A new Practice Direction, 31C, is to be inserted into the Civil Procedure Rules (CPR) under the 87th update to the CPR to assist with the implementation of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of competition law provisions of the Member States and of the European Union.
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What are the practical implications of this development?
Practical implications arising from this development include that practitioners involved in competition claims, and particularly where the disclosure or inspection of documents from the competition authority are sought, will:
- need to be aware of and comply with these additional provisions set out in this new Practice Direction once it comes into force
- need to be aware of when the Damages Directive comes into force as this will also trigger the coming into force of CPR PD 31C
What does new CPR PD 31C provide?
This new Practice Direction sets out provisions on disclosure and inspection of evidence in relation to competition claims (defined at CPR PD 31C, para 1.1(b)). Directive 2014/104/EU, art 5(3)
It sets out, among other things, how to apply for the disclosure or inspection of ‘relevant evidence’ (defined at CPR PD 31C, para 1.1(e)) and that the court may only grant such an application where it is determined to be proportionate in accordance with the factors set out in article 5(3) of the Damages Directive.
Where the application for disclosure or inspection under CPR PD 31C, para 1 relates to ‘relevant evidence’ that includes evidence which is in the file of the competition authority, additional provisions set out at CPR PD 31C, para 2 apply. These provide, among other things, that:
- the applicant (or respondent if appropriate) must notify the court and the other parties of this fact as soon as practicable and take steps to join the competition authority as a respondent to the application (to the extent they were not already named as a respondent)
- Directive 2014/104/EU, art 5(3)Directive 2014/104/EU, art 6(4)
the ‘proportionality’ test to be applied by the court where the application involves the competition authority must consider the factors set out in article 6(4) of the Damages Directive in addition to those at article 5(3) of that directive
- the application should be supported by evidence that:
- no other person could reasonably provide that evidence
- in the case of competition authority investigation materials, the competition authority has closed the investigation to which those competition authority’s investigation materials relate
- the hearing of an application for the inspection by the court of an alleged cartel leniency statement or settlement submission (defined at CPR PD 31C, para 2.1) must be in private with restricted attendees
- CPR 5.4B and CPR 5.4C (access to court documents by a party and a non-party respectively) do not apply in relation to cartel leniency settlements and settlement submissions. For further guidance on access to documents on the court file, see Practice Note: Public access to court documents and information
Note: for the purposes of CPR PD 31C, the competition authority means:
- the Competition and Markets Authority (CMA)
- the UK sector regulators with concurrent competition powers (including, among others, Ofgem, Ofcom, Ofwat, Financial Conduct Authority (FCA), Payment Systems Regulator (PSR), Office of Rail Regulation (ORR) and the Civil Aviation Authority (CAA)
- the European Commission, and
- national competition authorities of the other EU Member States
When does Practice Direction 31C come into force?
CPR PD 31C is due to come into force ‘on the same day and immediately after the coming into force of the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017’. These Regulations are intended to introduce the small number of changes required in the UK to implement the Damages Directive.
It is understood that Regulation is due to come into force imminently given the deadline for implementing the Damages Directive is 27 December 2016.
Note, however, that under the transitional arrangements, CPR PD 31C will only apply to disclosure or inspection applications made in claims ‘where the first proceedings brought in relation to that claim were brought before the court on or after the in force date of the Practice Direction’.
How will CPR PD 31C interact with the rest of Part 31 of the CPR?
For further guidance on:
- the government’s plan to implement the directive on damages for breaches of competition law, see: Government sets out implementation plan for Directive on damages for breaches of competition law—LNB News 20/12/2016 192 and Ongoing work to implement the EU Damages Directive into the UK
- competition claims in the UK generally, see Practice Note: UK private competition actions
- the Damages Directive, see Practice Note: 2014 EU private damages directive
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