Emerald Supplies Ltd & Ors v British Airways Plc & Ors

This judgment arises out of a hearing on 31^st July 2014 of an Application Notice dated 22^nd July 2014 whereby the Claimants requested the Court to review (with such judicial assistance as might be necessary) the appropriateness/lawfulness of the redactions made by the Defendant airline (“BA”) and other airlines to the European Commission (“the EC”) decision of 9^th November 2010 in Case/Comp/99258 Air Freight (“the Decision”).

In order to understand the application and why it was made I need to set out the background in detail.

Nevertheless it must be appreciated that the necessity for the application arises solely from the one speed molasses like approach of the EC in relation to its determinations. It is a matter of great concern to me that this action has been stymied for many years because of the EC’s failure to proceed with anything like reasonable time for making its decisions. Further it is a matter of even greater concern that despite the fact that there have been considerable delays the EC in communications with me have indicated that there is no procedure whereby the matter can at least be expedited in an attempt to overcome the delays which have occurred or any attempt to address the situation.

The Claimants (and there are 565 of them) claim damages in respect of loss that they allege was caused to each of them by the unlawful conduct of BA in connection with a cartel in the market for air freight services (“the Cartel”).

The Claimants base that claim on 3 bases:-

The hearing took place on 31^st July 2014. Separately there was an application by BA to strike out the conspiracy and unlawful means claims and a cross application by the Claimants for negative declaratory relief to the effect that such economic torts could be founded on foreign misconduct. I heard that application on 1^st October and over a number of days and reserved the judgment on it. The judgment is to be delivered at the same time as the present one.

During the course of that hearing I was informed that a further action (being the third) had been issued in May 2014 with the same legal team representing them as the Claimants in this one by no less than 65,000 Claimants all of whom are apparently traders in China.

The Claimants in the present action range from Chinese fruit and vegetable packers to East African flower growers (Claimants 154-156).

The Claimants have identified 31 airlines that allegedly took part in the global Cartel (Consolidated Particulars of Claim “CPOC”) paragraph 3 and Annex (A). BA has commenced Part 20 proceedings against the majority (23) of those airlines.

The claims relate to overcharges on air routes between large numbers of territories across the entire world. The EU/EEA routes where one or both of the origin/destination are within the EU/EEA are listed at Annex (E) CPOC and there are 1,362 such routes.

Separately being the subject matter of the attack by BA are a further 885 routes where neither a point of origin nor a point of destination is within the EU/EEA. The Claimants contend that around 60% of all recorded spend covered by their claims concerns these foreign routes.

The aggregate amount of the claims is summarised in CPOC Annex (O) and is in excess of £1bn. The overcharge claims outside the EU/EEA amount to in excess of £500m. The period covered by the alleged wrongdoing is at least 1999-2007. The proceedings were commenced in September 2008 by 2 Claimants alleged to be representative of the others for damages said to be representative of a large number of Claimants for breach of EU and UK competition law. At that time there was no allegation of common law conspiracy or wrongful interference.

By a ruling of the Chancellor dated 8^th April 2009 (upheld on appeal) the representative element of the claim was struck out leaving only claims by the two named Claimants. As a result of that ruling a large number of additional Claimants joined in leaving a claim which without some form of surgery will self-evidently become completely unmanageable.

The question of infringement of the statutory breaches has been considered by the EU and it made an infringement decision on 9^th November 2010 against BA and eleven other airline groups.

The EC found the addressees of its decision had variously breached the above mentioned Articles and a further one in relation to the Swiss/European Community Air Transport Agreement. The period covered by the determination of the EC is the period between December 1999 and February 2006.

On 30^th July 2013 the Claimants added claims under common law for unlawful means conspiracy/interference by unlawful means.

In support of their case the Claimants seek to rely upon a number of decisions of foreign competition authorities/regulatory courts against BA as well as admissions in proceedings before such regulators and courts as set out in the CPOC at Annexes (B) and (C).

BA contends such decisions are inadmissible in these proceedings.

Subject to annulment actions pursuant to Article 263 TFEU brought by BA and other addressees of the Commission Decision dated 9^th November 2010 BA has admitted various infringements of the statutory duties.

It has further admitted that its participation in the Cartel infringed a number of foreign competition laws identified in Annex (M) of the CPOC as particularised in Annex A of its Defence.

On 10^th February 2014 the Claimants issued an application to inspect the Commission’s Decision together with a separate application for there to be a trial of various preliminary issues. That application was supported by the first witness statement of Boris Bronfentrinker as solicitor and partner in the firm of Hausfeld & Co LLP (“Hausfeld”). As set out in that witness statement the Commission Decision was issued on 9^th November 2010 with a press release on the same day confirming it had fined 11 Air Carriers including BA for operating a worldwide Cartel. BA as an addressee of the Decision has a copy of it in its possession. The Claimants have not seen the Decision in its entirety.

Despite the Decision having been issued merely (sic) 4 years ago the Commission has been unable to agree what part or parts of the Decision should be made public. There are obviously a large number of airlines affected in addition to BA. Some are apparently identified in the Decision and allegations or findings are made against them. Others are identified but no findings are made against them. These two categories feature as Part 20 Defendants to a claim brought by BA. Thus some of them have seen the Decision and are in the process of making representations about the wording of the published version. Others have not even seen the Decision, like the Claimants.

