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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> DSG Retail Ltd & Ors v Mastercard Incorporated & Ors [2015] EWHC 3673 (Ch) (05 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2015/3673.html Cite as: [2015] EWHC 3673 (Ch) |
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CHANCERY DIVISION
7 Rolls Buildings, Fetter Lane London, EC4A 1NL |
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B e f o r e :
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(1) DSG RETAIL LIMITED (2) DSG RETAIL IRELAND LIMITED (3) DIXONS SOUTH EAST EUROPE AEVE (4) LEFDAL ELEKTROMARKET AS (5) ELKJØP NORGE AS (6) ELKJØP NORGE GROSSIST AS (7) DIXONS TRAVEL BV (8) DIXONS RETAIL PLC (9) DSG INTERNATIONAL BELGIUM BVBA (10) ELGIGANTEN A/S (11) GIGANTTI OY (12) ELECTRO WORLD SVERIGE AB (13) ELEGIGANTEN AB (14) ELGIGANTEN GROSSIST AB |
Claimants |
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(1) MASTERCARD INCORPORATED (2) MASTERCARD INTERNATIONAL INCORPORATED (3) MASTERCARD EUROPE SPRL (4) MASTERCARD UK MEMBERS FORUM (In Members' Voluntary Liquidation) (5) MASTERCARD/EUROPAY UK LIMITED |
Defendants |
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1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone Number 020 7067 2900. Fax Number 020 7831 6864.
e-mail: [email protected]
MR. MATTHEW COOK (instructed by Jones Day) appeared for the Defendants
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Crown Copyright ©
MR. JUSTICE BARLING
Introduction
Background
Choice of law
"When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially affects also the market in the Member State of that court."
The scope of the present application
The applicable principles
"The relevant principles on applications under CPR Rule 3.4 (2) to strike out statements of case, and under Rule 24(2)(a)(i) for summary judgment are not controversial. On an application to strike out the question is whether the whole or the material part of a statement of case discloses reasonable grounds for bringing the claim. In relation to a summary judgment, the principles have been summarised in a passage of the judgment of Lewison J in Easyair Ltd v. Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15], which has often been cited and approved, see for example Etherton LJ in A C Ward & Son v. Catlin (Five) Limited [2009] EWCA Civ [24]. For present purposes it is sufficient to identify eight points which are of potential relevance to the present applications.
(1) The court must consider whether the claimants have a 'realistic' as opposed to a 'fanciful' prospect of success, see Swain v. Hillman [2001] 1 ALL ER 91, 92.
(2) A 'realistic' prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products v. Patel [2003] EWCA Civ 472 at [8].
(3) The court must avoid conducting a 'mini-trial', without the benefit of disclosure and oral evidence: Swain v. Hillman (above) at 95.
(4) The court should avoid being drawn into an attempt to resolve conflicts of fact which are normally resolved by a trial process, see Doncaster Pharmaceuticals Group Ltd v. Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661, Mummery LJ at [17].
(5) In reaching its conclusion, the court must take into account not only the evidence actually placed before it on the application for summary judgment, but the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v. Hammond (No. 5) [2001] EWCA Civ 550 at [19].
(6) Some disputes on the law or the construction of a document are suitable for summary determination, since (if it is bad in law) the sooner it is determined the better, see the Easyair case. On the other hand the court should heed the warning of Lord Collins in AK Investment CJSC v. Kyrgyz Mobil Tel Ltd [2001] UKPC 7, [2012] 1 WLR 1804 at [84] that it may not be appropriate to decide difficult questions of law on an interlocutory application where the facts may determine how those legal issues will present themselves for determination and/or the legal issues are in an area that requires detailed argument and mature consideration, see also at [116].
(7) The overall burden of proof remains on the defendant, … to establish, if it can, the negative proposition that the [claimant has] no real prospect of success (in the sense mentioned above) and that there is no other reason for a trial,
see Apvodedo NV v. Collins [2008] EWHC 775 (Ch), Henderson J at [32].
