We were delighted to host the GCR Live: Competition Litigation conference at our London office last week, marking a welcome return to a fully in-person format with a distinguished line-up of expert speakers and panellists – including Kim Dietzel, co-head of Herbert Smith Freehills’ competition litigation practice.
As in previous years, the conference provided an excellent opportunity to explore some of the key current themes in competition litigation. Highlights from the discussions included:
- An insightful keynote address by The Honourable Mr. Justice Marcus Smith (President of the Competition Appeal Tribunal (CAT)): reflecting on the Chinese curse “may you live in interesting times“, Sir Marcus Smith suggested that whilst competition lawyers are certainly currently living in “interesting times”, this should be a source of celebration rather than regret. As society becomes ever more complex and networked, the more important competition law becomes, with the CAT now charting its own course post-Brexit when novel issues arise.
Sir Marcus Smith focussed in particular on three areas where unnecessary procedural complexity has crept in, and suggested some possible solutions:
- Treatment of common issues, where an infringement gives rise to many claims: the difficult combination of commonality and difference in the context of competition law claims – as illustrated by, for example, the application of the pass-on defence – makes it difficult to rely on traditional approaches to dealing with common issues (such as res judicata, use of lead cases, or sampling). The recent Practice Direction on Umbrella Proceedings aims to assist in extracting out common issues and thereby reduce the risk of different tribunals reaching different conclusions on broadly similar facts (as previously seen in the litigation related to multi-lateral interchange fees). He acknowledged that this approach is procedurally cutting-edge and emphasised that the CAT would be grateful for input/feedback as to how the new Practice Direction is working.
- Limits to proper protection of confidential information: whilst recognising the importance of ensuring proper protection of legitimate confidential information, Sir Marcus Smith expressed concerns that redaction and confidentiality regimes have become an excessive “cost centre”, which can also negatively impact the ability of lay clients to properly instruct their legal advisors and complicate proceedings at the trial stage. He suggested that one possible way forward may be to move away from multiple complex tiers of confidentiality rings, and instead to seek to “weaponise” the undertaking not to use disclosed documents for collateral purposes.
- Practical issues relating to disclosure: Sir Marcus Smith identified the disclosure process as another significant cost centre in competition litigation, where efficiently isolating relevant documents can be very difficult. He acknowledged that there is no easy answer, but suggested that options worth further exploration could include: (i) expert-led disclosure (whereby economic experts identify what material they need, and the parties produce it) and/or (ii) reverse disclosure, where the disclosing party makes available a larger-than-usual set of documents which can be repeatedly searched by the receiving party as the proceedings progress.
For further information, please contact:
Kim Dietzel, Partner, Herbert Smith Freehills
Partner, Herbert Smith Freehills
