republic of ireland - a&l goodbody antitrust... · republic of ireland. a&l goodbody . dr...

EUROPEAN LAWYER REFERENCE SERIES 215

Republic of Ireland

Republic of IrelandA&L Goodbody Dr Vincent J. G. Power

LEGAL BASIS FOR BRINGING PRIVATE ANTITRUST LITIGATION ACTIONS1. What types of actions may be brought in the context of private antitrust litigation?1.1 Is it possible to bring:(a) ‘stand-alone’actions(ie,withoutapriorfindingofinfringementof any applicable antitrust laws by a national court or competent authority)Yes it is possible to bring stand-alone actions in Ireland without the need for a prior finding of infringement of any applicable competition law by a national court or competent authority. Indeed, the vast majority of private actions in Ireland do not follow on from any procedure before the Competition Authority (‘Authority’). Aggrieved persons have a choice of making a complaint to the Authority or instituting proceedings in the courts and some choose, in appropriate cases, to go directly to the courts rather than complaining to the Authority.

The advantages for an aggrieved person to institute court proceedings include: the ability to control the case in terms of having the ability to start, pause or stop the proceedings; the ability to obtain damages, exemplary damages, injunctions and/or declarations if the court finds in favour of the aggrieved person (no such remedies are available from the Authority); the greater threat in the minds of some defendants posed by court proceedings than a complaint to the Authority; the possibility of recovering costs from court proceedings (as it is not possible to recover costs in respect of Authority proceedings); and the effect on the defendant that the matters would be ventilated in public.

The disadvantages for an aggrieved person of instituting court proceedings include: the higher costs; the risk of having to pay the other side’s costs were the litigation to fail; delays in the court system (but the Authority may not be much quicker and could simply be a prelude to the court proceedings which would follow the Authority’s procedures anyway); and the difficulties in obtaining proof in a private court action (the Authority has various investigatory powers available to it including so-called ‘dawn raid’ powers in certain cases).

(b) ‘follow-on’actions(ie,withpriorfindingofinfringementofanyapplicable antitrust laws by a national court or competent authority)? Yes, it is possible to bring follow-on actions with a prior finding of an

Republic of Ireland

216 EUROPEAN LAWYER REFERENCE SERIES

infringement of any applicable competition laws by a national court or competent authority. However, the plaintiff would have to prove an infringement of competition law and that the plaintiff suffered loss before any damages or exemplary damages would be awarded by the court. If a person believed that they suffered loss or damage by virtue of anti-competitive activity then the person would have to institute proceedings in the courts to recover damages (because the Authority is not entitled to award damages or compensation) and would, in any event, have to prove that the plaintiff suffered loss. In practice, the loss to the aggrieved person would have to be sufficient to render the litigation worthwhile.

Section 8 of the Competition (Amendment) Act 2012 (the ‘2012 Act’) provides that where in proceedings under Part 2 of the Competition Act 2002 (the ‘2002 Act’), a court finds, as part of a final decision, that an undertaking contravened section 4 or 5 of the 2002 Act, or Article 101 or 102 of the Treaty on the Functioning of the European Union (‘TFEU’), then, for the purposes of any subsequent proceedings (other than proceedings for an offence) under that Part, the finding shall be res judicata (whether or not the parties to the said subsequent proceedings are the same as the parties to the first proceedings). In this context, the term ‘finding’ includes a conviction for an offence, whether or not that conviction follows from a plea of guilty by an accused person.

1.2 Are such stand-alone and/or follow-on actions available for both bilateral antitrust infringements (eg, a cartel), as well as unilateral antitrust infringements (eg, an abuse of a position of dominance)? Yes, both stand-alone and follow-on actions may be taken in respect of multilateral competition infringements (eg, cartels) as well as unilateral infringements (eg, abuses of dominance). This is explicitly recognised by section 14 of the 2002 Act. Claims of multilateral infringements would typically fall under section 14 of the 2002 Act but relate to breaches of section 4 of the 2002 Act which is the Irish equivalent of Article 101 of the TFEU. Claims of unilateral infringements would fall under Section 14 of the 2002 Act but relate to breaches of section 5 of the 2002 Act which is the Irish equivalent of Article 102 of the TFEU. 2. What is the legal basis for bringing any such stand-alone and/or follow-on actions? In respect of alleged breaches of Irish statutory competition law (ie, the Competition Acts 2002-2012 (the ‘Competition Acts’)), the legal basis is Section 14 of the 2002 Act.

