Contents of this Practice Direction

Title	Number
Disclosure and inspection of evidence in relation to a competition claim	Para. 1
Disclosure and inspection of evidence in relation to a competition claim – evidence in the file of the competition authority	Para. 2

Disclosure and inspection of evidence in relation to a competition claim

1.1  In this Practice Direction-

(a) “the 1998 Act” means the Competition Act 1998;

(b) “competition claim” has the same meaning as in paragraph 2(2) of Schedule 8A to the 1998 Act;

(The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), Schedule 4 (‘saving and transitional provision’), Part 6 (‘court and tribunal proceedings relating to competition’) makes transitional provision relating to pre-IP completion day competition infringements. Modifications to paragraph 2(2) of Schedule 8A to the 1998 Act by Part 2 of those Regulations are disapplied in relation to claims described in paragraph 14(2) by paragraph 15 (in conjunction with paragraph 7(3)-(8)) of Schedule 4 to those Regulations.)

(c) Omitted

(d) “reasoned justification” means a statement containing reasonably available facts and evidence sufficient to support the plausibility of the claim for damages to which the relevant evidence relates;

(e) “relevant evidence” means evidence that a person is seeking to have disclosed or is seeking to inspect that relates to a competition claim.

1.2  Where a person seeks disclosure or inspection of relevant evidence, that person must apply in accordance with Part 23.

1.3  The person who has control of the relevant evidence must be named as a respondent to the application and must be served with a copy of the application notice.

1.4 The application must include a description of the evidence that is sought that is as precise and narrow as possible on the basis of the reasoned justification.

1.5  The court may only permit disclosure or inspection that is proportionate.

1.6  In order to determine proportionality, the court must in particular consider—

(a) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence;

(b) the scope and cost of disclosure, especially for any third parties concerned, including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure;

(c) whether the evidence the disclosure of which is sought contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.

1.7  Where this paragraph applies, Part 31 applies to the extent that it is consistent with this paragraph.

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Disclosure and inspection of evidence in relation to a competition claim – evidence in the file of the competition authority

2.1 In this paragraph-

(a) “cartel leniency statement” has the same meaning as in paragraph 4(4) of Schedule 8A to the 1998 Act;

(b) “competition authority” has the same meaning as in paragraph 3(1) of Schedule 8A to the 1998 Act;

(c) “competition authority evidence” means evidence in the file of a competition authority;

(d) “investigation materials” has the same meaning as in paragraph 3(3) of Schedule 8A to the 1998 Act;

(e) “settlement submission” has the same meaning as in paragraph 5(1) of Schedule 8A to the 1998 Act.

2.2 This paragraph applies where the application for disclosure or inspection made under paragraph 1 relates to relevant evidence that includes competition authority evidence.

2.3  This paragraph applies to the competition authority evidence in addition to paragraph 1.

2.4 Where the competition authority would not otherwise be named as a respondent under paragraph 1, the competition authority must be named as a respondent and served with a copy of the application notice.

2.5  If, after the application has been made, the applicant or respondent becomes aware that the application for disclosure or inspection made under paragraph 1 relates to evidence that includes competition authority evidence, the applicant or respondent (as appropriate) must-

(a) notify the court and the other parties of that fact as soon as practicable; and

(b) if the competition authority has not otherwise been named as a respondent-

(i)  apply for the competition authority to be joined as a respondent; and

(ii) serve the competition authority with a copy of the application  for disclosure, within 7 days after the date of the application to the court.

2.6 Where the court receives notification under paragraph 2.5, the court may give such other directions as it considers appropriate.

2.7 In order to determine the proportionality of disclosure or inspection, in addition to the requirements of paragraph 1.6 the court must consider—

(a) whether the request has been formulated specifically with regard to the nature, subject matter or contents of documents submitted to a competition authority or held in the file of that authority, rather than by a non-specific application concerning documents submitted to a competition authority;

(b) whether the party requesting disclosure is doing so in relation to an action for damages before a court;

(c) in a case where—

(i) a competition authority has closed the investigation to which the request for its investigation materials relates; and

(ii) the court is satisfied that no-one other than the competition authority is reasonably able to provide the documents or information,

the need to safeguard the effectiveness of the public enforcement of competition law;

(d) in a case where a competition authority submits written or oral representations to the court, the need to safeguard the effectiveness of the public enforcement of competition law.

2.8 Where the competition authority evidence includes a competition authority’s investigation materials, the application for disclosure or inspection must be supported by evidence that the competition authority has closed the investigation to which those materials relate.

2.9 Where the application is for an order requiring the competition authority to disclose or allow inspection of competition authority evidence, the application for disclosure must be supported by evidence that no other person is reasonably able to provide that evidence.

2.10  Any application under paragraph 4(7) or 5(3) of Schedule 8A to the 1998 Act for the inspection by the court of an alleged cartel leniency statement or settlement submission must be made in accordance with Part 23.

(Paragraph 28 of Schedule 8A to the 1998 Act provides that the court must not make a disclosure order in respect of a settlement submission which has not been withdrawn or a cartel leniency statement, whether or not it has been withdrawn.)

2.11  Where an application is made under paragraph 2.10 and the competition authority or the author of the alleged cartel leniency statement or settlement submission would not otherwise be a party, they must be named as respondents to the application and must be served with a copy of the application notice.

2.12 Copies of the alleged cartel leniency statement or settlement submission and the content of the alleged statements or submissions must not be served on any parties other than the competition authority and the author of the alleged cartel leniency settlement or settlement submission.

(Paragraphs 4(8) and 5(4) of Schedule 8A place restrictions on the courts’ ability to seek assistance to help determine whether information is a cartel leniency statement or whether a document is a settlement submission.)

2.13 Any hearings held in relation to the application under paragraph 2.10 must be in private and may only be attended by-

(a) the competition authority;

(b) the author of the statement or submission in question.

2.14 Rules 5.4B and 5.4C do not apply in relation to cartel leniency settlements and settlement submissions.

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