The Claimants sought a copy of the Decision suitably redacted to address legitimate confidentiality concerns in April 2012. In May 2012 BA refused to provide any. Accordingly the Claimants’ solicitors wrote to the Commission explaining the delay and in its response the Commission stated the following reason by the hearing officer “it will proceed as soon as possible to publish at least a provisional non confidential version of the Decision”. After further correspondence in June 2012 the Commission stated that they hoped it would be possible in the coming weeks to publish a meaningful Provisional Decision, but nothing has happened.

Following the hearing before me on 28^th March 2014 the Commission (at the instigation of one of the parties in this action) wrote to me on 23^rd April 2014.

Although the letter was addressed to me it was apparently sent to one of the parties to the litigation. The worrying paragraph is the second paragraph which says as follows:-

“The Commission understands the Court's concern at the delay in publishing a non-confidential version of the Decision. Under the present state of European Union law however, it is not possible for the Commission, within a reasonable timeframe, to override the numerous confidentiality claims made by addressees of the Decision, which prevent publication of a meaningful non-confidential version of the Decision. In this respect, I would refer you to an interim order made by the General Court in Case T-462/12 R, Pilkington Group Ltd v Commission and, on appeal, by the Court of Justice in Case C-278/13 p(R), Commission v Pilkington Group Ltd. The Court of Justice upheld an order made at first instance by the General Court restraining the Commission from publishing a non-confidential version of another cartel decision, the European Courts accepting the applicant's argument that the publication of material over which confidentiality was claimed could cause irreparable harm to the applicant. The determination of whether the material in question is indeed deserving of protection as confidential is a matter that will only be decided in the final judgment.^l In the light of the position taken by the Court in Pilkington, the Commission finds it is unable to publish a non-confidential version of the Decision, given the widespread objections to publication on grounds of confidentiality: the addressees would be able to rely on Pilkington to obtain interim measures from the European Courts preventing publication of a non-confidential version of the Decision. The further implication of the Commission's inability to override the addressees' confidentiality claims is that the Commission is unable to explain to the non-addressees the exact context in which they are mentioned in the Decision. The Commission is therefore not in a position to provide the non-addressees with the information necessary for them to make a substantiated application to your Court of the sort that appears to be contemplated by paragraph 8(2)(i) of your Order. The Commission has only been able to confirm, either in writing or orally and without any reference to any paragraphs of the Decision, that the non-addressees are mentioned in the factual part of the Decision. The Commission hopes therefore that you will understand that any applications made pursuant to paragraph 8(2)(i) of your Order by non-addressees of the Decision cannot be substantiated further than a request that any reference to the non-addressee making the application be removed from the Redacted Decision to be prepared pursuant to paragraph 10 of your Order. ”

Further the Commission gave no assistance and ultimately as appears from a later extract left how the Decision should be dealt with to me:-

“As the Commission has confirmed to non-addressees that it intends to redact the names of third parties from the non-confidential version that will ultimately be published, and as it appears that the steps set out in your Order are intended to substitute for the absence at present of a published non-confidential version of the Decision, the Commission would respectfully suggest that it may be unnecessary for non-addressees to make applications pursuant to paragraph 8(2)(i) of your Order. In the light of Pergan, the Court could simply order that the Defendant's solicitors remove the names of any third parties from the Redacted Decision that they are to prepare pursuant to paragraph 10 of your Order. This would also save costs and deal with the concern expressed to the Commission by some non-addressees that, by making an application pursuant to paragraph 8(2)(i) of your Order, they will thereby reveal their identity, and thus undermine the very purpose of the application pursuant to paragraph 8(2)(i). ”

Although the letter was sent in the “spirit of co-operation” between the national courts and the EC there does not with respect to the Commission seem to be much co-operation from it. Despite the fact that it must be self-evident that 4 years even just to consider working out the non confidential part of the Decision is completely unacceptable no steps are being made to speed up that process and no indication is given as to when the whole process will be finalised.

As I said in reply to their letter the spirit of co-operation must be a mutual thing but it does not with respect appear to be very mutual. I do not think it is acceptable for these kinds of delays to be imposed on the Courts within this jurisdiction. The events go back some 17 years and I was told at the hearing in March 2014 that it was possible that matters would not be finished within the European system until 2020. These proceedings are already stale as they are already nearly 6 years old and they have not moved beyond close of pleadings. There has been no disclosure, no exchange of witness statements and as will appear below there are apparently restraints on this jurisdiction in the “spirit of co-operation” in coming to decisions which might be at variance with the decisions that the Commission make.

Of course there are well established procedures within these courts to protect people’s confidentiality. I have come to the conclusion as I shall set out below that together with restrictions on the Claimants’ ability to bring proceedings against anybody other than those already in the Part 20 proceedings without permission of the court provide a more than ample protection of the so-called confidential issues in the Decision.

On 28^th March 2014 I made an order (inter alia) attempting to address the Decision. Part of that order (paragraph 7) required BA to lodge a complete copy of the Decision kept confidentially in possession of the court. That order was varied by consent on 30^th April 2014 to provide a regime whereby in effect the Decision would be circulated between the people who might be potentially affected and they would attempt to come up with a part of the Decision that everybody felt could be revealed to the Claimants.