(8) So far as Part 24.2(b) is concerned, there will be a compelling reason for trial where 'there are circumstances that ought to be investigated', see: Miles v. Bull [1969] 1 QB 258 at 266A. In that case Megarry J was satisfied that there were grounds for scrutinising what appeared on its face to be a legitimate transaction; see also Global Marine Drillships Limited v. Landmark Solicitors LLP [2011] EWHC 2685 (Ch), Henderson J at [55]-[56]."
"The court should still consider very carefully before accepting an invitation to deal with single issues in cases where there will need to be a full trial on liability, involving evidence and cross-examination in any event, or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action ... removing road blocks to compromise is, of course, one consideration but no more than that. Moreover, it does not follow from Lewison J's seventh principle that difficult points of law, particularly those in developing areas, should be grappled with on summary applications ... such questions are better decided against actual rather than assumed facts."
The issue
"the acquisition of Data Cash will create a long-term growth platform providing the company with the ability to drive the growth of the e-commerce category in concert with MasterCard's acquiring customers, thus increasing the use of MasterCard branded credit and pre-paid products as well as MasterCard and Maestro branded debit products for online purchases, particularly in Europe and other markets."
"Undertaking"
"the simple fact that the share capital of two separate commercial companies is held by the same person or family is insufficient in itself to establish that those two companies are an economic unit ... "
(See Case C-196/99 P Siderurgica Aristrain Madrid SL v Commission [2003] ECR I-11005, at paragraph 99 of the judgment).
"Decisions by associations of undertakings"
"242. It should also be borne in mind that the definitions of 'agreement', 'decisions by associations of undertakings' and 'concerted practice' are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves……..
243. With regard specifically to the definition of 'decisions by associations of undertakings', as Advocate General Leger pointed out in his opinion in Wouters v Algemene [etc] [2002] ECR 1-1577 ... this seeks to prevent undertakings from being able to evade the rules on competition on account simply of the form in which they coordinate their conduct on the market. To ensure that this principle is effective, Article 81(1) EC covers not only direct methods of coordinating conduct between undertakings (agreements and concerted practices) but also institutionalised forms of cooperation, that is to say, situations in which economic operators act through a collective structure or a common body."
The present case
"The MCI defendants do not admit that they remained representatives of an association of undertakings after 19th December 2007, however, if they did by June 2009, the MCI defendants had withdrawn all the specific authorities previously granted to the European Board (at the same time re-named "European Advisory Board"). Since the power of the European Board to determine all issues other than interchange was a key feature upon which the Commission relied in concluding that MasterCard remained an association of undertakings after the IPO until December 2007, it follows that MasterCard ceased to be an association of undertakings after June 2009. Alternatively, MasterCard ceased to be an association of undertakings in June 2010 when Class M directors were abolished. In the premises, Article 101 ceased to apply to decisions taken by the MCI defendants in relation to interchange after 19th December 2007 or alternatively June 2009 or June 2010."
Conclusions
"arguable that where two corporate entities are part of an 'undertaking' (call it 'undertaking A') and one of those entities has entered into an infringing agreement with other independent 'undertakings', then if another corporate entity which is part of undertaking A then implements that infringing agreement, it is also infringing Article 81."
"It is by no means obvious, even in an Article 101 context, that a subsidiary should be liable for what a parent does, let alone for what another subsidiary does. Nor does the Provimi point sit comfortably with the apparent practice of the Commission, when it exercises its power to fine, to single out those who are primarily responsible or their parent entities rather than to impose a fine on all the entities of the relevant undertaking. If, moreover, liability can extend to any subsidiary which is part of an undertaking, would such liability accrue to a subsidiary which did not deal in rubber at all?"
"It is clear that, save in a case where the parent company exercises 'a decisive influence' (in the language of EU jurisprudence) over its subsidiary or the same is true of a non-parent member of the group over another member, there is no scope for imputation of knowledge, intent or unlawful conduct."