Vauxhall Motors Ltd & Ors v Denso Automotive UK Ltd & Ors

For an in-time application under CPR r. 7.6(2), the court exercises its discretion in accordance with the overriding objective. A claimant’s delay in preparing the case or commencing service, without a good reason, will ordinarily not justify an extension, particularly where limitation has expired.

For service out, the claimant must show a serious issue to be tried, a good arguable case on an applicable gateway, and that England and Wales is the proper forum. The forum question is assessed globally, by reference to the jurisdiction with the closest and most substantial connection.

An application to set aside permission to serve out is assessed when permission was granted. A stay for forum non conveniens is assessed when the court decides the application, including material settlements occurring after the hearing but before judgment.

The claimants, companies in the Stellantis group, sought damages from DENSO, Valeo and Sanden companies for alleged automotive-component cartels contrary to Article 101 TFEU and Article 53 of the EEA Agreement. The claims relied on a European Commission decision and overseas regulatory investigations, and included wider infringement and umbrella-damages allegations.

The defendants challenged jurisdiction under CPR Part 11. Valeo challenged an extension of time for service. The service-out defendants challenged the jurisdictional gateways, and all defendants relied on forum non conveniens. Sanden settled after the hearing but before judgment. The central issues were whether the claims could proceed against Valeo, whether the service-out gateways were satisfied, and whether France was the natural forum.

1. Valeo extension of time. The extension of time for service on Valeo was set aside. The claimants had waited more than a year after issuing the claim before beginning the service process. Preparing the particulars of claim, Royal Mail disruption, anticipated foreign-service periods, and alignment of service dates did not constitute good reasons. Nor had there been real and substantial settlement negotiations with Valeo. Sending the claim documents for information did not cure the failure, particularly because limitation had expired and Valeo would lose a limitation defence. The claim against Valeo was dismissed.
2. Service out. The jurisdictional gateway challenges failed. Gateway 3 was available when permission was granted because there was a serious issue to be tried against the anchor defendants. The claims of the OV claimants had a plausible evidential basis, including their pleaded overhang claim. The 2015 Sanden settlement could not, on the material available, be treated as settling all those claims. The Brazilian claimants also had a plausible case. At the jurisdiction stage the court could assume Brazilian law was materially the same as domestic law, absent contrary evidence, and could assume the single-economic-unit principle applied.
3. Good arguable case. The court applied the flexible approach explained in Brownlie v Four Seasons Holdings and Kaefer Aislamientos. The court should assess the relative strength of the evidence where reliably possible, but may rely on a plausible evidential basis where interlocutory material is too incomplete or finely balanced.
4. Forum non conveniens. France was clearly the natural forum and had the closest connection. The majority of the claims concerned supplies to French-based PSA companies, the economic loss was principally suffered in France, the claims were governed substantially by foreign law, and relevant witnesses and documents were mainly outside England. The United Kingdom supplies were de minimis. Parallel proceedings, common legal teams, disclosure differences and competition-law expertise did not establish a sufficient juridical advantage. The claimants’ deliberate choice of England to obtain English-style disclosure did not justify retaining the proceedings.
5. Changed circumstances and fresh evidence. Permission to serve out was assessed at the date permission was granted, but the forum application was assessed at the date of decision. The Sanden settlement therefore had to be considered. The application to admit documents obtained from Sanden was refused. Although the documents were apparently credible and unavailable earlier, they had no material effect on the forum analysis and did not satisfy the Ladd v Marshall test or the overriding objective.
6. Orders. The claims against the first and fifth defendants were stayed. The orders permitting service out on the remaining defendants were set aside, and the claims against those defendants were dismissed.