National Truck Rental Company Ltd v Man Importers Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 05 July 2022
• Neutral Citation: [2022] IEHC 404
• Year: 2022
• Court: High Court
• Docket Number: [2017 No. 1527 P]

Between:

National Truck Rental Company Limited

Plaintiff

and

Man Importers Ireland Limited, Man Se, Man Truck and Bus AG, Man Truck and Bus Deutschland GmbH, AB Volvo (publ.), Volvo Lastvagnar AB, Volvo Group Truckscentral Europe GmbH, Renault Trucks SAS, Daimler AG, Fiatchrysler Automobiles N.V., CNH Industrial N.V., Iveco SpA, Iveco Magirus AG, DAF Trucks N.V., DAF Trucks Deutschland GmbH

Defendants

[2022] IEHC 404

[2017 No. 1527 P]

THE HIGH COURT

Replies to particulars – Relevance – Damages – Defendants seeking an order directing the plaintiff to furnish full and proper replies to particulars – Whether the particulars sought were relevant

Facts: The plaintiff, National Truck Rental Company Ltd, claimed a variety of reliefs, including (a) a declaration that the second, third and fourth defendants (the defendants), or any of them participated in an ‘unlawful cartel’ and/or engaged in activities prohibited by the Competition Acts 2002-2017 (the Competition Act), (b) damages and/or compensation pursuant to s. 14 of the Competition Act, (c) damages and/or compensation for breach of Art. 101 TFEU, (d) damages for negligence, breach of duty and breach of contract, (e) exemplary and/or punitive damages, (f) interest pursuant to the Courts Act, (g) further or other relief, and (h) the costs of the proceedings. By notice of motion of 6th April 2022, the defendants sought that the following orders issue against the plaintiff: (1) an order directing the plaintiff, within such time as the court may direct, to furnish full and proper replies to paras. 8(2)(i) (“In respect of each of the trucks allegedly purchased by the plaintiff, please specify...(i) the price paid for the said truck exclusive of VAT”) and (n) (“In respect of each of the trucks allegedly purchased by the plaintiff, please specify...(n) whether the said truck was subsequently sold by the plaintiff and, if so, please specify the identity of the subsequent purchaser, the price they paid and the date of sale”), 10(4) (“[P]lease provide full and detailed particulars of...(4) the allegation that ‘by reason’ of the ‘agreement/decision/concerted practice’ the plaintiff was ‘obliged’ to pay more for trucks than it would have done in circumstances of undistorted competition”) and (5) (“[P]lease provide full and detailed particulars of...(5) the allegation that ‘by reason’ of the ‘agreement/decision/concerted practice’ the plaintiff was ‘induced’ to pay more for trucks than it would have done in circumstances of undistorted competition”) and 13(1) (“[P]lease specify...(1) the heads of loss and damage allegedly suffered by the plaintiff”) and (2) (“[P]lease specify...(2) the basis on which it is alleged that the plaintiff has suffered loss and damage by reason of the unlawful behaviour of the defendants”) of the notice seeking particulars of the defendants dated 21st November 2019; and (2) certain ancillary orders.

Held by the High Court (Barrett J) that, in respect of paras. 8(2)(i) and (n), overcharging and passing-on were key issues in the case. Barrett J held that the particulars sought were clearly relevant to the expert calculations arising. He held that the date element should also reduce discovery by placing a temporal limit on passing-on related discovery. He held that such information was available to the plaintiff. He held that an order directing the plaintiff to furnish full and proper replies in respect of those categories should issue.

Barrett J held that, in respect of paras. 10(4) and (5) and 13(1) and (2), having applied Quinn Insurance Ltd (Under Administration) v PwC [2019] IESC 13, an order directing the plaintiff to furnish full and proper replies in respect of those categories should issue. He did not see that it could credibly be contended that the parties should proceed to discovery without, e.g., a proper sense of the loss that the plaintiff claimed to have discovered and what the claimed link was between the defendants’ conduct and that loss. As regards paras. 13(1) and (2), he noted that the plaintiff had stated that it intended to rely upon the European Commission’s Practical Guide on Quantifying Harm in Actions for Damages Based on Breaches of Art. 101 or 102 TFEU (June 2013). He held that it would need to particularise further which specific elements of the Guide it intended to rely upon.

Application granted.

Summary

The second, third and fourth-named defendants in these proceedings (the ‘defendants’) have come seeking, amongst other matters, that the court issue an order directing the plaintiff to furnish full and proper replies to paras. 8(2)(i) and (n), 10(4) and (5) and 13(1) and (2) of a notice seeking particulars of the defendants dated 21 ^st November 2019. This judgment explains why the defendants' application has succeeded.

