Goode Concrete v CRH Plc
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 07 September 2017 |
| Neutral Citation | [2017] IEHC 534 |
| Docket Number | 2010 No. 10685P |
| Court | High Court |
| Date | 07 September 2017 |
[2017] IEHC 534
THE HIGH COURT
Barrett J.
2010 No. 10685P
and
Competition law – Discovery of documents – Proportionality – Confidentiality – Fishing expedition – Abuse of collective dominant position – Council Regulation 1/2003 – Commercial sensitivity
Facts: The key issue between the parties pertained to the discovery of documents. The plaintiff sought the disclosure of certain documents from the defendants in order to establish that the close links between the defendants were responsible for the elimination of the plaintiff from the concrete market. The defendants, too, had filed separate motions seeking the discovery of documents in relation to the plaintiff's decision to cease trading along with other categories, which were not in dispute. The plaintiff also contended that since the present case was a competition case, normal rules of discovery would not apply as per reg. 1/2003.
Mr. Justice Max Barrett allowed the discovery of limited categories of documents to the plaintiff in relation to the supply of concrete by the third named defendant in the relevant area. The Court, however, put a restriction of time limit within which such a discovery could be made and within certain confidentiality parameters so that only the legal experts of the plaintiff would be allowed to inspect the documents ordered to be discovered. The Court gave liberty to apply to the defendants in case the plaintiff did not provide any undertaking or there was any difficulty in the event of operation of the confidentiality ring. The Court allowed the motions of the defendants to the extent that they sought the discovery of documents for finding the reason behind the cessation of concrete business by the plaintiff. The Court refused the discovery of certain categories of documents sought by the plaintiff as being vague and irrelevant. The Court held that the documents that were proportionate to the key issue between the parties needed to be discovered. The Court noted that since the plaintiff had not specifically pleaded as to how the close links between the parties were responsible for its elimination from the competition market, the discovery of such documents could not be allowed. The Court held that reg. 1/2003 permitted the courts to apply the national procedures namely of equivalence and effectiveness while deciding the competition cases.
(Numbers in square brackets are paragraph numbers).
APPLICATIONS OF GOODE CONCRETE FOR DISCOVERY FROM (1) CRH PLC AND ROADSTONE WOOD LIMITED, AND (2) KILSARAN CONCRETE
I. Overview [1]
II. Previous Assurances [2]
III. Previous Dealings [6]
IV. The Court as Competition Authority [11]
V. Are the Rules as to Discovery in Competition Law Cases Different? [26]
VI. Proportionality [29]
VII. Statement of Claim [31]
VIII. Request for Particulars and Replies to Particulars [55]
IX. Some Legal Considerations [59]
(i) The Decision in Framus. [59]
(ii) The Damages Directive. [69]
(iii) The Decision in Tetra Pak. [70]
(iv) Some General Cases on Discovery. [71]
Ryanair v. Aer Rianta [71]
Ryanair Ltd v. Bravofly and Travelfusion Ltd [75]
Hartside Limited v. Heineken Ireland Ltd [77]
(v) Confidentiality Rings. [79]
Ambiorix Ltd v. Minister for the Environment (No. 1) [79]
Cooper Flynn v. Radio Telefís Éireann [82]
Koger Inc and anor v. O'Donnell and ors [85]
Church of Scientology of California v. Department of Health and Social Security [90]
MTV Europe (a firm) v. BMG Records (UK) Ltd and ors [93]
Ipcom GmbH & Co KG v. HTC Europe Co Ltd and ors [95]
The United Kingdom's Competition Appeal Tribunal Rules 2015 [96]
Bellamy & Child's European Community Law of Competition (6th ed.) [98]
(vi) Jurisdiction and rationale for confidentiality rings. [99]
X. Confidentiality and Commercial Sensitivity [100]
(i) Certain Issues Presenting. [100]
(ii) Ongoing Business. [103]
(iii) Conclusion. [107]
XI. The Categories of Discovery Sought against CRH plc and Roadstone Wood Limited [108]
(i) Temporal Scope. [108]
(ii) Category 1. [111]
I. Documentation Sought. [111]
II. Observations and Conclusion. [112]
(iii) Category 2. [113]
I. Documentation Sought. [113]
II. Observations. [114]
III. Conclusion. [115]
(iv) Categories 3 and 4. [116]
I. Documentation Sought. [116]
II. Observations and Conclusion. [118]
(v) Category 5. [119]
I. Documentation Sought. [119]
II. Observations. [120]
III. Conclusion. [121]
(vi) Category 6. [122]
I. Documentation Sought. [122]
II. Observations. [123]
III. Conclusion. [124]
(vii) Category 7. [125]
I. Documentation Sought. [125]
II. Observations. [126]
III. Conclusion. [127]
(viii) Category 8. [128]