In respect of alleged breaches of the Irish common law relating to competition (which would only arise in so far as legislation did not apply) then the legal basis would be in the common law.

Interestingly, Irish law (specifically, section 14 of the 2002 Act) provides an explicit legal basis for instituting proceedings before the Irish courts in respect of alleged breaches of the provisions European Union (‘EU’) competition law relating to anti-competitive arrangements (ie, Article 101 of

Republic of Ireland


the TFEU) and abuse of dominance (ie, Article 102 of the TFEU).In respect of alleged breaches of EU competition law, Articles 101 and 102

of the TFEU each have direct effect and therefore claims may be instituted in the Irish courts on the basis of such provisions as well.

2.1 Where the legal basis is legislative, please provide the full title of such legislation currently in force.Section 14 of the Competition Act 2002.

2.2 In the event that the legal basis is non-legislative (eg, theevolutionofcaselaw),pleasebrieflyoutlineanykeycasesunderpinning this legal basis.The vast majority of claims would be based in legislation.

In respect of the claims based on the common law, there is a line of case law with the leading cases including McEllistrim v Ballymacelligott Co-operative Agricultural and Dairy Society Ltd [1919] A.C. 548 and Nordenfelt v The Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] A.C. 535.

In respect of the breaches of EU law and the direct effect of Articles 101 and 102, the principal case would be Case 127/73 BRT v SABAM [1974] E.C.R. 51, [1974] 2 C.M.L.R. 238 which would confirm that a claim may be made before an Irish court for an alleged breach of either or both of those articles.

3. Are such actions adversarial or inquisitorial?Such actions are always adversarial. This is in line with the approach by the Irish courts to litigation generally.

PARTIES TO AN ACTION4. What must be demonstrated so as to commence a stand-alone and/or follow-on action? In respect of an action under section 14 of the 2002 Act, three main elements must be demonstrated. First, the plaintiff must be a person (whether legal or natural) having the capacity to sue in the Irish courts. This is no different than in other litigation where the plaintiff has to be either a natural or legal person with the capacity to institute proceedings. Secondly, the plaintiff must ordinarily be an ‘aggrieved’ person. This term is used in section 14 of the 2002 Act but is not defined in the legislation. It is understood to mean that the person has been damaged or suffered loss in some way by the alleged breach and is not a complete stranger or uninjured person to the alleged breach of competition law. Apart from aggrieved persons, the Authority or the Commission for Communication Regulation (‘ComReg’) each has the ability to take actions (both the Authority and ComReg are each described as a ‘competent authority’ in the 2002 Act)). Thirdly, a breach of either section 4 of the 2002 Act (which relates to anti-competitive arrangements) and/or section 5 of the 2002 Act (which relates to abuse of dominance) must be demonstrated by the plaintiff; so in terms of commencing an action, the action should relate to one or both of those provisions or their TFEU equivalents.

Republic of Ireland


5. Who has standing to bring an action in respect of:(a) stand-alone actionsSection 14 of the 2002 Act provides that: (a) ‘aggrieved persons’ are free to bring stand-alone actions; such persons may be either natural or legal persons but they do not have to be undertakings (however, they have to prove that they are ‘aggrieved’ by the alleged conduct); and (b) a competent authority is free to bring such an action. Competent authorities do not have the ability to recover damages or exemplary damages but may seek declaration and/or injunctions.

(b) follow-on actions? Aggrieved persons are free to bring stand-alone actions. Such persons may be either natural or legal persons. They do not have to be undertakings. However, they have to prove that they are ‘aggrieved’ by the alleged conduct. Competent authorities do not have the ability to recover damages or exemplary damages but may seek declarations and/or injunctions.

5.1 Are parties to an infringing agreement able to bring actions?Yes, the parties to an infringing agreement are able to bring actions. There is nothing in the Competition Acts to prohibit them doing so. They could choose to do so for various reasons, including, to demonstrate that the arrangement is contrary to competition law and therefore void/unenforceable (before instituting such a case, a plaintiff ought to consider whether it is incriminating itself). It is likely that the Irish courts would follow the approach of the Court of Justice of the European Union (‘CJEU’) in Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001] ECR I-06297 in dealing with the matter but there could be some initial scepticism by Irish judges in regard to such claims.