In the event the document that was produced pursuant to that exercise was and is completely useless because so much has been redacted. That has led to the present application (it looks like the kind of redactions seen in some FOI cases).

BA and the other parties acknowledged that the redactions were unacceptable and the process was revisited in August 2014. However in the meantime I informed the parties on 12^th August 2014 what my decision was namely that I had decided that the entirety of the Decision should be circulated within the confidentiality club. I also ordered that decision be set out in an order with reasons to be given later. On 14^th August 2014 Lord Justice Jackson stayed the order granting inspection by the Claimants of the revised redacted version of the Decision but he had not seen my judgment of course.

Thus at the moment some parties to this action have the Decision in a full form (i.e. BA and the addressees) the Claimants do not have a full copy nor do the non-addressees. This does not seem sensible or just. The question for consideration is the extent to which it is possible for a Judge in this jurisdiction to order the disclosure of the Decision in un-redacted form and whether there should be any protections and if so what in making such an order. The other question is whether or not no such order can be made.

It is undoubtedly the case that but for the various decisions that I refer to below the Decision would be disclosable in these proceedings (subject to any plea of legal professional privilege in respect of any matters appertaining to the Decision). Equally all documentation any party has in respect of the investigation by the Commission and the Decision would in my view be prima facie disclosable.

As regards the Decision it is an open point (and still for argument later on in this action) what weight is given to the Decision.

The Claimants in frustration have issued the present application. It modified the existing one as a result of the debates that took place before me in March 2014.

The Claimants by their application sought to create a regime whereby I would have the doubtful privilege of reading the entirety of the Decision, trying to understand it despite having no detailed knowledge of the background of the case and the issues and then decide which part or parts of the Decision ought to be redacted.

The plain fact is that unlike the various teams that have appeared in front of me with unlimited resources the Judge (in this case myself) has no resource whatsoever. The Claimants’ suggestion was that I should be provided with a legal assistant to give me guidance and help. They suggested somebody who according to his CV has considerable experience in this area. One preliminary difficulty was that in his former career as a solicitor he had instructed me at the Bar but that was over a decade ago and that was not a problem. More significantly he was no longer practising as a solicitor and had been called to the Bar and this summer joined my former chambers.

Unsurprisingly all the other parties objected to this procedure for various reasons. In my view it was a well intentioned proposal and the objections bordered on the ludicrous to the insulting. The idea that I as a Judge would be overborne by a legal assistant and effectively defer the Decision to that legal assistant is ludicrous. Several of the Judges (including myself) have the benefit of legal assistants provided by firms of solicitors over the course of the legal year. Indeed my current legal assistant is employed by one of the firms of solicitors in front of me. No one thought that was objectionable.

I do not see this assistance as a matter of principle would be any different to assessors. He would provide the logistical support which I do not have.

However I have come to the conclusion that the task for me even with assistance is an impossible one and is objectionable. If the parties cannot agree what should be redacted I do not see why I as a Judge should be forced into doing that exercise bereft as I am of detailed information of the background and of the issues to enable me to edit out the Decision.

I therefore decline to contemplate reading the Decision with or without assistance.

Without the assistance of any European authority this would not pose a problem.

Issues of confidentiality and its preservation regularly arise in all manner of different cases in the Chancery Division. Issues involving a party being required in the civil action to give evidence that might incriminate him also regularly are come across in the Chancery Division. The solution is a tight confidentiality ring. The most wide ranging one in my experience is my decision of Attorney General of Zambia v Meer Care & Desai [2005] EWHC 2102 (Ch). In this case the Attorney General of Zambia had brought proceedings against the former President of Zambia the former head of the Zambian Secret Service and several businessmen for conspiracy to defraud the Zambian Government by extensive misappropriation of government funds for their own purposes.

The vast amount of the funds were channelled through either compliant firms of solicitors in England and Wales or a Zambian bank in England. That was the reason why the Attorney General brought proceedings in this jurisdiction.

However the Defendants had all been charged with criminal offences in Zambia the former head of the Secret Service had fled to the Congo and the Defendants applied to stay the proceedings.

There were two bases for the stay. The first was that the terms of their bail (especially after the flight of the former head of the Secret Service) required them to surrender their passports. Thus they could not participate in the proceedings in England and Wales because they were not allowed out of the jurisdiction. The Attorney General opposed that saying it would be quite possible for them to defend themselves by video link but that was plainly unsatisfactory.

The second ground of opposition was that for them to be able properly to defend themselves it would require them to reveal matters. That would then breach their right to silence in that the answers they gave in civil proceedings could be used against them in the criminal proceedings that had not yet taken place in Zambia. It is actually doubtful whether or not answers given in civil proceedings necessarily benefit a prosecution in subsequent criminal proceedings but the point is at least arguable.

The solution to those two objections to the proceedings in England and Wales was not difficult. First I indicated that I would hear part of the case in Zambia where they could give evidence fully. Second I directed that there be a confidentiality ring as regards the entirety of the trial and the evidence given in it. To facilitate that the Attorney General undertook not to use any of the material obtained in the trial other than in the trial and for that purpose to reinforce that undertaking he surrendered his diplomatic immunity.

An appeal against that decision was dismissed ([2006] EWCA Civ 390). The reality however was that the Defendants had no intention of participating in the trial at all. Once their objections were disposed of they (in their words) “discontinued participation in these proceedings”.