I. Documentation Sought. [128]
II. Observations. [129]
III. Decisive Influence. [130]
IV. Conclusion. [137]
(ix) Category 9. [138]
I. Documentation Sought. [138]
II. Observations. [139]
III. Conclusion. [140]
(x) Category 10. [141]
I. Documentation Sought. [141]
II. Observations. [142]
III. Conclusion. [144]
(xi). Category 11. [145]
I. Documentation Sought. [145]
II. Observations. [146]
III. Conclusion. [147]
(xii) Category 12. [148]
I. Documentation Sought. [148]
II. Observations. [149]
III. Conclusion. [150]
XII. The Kilsaran Dimension [151]
(i) Overview. [151]
(ii) The Statement of Claim. [152]
Paragraph 5. [152]
Paragraphs 15 and 16. [155]
Paragraph 17. [157]
Paragraphs 18 and 19. [159]
Paragraph 24. [161]
(iii) Notices for Particulars and Replies Received. [164]
(iv) Categories of Discovery Sought. [166]
Categories 1 and 2. [167]
I. Documentation Sought. [167]
II. Breadth of Discovery Sought. [168]
III. 'Close Links'. [169]
IV. Conclusion. [171]
Categories 3 and 4. [172]
I. Documentation Sought. [172]
II. Breadth of Discovery Sought. [173]
III. The Market Definition Exercise. [174]
IV. Conclusion. [175]
Categories 5 and 6. [176]
I. Documentation Sought. [176]
II. Observations. [177]
III. Conclusion. [178]
Category 7. [179]
I. Documentation Sought. [179]
II. Observations. [180]
III. Conclusion. [181]
Category 8. [182]
I. Documentation Sought. [182]
II. Observations. [183]
III. Conclusion. [184]
Category 9. [185]
I. Documentation Sought. [185]
II. Conclusion. [186]
Category 10. [187]
I. Documentation Sought. [187]
II. Observations. [188]
III. Conclusion. [190]
Category 11. [191]
APPLICATION OF CRH PLC AND ROADSTONE WOOD LIMITED FOR DISCOVERY FROM GOODE CONCRETE.
XIII. Categories Sought and Agreed [192]
XIV. Agreement as to Applicable Principle [193]
XV. Category 12 [194]
(i) Documentation Sought. [194]
(ii) Predatory Pricing. [196]
Statement of Claim. [196]
Notice for Particulars and Replies to Same. [200]
Defence. [202]
(iii) Mismanagement, High Levels of Debt, etc. [204]
(iv) Notice for Particulars and Replies to Same. [207]
(v) Objections to Discovery. [209]
An issue of damages only. [210]
Goode Concrete's Offer. [213]
Proportionality. [215]
(vi) Conclusion as to Discovery of Category 12. [226]
XVI. Category 4 [227]
APPLICATION OF KILSARAN CONCRETE FOR DISCOVERY FROM GOODE CONCRETE [230]
XVII. Introduction [230]
XVIII. The Statement of Claim [231]
XIX. Relevance and Necessity [233]
XX. Proportionality [235]
XXI. Conclusion as to Discovery of Category 5 [236]
APPLICATIONS OF GOODE CONCRETE FOR DISCOVERY FROM (1) CRH PLC AND ROADSTONE WOOD LIMITED, AND (2) KILSARAN CONCRETE
Goode Concrete has come to court making all manner of allegations against the defendants. Central among them is that since at least late-2007 CRH/Roadstone and Kilsaran have tendered, offered for sale and sold concrete at below-cost prices in Dublin. Goode Concrete claims that the pricing practices of the defendants can only be explained on the basis that there has been a breach of competition law, specifically by way of (i) collusive tendering in breach of s.4 of the Competition Act 2002/Art. 101 TFEU, (ii) agreements or concerted practices in breach of s.4/Art. 101 TFEU and/or (iii) abuse of a collective dominant position in breach of s.5 of the Competition Act 2002/Art. 102 TFEU. The various allegations made are denied by the defendants. Indeed, CRH maintains that this case springs not from a concern as to abuses of competition law but ultimately from the fact that Goode Concrete tried to get CRH to buy its entire business, and then some of its assets, and when CRH declined to buy either, these proceedings commenced. Where the truth lies between the parties as regards all of the foregoing will fall to be decided at some future stage. For now, the court is concerned solely with four motions for discovery that have issued between the parties (one against CRH/Roadstone, two against Goode Concrete, and one against Kilsaran). Standing adjourned at this time are a couple of motions for security for costs which have issued against Goode Concrete.
Complaint is made by the defendants concerning past behaviour of Goode Concrete vis-à-vis the court. It is important to emphasise that no complaint is made by the plaintiffs, and no criticism is expressed by the court, as regards any of the lawyers for Goode Concrete (counsel or solicitors). The complaint made is this. At a number of interlocutory hearings in the past, various assurances have been given to certain judges of the High Court. Thus in May, 2012, at a hearing to settle the quantum of security for costs (it having previously been decided that an order for security for costs would be made), counsel (acting on instructions) said the following to the...
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