach to contribution proceedings, misunderstood the significance of the European Commission’s findings, and struck the forum balance incorrectly. The central issue was whether the judge had made a significant error warranting appellate intervention.

1. Appeal dismissed. The claimant seeking permission to serve outside the jurisdiction had to show under rule 6.37(3) of the Civil Procedure Rules 1998 that England and Wales was clearly the appropriate forum. It was insufficient that the competing forums were finely balanced or that England was only marginally more appropriate. The weight assigned to connecting factors was an evaluative matter for the first-instance judge. The Court of Appeal could intervene only for a significant error of principle or a significant error concerning the matters taken or omitted from consideration.

2. The judge had laid down no general rule that contribution claims concerning foreign conduct should ordinarily be tried where that conduct occurred. If an underlying claim remains pending in England, that may be a powerful or overwhelming reason to hear related contribution proceedings here. Once the underlying claim has been settled, however, the question concerns the appropriate forum for the contribution claim itself. Factors relevant only to a trial which will never occur have at most marginal relevance. The judge was entitled to determine the weight of the remaining English connections.

3. The appellants could not establish appellate error through arguments and evidence which had not been properly placed before the judge. Their reliance on the knowledge accumulated by English lawyers and experts was potentially powerful, but lacked the evidential foundation required at first instance. Nor did the principle of effectiveness assist them: they had been free to commence contribution proceedings earlier and had produced no evidence that an effective remedy was unavailable in South Korea or Taiwan.

4. Under sections 1 and 2 of the Civil Liability (Contribution) Act 1978, relative culpability and causative responsibility are both relevant to a just and equitable apportionment. Market share, turnover and similar measures may assist with causation, but contribution between cartel participants is not legally confined to those measures. The assessment should ordinarily be broad rather than unduly granular.

5. The Commission’s rejection of the respondents’ claim to have played a lesser role might arguably bind an English court if it formed the essential basis or necessary support for the operative decision. If binding, contradictory evidence would be inadmissible. The court did not decide that issue because the relevant recitals and developed argument had not been presented below. The judge could not fairly be criticised for deciding the application on the submissions and material actually placed before him.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2022] EWCA Civ 423.
• High Court, Commercial Court: Sir Michael Burton GBE held that England was not clearly the appropriate forum and set aside the order permitting service outside the jurisdiction: [2021] EWHC 1429 (Comm).