In the present case the concern is that the Decision might reveal alleged wrongdoing against people who have not participated in that exercise or there might be observations or findings within that decision which the Part 20 Defendants in particular had not had an opportunity to deal with. The other concern is the potential damage caused by the material going in to the public domain. Finally there is the possibility that the Decision might identify other people against whom claims could be brought.

In the instance of this case none of those is a serious problem provided there is a tightly drawn confidentiality ring. The Claimants are pursuing BA. It has admitted breaches of the statutory restraints. To that extent it will have to reveal the details of the Decision which it has admitted in any event. BA has of course a full copy of the Decision. However it has brought Part 20 proceedings against potential Defendants some of whom have not seen the Decision. Nevertheless if the matter is left as it is BA will have the advantage (for example) of being able privately to utilise the Decision if it can to assist it in claims it might bring against the Part 20 Defendants when they not having the Decision are unable to see the material that BA is able to use privately for its own benefit.

The Claimants have no direct claim against the Part 20 Defendants in these proceedings. Of course they do not need to for the purpose of their claim if it survives the strike out application. They have no doubt as a result of a considered decision simply decided to sue BA as one of the alleged parties to the conspiracy. That makes it relatively easy for them in the sense that if they establish the conspiracy and that BA was a party to it BA will become jointly and severally liable for all losses ensued by all Claimants that were caused by acts done in furtherance of the conspiracy. It will be left to BA to pick the pieces up if it can and seek to spread the loss amongst the other conspirators.

I cannot see on the state of the case as it is that the Claimants have any interest in pursuing anybody else beyond BA.

The Part 20 Defendants clearly have an interest in seeing the entirety of the Decision for the reasons that I have already said.

It follows therefore that if there is a confidentiality ring between the existing parties and the Claimants are barred by order of the court from using the Decision to commence any proceedings whether within this action or in any other action within this jurisdiction or elsewhere against the parties to this action or any other party, there is no risk of any of the matters that are raised as concerns coming into operation. The Decision will not go public; it will be confined to the issues in this case only so there is no fear of fresh proceedings as they have already been commenced and nobody’s reputation will be damaged because the matter will not go public.

The only way in which it will not work is if somebody breaches the confidentiality ring. A court should not decline to order a confidentiality ring because somebody might breach it. The opposite is the case. The court is entitled to assume that the parties to a confidentiality ring will comply with it. Further of course if the confidentiality ring is broken the court has the considerable power as of contempt to deal with such breaches.

To my mind all of this makes sense and will provide the complete answer to the fears that have been raised in this case.

BA did not have any serious opposition to the Claimants’ application for disclosure of the Decision. It was concerned to safeguard the rights of addressees and non addressees to redact parts of the Decision. As a result of the hearing in March 2014 a regime was put in place for redaction to be made by all parties potentially concerned in the content of the Decision. As I said above however I do not think that led to a satisfactory conclusion.

Further BA has not sought to redact any part of the Decision on grounds of a decision Pergan Hilfsstoffe Fur Industrielle Prozesse GmbH v Commission [2007] ECR II-4225 (“Pergan”).

Nor has it sought to redact any part of the Decision based on Legal Professional Privilege grounds. However it did seek to challenge the concept of “leniency materials” submitted to the Commission for the purposes of mitigating any consequences of the unchallenged findings made against it.

There are thus three issues raised in opposition to disclosure of the Decision:-

There is a preliminary point. There is a duty of “sincere co-operation”.

The duty of sincere co-operation provided for in Article 4 (3) of the TEU provides:-

“Pursuant to the principle of sincere co-operation, the Union and Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”

This duty binds all Member States including courts (Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR 1-113 69). The object is to promote legal certainty and requires Member States to avoid making decisions that could conflict with a decision contemplated by the EC.

Thus it is submitted (by Air Canada and other addressees of the Decision) that there is a risk that the Decision the Court makes regarding the Claimants’ application could conflict with future decisions by the EC in respect of their applications for redaction (as well as future decisions by the European Courts on appeal from those EC Decisions). Thus it is submitted that where contested material is provided to the Claimants a subsequent decision of the European Court would be robbed of practical effect.

There are a number of reasons for rejecting that submission. First there is no question of coming to a concluded decision that might be in conflict with the EC or the European Court decision. It is accepted that it is not possible to have a final trial within this jurisdiction pending finality of the European process. Equally however it is accepted that it is possible for this court to proceed to examine matters and identify issues in advance of the final trial. In respect of the Decision that exercise will be done under a confidentiality ring.

I do not see that there is any potential conflict in that evaluation process as regards decisions that have to be made as opposed to interlocutory determinations as to what items of the Decision should be redacted. I have already observed that the disclosure of the entirety of the Decision within this confidentiality ring will not adversely affect any party that is concerned with the Decision as they are already parties to this action. I have already observed on the absurdity of some parties having full access to the Decision, some having a limited access and some having none at all.

Further in the letter from the EC to me dated 25^th April 2014 the Commission said:-

“In case your client fears that the disclosure of the Decision in the above mentioned proceedings may compromise your client’s rights, it is for the High Court to assess any such claim and decide on the appropriate measures. As a Court of a Member State of the European Union the High Court is competent both under the EU and national laws, to resolve any such claim, striking the right balance between your client’s rights and the rights of any other parties, including those of the Claimants for damages”.