5.2 Are third parties able to bring actions? In this context, are indirect purchasers able to bring actions?Yes, third parties are able to bring actions provided they can demonstrate that they are aggrieved persons. In this context, indirect purchasers are able to bring actions and the threshold for them to bring such actions would be low. The competent authorities are also able to bring proceedings despite being third parties but they would ordinarily not be bringing proceedings for damages or exemplary damages.

5.3 Is it possible to bring actions on behalf of multiple claimants (eg, collectiveactions)?Ifso,pleaseexplainbrieflyhowsuchactionsmaybe brought, insofar as: It is possible, albeit in limited circumstances, for a multiple claimant action to be instituted before the Irish courts. Order 15, rule 9 of the Irish Rules of the Superior Courts provides: ‘Where there are numerous persons having the same interest in one cause of action or matter, or more of such persons may sue or be sued, or may be authorised by the court to defend, in such cause or matter, or for the benefit, of all persons so interested.’

Republic of Ireland


However, Ireland does not have a class action regime or culture like that of the United States of America.

(a) are claimants required to opt in or opt out of any collective action?Ireland operates an opt-in regime. This is clear from the Order 15, rule 9 of the Rules of the Superior Courts and was confirmed in Madigan v Attorney General [1986] I.L.R.M. 136 at 148 by O’Hanlon J.

(b) doessuchacollectiveactionrequireanyformofcertification?Ireland does not operate a class action regime. However, the court will want to be satisfied that the persons presenting the case do truly represent all of the purported plaintiffs.

(c) ifcertificationisrequired,whatistherequisitetesttobemetforinclusion?Not applicable.

6. Is it possible to bring a stand-alone and/or follow-on action against a company and/or an individual (eg, a director) domiciled within the jurisdiction? It is possible to bring a stand-alone and/or follow-on action against a company and/or an individual (eg, a director) domiciled within the jurisdiction. This is subject to the Irish courts having jurisdiction (eg, under the EU’s Regulation 44/2001) and the defendant being an undertaking or certain other persons. In specific terms, section 14(1) of the 2002 Act provides: ‘[a]ny person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse which is prohibited under section 4 or 5, or by Article 101 or 102 of the [TFEU], shall have a right of action under this subsection for relief against either or both of the following, namely— (a) any undertaking which is or has at any material time been a party to such an agreement, decision or concerted practice or has done any act that constituted such an abuse, (b) any director, manager or other officer of such an undertaking, or a person who purported to act in any such capacity, who authorised or consented to, as the case may be, the entry by the undertaking into, or the implementation by it of, the agreement or decision, the engaging by it in the concerted practice or the doing by it of the act that constituted the abuse.’

6.1 Is it possible to bring a stand-alone and/or follow-on action against a company and/or an individual domiciled outside of the jurisdiction (eg, against a parent company domiciled outside of the jurisdiction which has a subsidiary within the jurisdiction)?It would be possible to bring a stand-alone and/or follow-on action against a company and/or an individual domiciled outside of the jurisdiction (eg, against a parent company domiciled outside of the jurisdiction which has a subsidiary within the jurisdiction) provided the Irish courts had jurisdiction either under the Judgments Regulation (Regulation 44/2001) or Order 11 of

Republic of Ireland


the Rules of the Superior Courts (where the Regulation did not apply).

6.2 If so, in bringing an action against a party domiciled outside of the jurisdiction, what consideration (if any) must be given to jurisdictional issues?First, jurisdiction would have to be established so the EU’s Regulation 44/2001 or Order 11 of the Rules of the Superior Courts (where the Regulation did not apply) would be directly relevant. Secondly, a plaintiff may be concerned about the risk of succeeding but not being able to obtain redress and costs from a party domiciled outside the State.

LIMITATION PERIODS AND FORUM7. When must an action be commenced? What are the relevant limitation periods within the jurisdiction in respect of stand-alone and/or follow-on actions? The action must be commenced within six years from the accrual of the cause of action. This is pursuant to the Statute of Limitations 1957 (which is a statute of the Irish parliament which regulates limitation periods in the absence of specific statutory provisions deciding otherwise). If a cartel was on-going then it would be possible to sue (ie, it would be within the Statute of Limitations) notwithstanding that the cartel commenced more than six years before the action was begun.

