Volkswagen AG & Ors. v MOL (Europe, Africa) Ltd & Ors.

In competition proceedings, disclosure from a third party must be proportionate to the issues and justified by a precise and narrow request. When exercising case-management discretion, the court may take account of the third party’s status, the fact that no remedy is sought against it, disclosure already available from defendants, and whether existing material may make further disclosure unnecessary. A refusal at an early stage may be revisited if later evidence supports a more focused request.

Volkswagen AG and other claimants brought competition proceedings concerning an alleged cartel in RoRo operations. At the first case management conference, the claimants sought disclosure from Nippon Yusen Kabushiki Kaisha, a Part 20 defendant, concerning regulatory investigations outside the European Union. The issue was whether that disclosure should be ordered immediately, given the material to be disclosed by other defendants and the possibility of a later, more focused request.

1. The application for further disclosure from Nippon Yusen Kabushiki Kaisha was refused at this stage.
2. Practice Direction 31(c), paragraphs 1.4 and 1.5, requires a disclosure application in a competition claim to identify the evidence sought as precisely and narrowly as possible, supported by reasoned justification. The court may permit disclosure only where it is proportionate.
3. In assessing proportionality, it was material that the Part 20 defendant was not sued by the claimants and that no remedy was sought against it. The claimants had pursued the other defendants without initially requiring disclosure from Nippon Yusen.
4. The court could not determine whether the European Union documents to be provided by Nippon Yusen would be sufficient. Nevertheless, their likely sufficiency was a relevant consideration in exercising the case-management discretion, particularly because Nippon Yusen was a non-primary defendant.
5. The claimants were also due to receive documents concerning non-European Union investigations from other defendants. They should first assess that material and then decide whether a narrower request to Nippon Yusen was justified.
6. The refusal was not final. A later focused application could be made, particularly after transfer of the proceedings to the Competition Appeal Tribunal, and the court encouraged constructive engagement with any such request.