Similarly in a letter to Singapore Airlines from the EC dated 19^th March 2014 the Commission said:-

“Bearing in mind that the above mentioned private litigation is taking place in the EU, the national Court has the competence, expertise and necessary legal means, both under EU and national laws, to resolve any such claims, striking the right balance between your client’s rights and rights of any other parties, including those of the Claimants for damages”.

Thus the following appears to be the position:-

The Claimants’ rights are to have the matters brought to trial and tried justly and fairly with all requisite information available to it within the bounds of the rules as to admissibility (such as issues as to privilege and the like). The rights of Defendants as I understand it are that this Court should do nothing that might be inconsistent with the decisions that might be made in the EC and the European Courts in respect of these issues and that they should have confidentiality as regards production of the Decision in part or in whole as one of their rights. The latter right of course is to ensure that their Defence is not unfairly compromised by material being disclosed which they might challenge without having an opportunity to challenge it or matters that are in the Decision should not be put in the public domain when they have not had the opportunity to challenge them because of the damage that might ensue.

They are fully protected in the EC as regards the EC’s inability in effect to come to a decision. As regards the situation within this Court they are to my mind fully protected by the confidentiality ring and I have heard nothing from anybody in my view which suggests their rights will be adversely affected by disclosure within the confidentiality ring. I reject therefore Air Canada’s submission that I should view the EC’s letters as indicating that it did not appreciate the extent that an order for disclosure in this Court would undermine their separate applications for redaction which are currently pending before it. I do not see how what I might decide within the confidentiality ring can possibly have an impact on the submissions that have been made to the EC. Self-evidently the EC because of the confidentiality ring will itself not be aware of what decisions are made in this Court so I do not see how there can possibly be any adverse impact. One should avoid a knee jerk reaction as opposed to an analysis of what actually will happen.

It must be borne in mind that there has been no mutual assistance as between this Court and the EC; the latter has simply declined to do anything beyond saying that it is unable to do anything whether by speeding up a decision or even making a decision.

The numerous parties (as Mr Harris QC said virtually the whole of the competition bar) varied.

BA’s stance was that they had made no redactions on Pergan grounds nor on privilege grounds. With regard to the leniency redactions it accepted the Claimants’ test namely the redaction should be applicable only to material created in the context of the leniency application and not to contemporaneous pre-existing documents. Thus Mr Patton who appeared for BA said :-

“Insofar as the approach in principle to the redactions is concerned, there is no issue between [BA] and the Claimants so far as we can discern which your Lordship needs to decide today”. (T37)

The main obstacle to simply disclosing the Decision within the confidentiality ring came from the Part 20 defendants. BA’s attitude was neutral (although perhaps not as neutral as it would appear). It was indifferent because of course it had the judgment of the Decision and is able to deploy its contents in its claim against the Part 20 defendants. As I have already said some or other of those have not seen it. It defies logic to understand why given the fact that the Decision is available to BA in its entirety and in this case being used by BA in the claim against them, they do not wish the document to be put in the confidentiality ring so that they can fully see what is said about them in the Decision and deal with it.

Equally it is difficult to see what is the point of the enthusiasm for the claimants to see the Decision? Their claim is against BA which has already admitted some breaches of the statutory regime. It is also fairly indifferent to disclosing the Decision to them.

I considered this in argument. The only possible fear so far as I can see of the Decision being revealed is that the claimants might wish to bring actions against other persons i.e. some or other of the Part 20 Defendants.

Once again this is difficult to see when one stops and thinks about it what possible incentive the claimants have in complicating the litigation by bringing proceedings against such Part 20 Defendants when it has a claim against BA. Nobody is suggesting that whatever the level of damages that are awarded if the claimants established some or all of their claim then BA will be able to satisfy it. The real debate is on the contribution proceedings.

In any event the way to forestall that fear, as mentioned in paragraph 56 above, is simply to prevent the claimants using the Decision to bring proceedings against anybody else either in these proceedings or fresh proceedings or in any jurisdiction elsewhere without the consent of the courts in this action. Any disclosure to the confidentiality ring will be on those terms.

The objection to the proposal is that it is a weaker protection than that provided by Pergan which I shall have to deal with. None of the parties could point to me what was the weakness in the confidentiality ring thus deployed. It is possible that a party might breach the terms of the confidentiality ring. However, the possibility of breaching it is not a reason for not being satisfied with the regime. A court is entitled to assume (especially when dealing with International Airlines) that its orders are going to be obeyed.

The other advantage is that the disclosure of the Decision on that basis puts everybody on an equal basis within this litigation. That would not be the position if the Decision was redacted in whole or in part. I have already commented on the unworkability of the proposal that I (with or without a legal assistant) somehow determine what redactions are properly made by the parties. That would require a breadth of knowledge of the proceedings before the EC about which I know nothing and the depth of the litigation in these proceedings. It is a disproportionate use of judicial time to do it to protect what in my view is an illusionary fear.

This is further reinforced by the fact that the EC director’s letter to me has in effect surrendered any opportunity to exercise control over the release of the Decision within these proceedings. It has left it to my discretion and in my view my discretion should be exercised according to the procedures within the CPR. I accept of course that Pergan is something that I ought to follow if it creates something that binds me or provides guidance which is appropriate to follow in this case.

