21/10/2013
National Grid Electricity Transmission Plc v ABB Limited and others (and Secretary of State for Health v Servier Laboratories Ltd) [2013] EWCA Civ 1234
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Disclosure and the French Blocking Statute: Competition Law follow-on damages
The Court of Appeal has ruled for the first time on the effect of French legislation designed to "block" orders for disclosure made in proceedings in other jurisdictions.
In its judgment of 22 October 2013 in the leading competition law follow-on damages action, National Grid v ABB and others (heard together with the appeal in another case), the Court of Appeal (Laws, Rimer, and Beatson LJJ) has decided that the French defendants in the action are required to give disclosure under the CPR, despite the fact that, in so doing, those defendants would commit an offence under a French statute, commonly referred to as the "French Blocking Statute". The French Blocking Statute prohibits the provision of documents or information for the purposes of establishing evidence in judicial proceedings outside France.
The Court of Appeal held that the English Court was not required to use the judicial requesat procedure provided for by the EU Regulation on the taking of evidence (Regulation 1206/2001), distinguishing the recent European Court of Justice decision in Case C-332/11 ProRail BV v. Xpedys NV . The Court of Appeal upheld the first instance judge's exercise of discretion in favour of ordering disclosure who had held that it was 'virtually inconceivable' that the French defendants would be prosecuted in France.
The Court of Appeal refused permission to appeal to the Supreme Court, but granted a stay of the disclosure orders pending application by the French defendants to the Supreme Court.
The National Grid case was one of only two UK cases recently shortlisted in the Litigation of the Year category for the Global Competition Law Review Awards 2013.
Member of Chambers: Stephen Morris QC appeared on behalf of the French defendants (instructed by Hogan Lovells International LLP)