JUDGMENT of Mr Justice Max Barrett delivered on 5th July, 2022 .

I. Introduction

1 . By notice of motion of 6 ^th April 2022, the defendants have come seeking that the following orders issue against the plaintiff: (1) an order directing the plaintiff, within such time as the court may direct, to furnish full and proper replies to paras. 8(2)(i) and (n), 10(4) and (5) and 13(1) and (2) of the notice seeking particulars of the defendants dated 21 ^st November 2019; 1 (2) and certain ancillary orders.

II. The Grounding Affidavit – Part 1

2 . The application is grounded on an affidavit of Mr Casey, a partner in A&L Goodbody, Solicitors. That affidavit provides useful background information concerning this application. It is therefore quoted at length below. However, it should be noted that it is an affidavit sworn by a solicitor for the defendants. Thus, insofar as it makes complaint of how the plaintiff has acted, it (naturally) depicts the MAN worldview. So just because, in quoting from Mr Casey's affidavit, I recite certain complaints/criticisms that he makes of the plaintiff, that does not mean that I agree with those complaints/criticisms.

3 . Mr Casey avers, amongst other matters, as follows:

“ Introduction

3. This is an application to require the plaintiff to provide proper particulars of its claim in accordance with the Rules of the Superior Courts, so that the MAN Defendants may be in a position to fully understand the claim being made against them and to ensure that any requests for discovery are formulated appropriately so as to avoid unnecessary cost being incurred. The MAN Defendants have repeatedly sought particulars from the plaintiff and, despite the time and opportunity repeatedly afforded to the plaintiff to provide particulars of their claim, the plaintiff's claim still fails to provide the particulars required to allow the MAN defendants to understand the claim being made against them.

4. On 24 ^th November 2021, the solicitors for the MAN Defendants issued a notice of motion in Waterford Transport Company Limited v. MAN SE & Others… seeking the same relief sought herein. Where a notice of discontinuance subsequently issued in those proceedings, it was necessary for the MAN Defendants to issue the within motion, for which leave was granted…on 9 ^th March 2022.

MAN

5. At all material times MAN SE was the parent company of the MAN Group, which is one of the leading European utility vehicle manufacturers and providers of transport services. The registered seat of MAN SE was at [Stated Address in Germany] ….As of this date, all of MAN SE's rights and obligations transferred to TRATON SE, and MAN SE ceased to exist as an independent legal entity. A&L Goodbody LLP has corresponded with the plaintiff's solicitors to notify it of the merger and to address the possibility of an application to the court to amend the pleadings to reflect this development. In this affidavit, save where the context otherwise requires, my references to MAN SE shall be taken to be to TRATON SE insofar as they relate to the position after 31 ^st August 2021.

6. At all material times MAN Truck & Bus SE (formerly known as MAN Truck & Bus AG) was a wholly-owned subsidiary of MAN SE with its registered seat at [Stated Address in Germany] ….The product portfolio of MAN Truck & Bus SE includes transporters, trucks, buses, special vehicles and diesel motors as well as gas engines and focuses on activities in the fields of transportation of passengers and goods.

7. At all material times MAN Truck & Bus Deutschland was a subsidiary of MAN Truck & Bus SE with its registered address at [Stated Address in Germany] ….MAN Truck & Bus Deutschland GmbH is a distribution company which operates only within Germany since May 2003.

8. As is apparent from the foregoing, each of the MAN Defendants was domiciled in Germany. The MAN Defendants do not have any presence in Ireland.

Background

9. These proceedings arise from an investigation commenced and conducted by the Directorate General for Competition of the European Commission in relation to an infringement of Art.101 TFEU. Decision AT.39824 of the European Commission, delivered on 19 ^th July 2016 (the ‘Commission Decision’) found that certain truck manufacturers and others had infringed Art.101 TFEU….

10. The Commission Decision stated, amongst other things, that the MAN Defendants [and other motor companies] …(together ‘the Addressees’) had shared certain information relating to gross prices in the EEA for medium and heavy trucks and had coordinated on the limitation and timing of the introduction of certain emission technologies for medium and heavy trucks required by certain EU emissions standards in breach of Art.101 TFEU and Art.53 of the EEA Agreement (the ‘Conduct’)….The Commission found that MAN SE and MAN Truck & Bus AG (now MAN Truck & Bus SE) participated in the Conduct from 17 ^th January 1997 to 20 ^th September 2010. The relevant period for MAN Truck & Bus Deutschland GmbH is from 3 ^rd May 2004 until 20 ^th September 2010.

11. The Commission Decision stated at para.84 that ‘The trucks sector is...