I remind the parties of course that the attempted redactions by the Part 20 Defendants show the unreliability of their actions given the wide ranging redactions which were produced first time around which they promptly retreated from when the Claimants renewed their application.

The EC adopted a Decision finding that various companies were responsible for a Cartel in the organic peroxide market. For limitation reasons it was unable to proceed with an infringement decision against Pergan for its involvement in a Cartel earlier than 1^st February 1997. After that date the EC considered it had insufficient evidence so it could not find Pergan guilty of an infringement then either. On that basis it closed its investigation into Pergan. Subsequently the published version of the Decision which was not addressed to Pergan contained a detailed description of its participation in the Cartel alongside other companies who were all addressees of the Decision and who the EC had found had participated in the Cartel between 1971 and 1999.

In that context it is necessary to consider the Decision.

Pergan asked the EC to remove from a version of the Peroxide Decision intended for publication all reference to it and its alleged offending conduct on the ground that it was not the addressee of the Decision and that the proceedings which were initiated against it had been closed (paragraph 15 referring to recital 78 of the Peroxide Decision). In so saying Pergan asserted that its involvement had been disputed in the course of the administrative procedure and the recitals were inaccurate. The EC ultimately declined to remove the references and Pergan brought the action after the Peroxide Decision had been published claiming that the Court could annul the Decision of the EC insofar as it rejected Pergan’s request for removal of all references to it in the definitive published version of the Peroxide Decision.

The Commission in opposing the application submitted that Pergan’s action was based on a false premise that the disputed information was of a binding nature (paragraph 35). The EC also argued that the non binding information related to Pergan in the Peroxide Decision which is not formally expressed in the operative part of the Decision is not for the purpose of case law subject to a Decision which the national Courts must take into account with a result that the findings in the preamble to the Peroxide Decision was thus capable of being subject to an action for annulment only to the extent to which as grounds of an act adversely affecting a person’s interest they constitute the necessary support for its operative part (paragraph 52). Further it argued that part of the Peroxide Decision did not contain any finding concerning Pergan capable of prejudging the independent appraisal by a national Court (paragraph 53). The Decision distinguished those that had been the subject of a finding of breach of competition law. In that case the Court decided that such an organisation did not merit any particular protection Thus it said in paragraph 72:-

“72 The Court would point out that the interest of an undertaking which the Commission has fined for breach of competition law in the non-disclosure to the public of details of the offending conduct of which it is accused does not merit any particular protection, given, first, the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished, and, second, the fined undertaking's ability to seek judicial review of such a decision (Bank Austria Creditanstalt v Commission, paragraph 46 above, paragraph 78). The Court considers that this appraisal applies mutatis mutandis to a decision in which an undertaking is found to have committed an infringement, but proceedings against it are barred by limitation pursuant to Article 1 of Regulation No 2988/74, the Commission being implicitly authorised to take that decision on the basis of the rules laid down by Regulation No 17, provided that it shows a legitimate interest for doing so (Joined Cases T-22/02 and T-23/02 Sumitomo Chemical and Sumika Fine Chemical v Commission [2005] ECR II-4065, paragraphs 60 to 63). ”

In the case of Pergan the Court determined that it had no standing to bring an action against the Peroxide Decision because the Commission had made no finding attributable to Pergan see paragraphs 73-74.

Nevertheless the Court concluded that Pergan had a right to be protected as regards its secrets and also was entitled to the benefit of the presumption of innocence saying as follows:-

73 However, the application of the case law cited in paragraph 72 above presupposes that the infringement found at least appears in the operative part of the decision and that the decision is addressed to the undertaking concerned so that it may contest that infringement in court. As the Commission itself argues, regardless of the grounds on which such a decision is based, only the operative part thereof is capable of producing legal effects and, as a consequence, of adversely affecting an undertaking's interests. By contrast, the assessments made in the grounds of a decision are not in themselves capable of forming the subject of an application for annulment. They can be subject to judicial review by the Community judicature only to the extent that, as grounds of a measure adversely affecting a person's interests, they constitute the essential basis for the operative part of that measure (order in Case C-164/02 Netherlands v Commission [2004] ECR I-1177, paragraph 21; Case T-213/00 CMA CGM and Others v Commission [2003] ECR II-913, paragraph 186), and if, in particular, those grounds are likely to alter the substance of what was decided in the operative part of the measure in question (see, to that effect, Case T-251/00 Lagardère and Canal+ v Commission [2002] ECR II-4825, paragraphs 67 and 68).

80 In the present case, as the Court has pointed out in paragraph 74 above, the applicant did not have standing to bring an action against the peroxides decision, given, in particular, that its participation in the infringement was not referred to in the operative part even though it contested the merits of the grounds of that decision in which its participation in the infringement was mentioned. Such a situation is contrary to the principle of the presumption of innocence and infringes the protection of professional secrecy, as interpreted in paragraphs 75 to 78 above, which require that respect for the reputation and dignity of the applicant be ensured. The disputed information must therefore be held to be covered by the obligation of professional secrecy within the meaning of Article 287 EC. In that regard, the Court would point out, finally, that the Commission itself accepted, during the hearing, that it could have published the peroxides decision by limiting itself to finding that the applicant had participated in the administrative procedure and to closing the investigation in its regard by reason of the limitation period. It must be held that, in those circumstances, there is therefore no public interest in publishing the disputed information that is capable of prevailing over the applicant's legitimate interest in having such information protected.

Before I consider the impact of the Pergan Decision I must address what is said by Mr Beard QC on behalf of Air Canada and others in paragraph 12 of his skeleton argument. I accept that the hearing on 27^th and 28^th March 2014 on the question of whether the addressees could invoke Pergan at that time I decided it against the Claimants. I offered them the opportunity for a reasoned decision but neither they nor any of the other parties then sought one. As a consequence of that order the parties attempted a regime whereby all parties potentially interested in this process could make redactions that they required under the 3 headings of Leniency, Pergan and Legal Professional Privilege and present the Claimants with the Decision thus redacted. The procedure was a farce.

In my view given the abject failure of the procedure the Claimants were entitled to seek a review of my decision of 27^th and 28^th March 2014. Under powers I have under the overriding objective under CPR 3 I also have a power to vary or revoke an order under CPR 3.1 (7). The failure of the process of redaction is sufficient reason to invoke that power. However I do not accept that CPR 3.1 (7) needs a material change of circumstances or a statement of facts. It requires an exceptional factor for the Court to vary or revoke an existing order so as to ensure that the procedure is not abused. Thus the Court should be alert to ensure that it is not an attempt to a backdoor appeal. The Court should equally be astute to see that repeated applications to review orders are not made. It is the exception not the rule. The circumstances of the failure of the redaction process or rather its inadequacy justified revisiting that decision.

I reviewed all of these authorities in ITS v Noble [2010] EWHC 3275 at paragraphs 90-101 and concluded (as the wording of the paragraph makes clear) the Court has a power for review of an existing order (although it should hardly ever happen but it can happen). Nothing in Tibbles leads me to any different conclusion now.

The Claimants have persuaded me in the light of that failed redaction process that I should revisit that decision.

There is nothing in the case of Tibbles v SIG Plc [2012] 1 WLR 2591 which curtails the ability of the Court in an appropriate case to revoke a previous order. Indeed paragraph 39 of Rix LJ’s judgment in many ways confirms that power but affirms the rarity of a successful invocation of that power. Even in that situation Rix LJ observed that exception is a dangerous and misleading word but affirmed revocation of an order (whether final or otherwise) is something out of the norm. Whilst it might be out of the norm this procedure has existed (for example) in the Insolvency Rules for some considerable time see Mond v Hammond Suddards [2000] Ch 40. It has even extended in my view to final orders see Paragon Finance v Pender [2003] EWHC 2834 paragraph 74.

I go on now to consider the so-called Pergan principle. There is no doubt that in civil proceedings where there might be subsequent criminal proceedings arising out of the same facts the Court can and regularly does ensure that the civil trial proceeds fully and frankly and makes orders protecting the evidence that such potential Defendants to criminal proceedings might give: see the Zambia case for example. Equally a party’s confidential business is regularly protected by the constitution of the confidentiality ring such as happened in this action so far.

Properly read in my view Pergan does nothing more than reaffirm those basic rights. Since the Pergan decision the EC in relation to its decisions has adopted a policy of negotiated redactions. The fundamental failure of that process in the 4 year saga of this decision demonstrates the pitfalls of that route. If the Part 20 Defendants are correct in their analysis this action would remain paralysed for many years pending the finalisation of the redacted Decision. It is not being cynical to suggest that parties who are subject to this claim have an interest in prolonging the agony of the redaction procedure in the EC. That is its way of addressing the procedure. It does not follow in my view that this Court necessarily is to follow blindly the same procedure.

The EC (see above in respect of its letter) is apparently not willing to do anything to curtail the apparently grindingly slow process of agreeing a form of the redacted Decision. Given the large number of conflicting interests I doubt whether or not there will ever be an agreement in this case.

I have already observed as to the illogical stance taken by the Part 20 Defendants. BA claiming against them have the full benefit of the Decision and as regards BA disclosing the Decision to the Claimants they are relatively relaxed about it only wishing to remove the names of the non addressees.

As the Pergan decision makes clear as regards addressees they do not have the same right of protection when contrasted with non addressees against whom no finding has been found.

There is nothing in the Pergan decision in my view which prevents this Court invoking procedures with the same object in mind namely protecting the presumption of innocence and protecting trade secrets and confidentiality. The confidentiality ring in my view coupled with a restraint of the Claimants bringing further proceedings provides ample protection for the reasons that are already set out. No particular secrets have been identified that it would be damaging to disclose to other parties. If it were further restrictions to the confidentiality ring could be entertained.

I am fortified in my view of my ability to devise procedures that are familiar within this jurisdiction that have the same effect as the procedure in the EC by the decision of Pfleiderer AG v Bundeskartellamt [2011] All ER (EC) 979 and the observations of the Advocate General in paragraph 47 as follows:-

“47 However, aside from such self-incriminating statements, alleged injured parties, such as Pfleiderer , should have access to all other pre-existing documents submitted by a leniency applicant in the course of a leniency procedure which would assist those parties in the establishment, for the purposes of a private action for damages, of the existence of an illegal act in breach of Article 101 TFEU, damage to those parties and a causal link between the damage and the breach. The documents in question are not in effect a product of the leniency procedure as they, unlike the self-incriminating corporate statements referred to above, exist independently of that procedure and could, at least in theory, be discovered elsewhere. I can see no cogent reason why access to such documents which are specifically destined and apt to assist in an action for damages should be refused. It would run counter to the fundamental right to an effective remedy if access to such documents could be denied by a national competition authority in circumstances such as those in the main proceedings.”

Although that related to leniency material the same principle is applicable namely access should be had so as to prevent a fundamental right to an effective remedy being denied.

Finally I refer to the Commission opinion in William Morrison Supermarkets Plc v MasterCard Incorporated & Ors [5.5 2014] and in particular paragraphs 14-20 as follows:-

“(14)

It is for the national court on the one hand to appraise the interest of the damage claimant in obtaining access to the relevant documents to prepare its action for damages, in particular in the light of other possibilities it may have, and on the other hand to consider the actual harmful consequences that may result from such access with regard to the legitimate interest of other parties or public interests. In this context, the Court mentioned the need to preserve the effectiveness of anti-infringement policies in the area of competition law as an interest that must be taken into account so as not to deter parties involved in infringements of Articles 101 TFEU and 102 TFEU from cooperating with the competition authorities.

(15)

Turning therefore to how the above principles apply to the present case, the Commission considers that since the notification regime of Regulation No. 17 is no longer in force and pursuant to Article 34 of the successor regime established by Regulation 1/2003, any such notifications have long since ceased to have effect, access to such documents cannot be refused by referring to a possible negative impact on the effectiveness of competition policies.

(16)

As regards other materials voluntarily provided to the Commission in the present case, such as replies to a Statement of Objections, it is for the national courts to assess on a case-by-case basis whether there are overriding reasons for refusing the discovery of such documents. In the Commission’s view, the disclosure of replies to a Statement of Objections is not liable to deter the undertakings under investigation from cooperating with the competition authorities as it is primarily in their own interest to defend themselves comprehensively.

(17)

In order not to jeopardise the investigatory powers of the Commission, national courts are asked to refrain from ordering disclosure where such disclosure could undermine an ongoing investigation concerning a suspected infringement of the EU competition rules. However, in the case at hand, the administrative procedure was closed with the adoption of the decision.

(18)

As to the implications of the confidentiality of some of the material, as the Court will appreciate, it follows from the nature of the investigation in question that the MasterCard I case file contains information from banks, merchants and other third parties who provided evidence and information during the investigation. These documents included a substantial volume of material accepted as business secrets or other confidential information at the time of the investigation. Documents created in the course of the investigation, both by the Commission and the MasterCard Defendants, quote directly such confidential information covered by the Commission’s obligation of professional secrecy. It is important to note that the non-confidential versions of submissions created by third parties (for disclosure to MasterCard during the investigation) are non-confidential vis-à-vis the MasterCard defendants only. For the purposes of the Commission’s investigation, it was unnecessary for third parties to take a position as to whether any information they supplied was confidential vis-à-vis other parties. In particular, in this case merchants that provided information to the Commission might object to sharing that information with the Claimants, who might be their competitors.

(19)

In this context, the fact that the MasterCard Defendants might be satisfied with particular arrangements made, such as a confidentiality ring, would not necessarily satisfy third parties who submitted the information. Having said that, I trust that any disclosure order decided by you will provide a level of protection equivalent to that required by Article 339 TFEU, Article 28 of Regulation (EC) 1/2003 and Article 15(4) of Regulation (EC) 773/200.

(20)

As regards the confidential version of the Decision, the Commission has no objection against such document being disclosed to the claimants provided that adequate protection is given to business secrets and other confidential information, for example through a confidentiality ring or further redactions of the Decision to protect confidential information.”

This in my view explains the EC letter to me wherein they said the process was for me. I reject Mr Beard QC’s submission that the process should be that suggested in Pergan for the reasons that I have already set out above. The redaction process is a hopeless exercise in this case and simply either leads to a potential denial of justice or the redaction of the Decision to a meaningless document.

In my judgment the confidentiality ring with the restrictions on the Claimants as I have set out above not only addresses all of the concerns expressed by the Court in Pergan but also provides more than adequate protection. In addition of course it enables the present dispute to be pursued by all parties on an equal arms basis i.e. all of them as opposed to some of them have the benefit of the Decision. As the action proceeds the confidentiality can be maintained so that there can be no damage caused by the Decision and whatever it might say about any party to this action going in the public domain and affecting that company’s goodwill.

The parties have accepted the Claimants’ understanding of the leniency regime and I accept that parts of the Decision which could be the subject matter of legal professional privilege should be redacted. If there is a dispute over those then I propose to deal with those. I do not of course need a legal assistant to help me to decide those.

For all of the above reasons it is in my view appropriate to revisit my earlier decision and sever the Gordian knot by ordering the un-redacted Decision, minus leniency material and material for which legal professional privilege is claimed, to be disclosed to all parties subject to the confidentiality ring and subject to the restraint on the Claimants that I have set out above.

When I hand this judgment down I would like the parties to have attempted to agree further directions for the progress of this action. It is essential that the action proceeds with expedition and the “relaxed attitude of the EC to its procedures should not be allowed further to delay these proceedings”.