7.1 When do these limitation periods start to run?The limitation period commences from the accrual of the cause of action. For example, if the cartel was formed nine years ago but ended five years ago then because there was an effect within the six year time frame, it is likely that the action would be within time but each case will turn on its facts.

7.2 Are there any circumstances within which these relevant limitation periods may be extended?There are circumstances where a court may decide to extend the relevant limitation periods such as where there is disability, acknowledgment, part payment, fraud and mistake. This would be decided on a case by case basis. It is quite possible that a case involving a cartel may be one where a court will exercise its discretion because all the circumstances would not be known to the plaintiff. However, the courts would be intolerant of unreasonable delays (eg, Framus Ltd v CRH Plc [2012] IEHC 316 (High Court, Cooke J., 19 July 2012)).

8. Wheremustanactionbecommenced?Aretherespecificcourtsand/or tribunals before which stand-alone and/or follow-on actions must be brought?The action must be commenced in a court (it is not possible to commence an action before the Authority). In practical terms, such actions are commenced in the High Court with the exception being where actions (ie, those relating to anti-competitive arrangements or abuse of dominance) are commenced in the Circuit Court (because the claim is for an amount lower

Republic of Ireland


than €38,092.14). The High Court is a court of full jurisdiction. The Circuit Court may, hear smaller claims. If a plaintiff in the High Court recovers less than €38,092.14 then the plaintiff would only succeed in recovering costs appropriate to the relevant court (eg, the Circuit Court).

8.1 Where actions may be brought in different courts and/or tribunals within the jurisdiction, what are the comparative advantages and advantages associated with bringing actions before each court and/or tribunal?The advantages of an action being commenced in the Circuit Court are that the costs involved are usually lower and there is a shorter waiting list before the action is heard. The downsides of the use of the Circuit Court are that competition law actions are less common in the Circuit Court than they would be in the High Court and therefore Circuit Court judges would be less familiar with competition law issues than some High Court judges would be (eg, Ballina Mineral Water Company v Murphy Brewery Ireland where the judgment of the Circuit Court was overturned entirely on appeal to the High Court (Unreported, High Court, Kearns J., 31 May 2002)). Equally, appeals from the Circuit Court to the High Court would be easier than appeals from the High Court to Supreme Court so success in the Circuit Court may well be called in question quite quickly because of an appeal to the High Court

STANDARD OF PROOF AND LIABILITY9. What is the standard of proof within the jurisdiction?In civil litigation in Ireland, the standard of proof is described as ‘on the balance of probabilities’ (see Masterfoods Ltd v HB Ice Cream Ltd and HB Ice Cream Ltd v Masterfoods Ltd [1993] I.L.R.M. 145 at 183, Keane J., High Court; Chanelle Veterinary Ltd v Pfizer (Ireland) Ltd (t/a Pfizer Animal Health) and Pfizer Animal Health S.A. [1999] 1 I.R. 365 at 391, O’Sullivan J., High Court; Meridian Communications Ltd and Cellular Three Ltd v Eircell Ltd [2002] 1 I.R. 17, O’Higgins J., High Court). This means that, on balance, while there could still be a reasonable doubt, one version of events is marginally more credible that the other version of events. This is lower than the standard of proof used in criminal cases which is ‘beyond reasonable doubt’.

9.1 Who bears the burden of proof within the jurisdiction?In competition litigation, the burden of proof lies with the plaintiff/aggrieved person.

9.2 Do any rebuttable presumptions exist which serve to shift the burden of proof? For example, is there a rebuttable presumption of loss in respect of antitrust breaches resulting from cartels?Yes, there are a number of rebuttable presumptions relating to evidence (eg, where a document appears to have been produced by a person then it shall be presumed to have been created by that person until that presumption is rebutted). These presumptions are statutory-based and are designed to facilitate proof.

Republic of Ireland


10. Is liability on a ‘joint and several’ basis?Liability is apportioned by the Civil Justice Act 1961 on a just and equitable basis. It has regard to fault. Solvent defendants may have to bear the liability of insolvent defendants.

10.1 In the event that liability is joint and several, is a defendant abletoseektorecoveranyresultantliabilityarisingfromotherdefendants and/or any third parties not party to the action in question?Forexample,isacompanypermittedtoseektorecoverresultant liabilities from individuals within that company (eg, company directors)?This has not yet been decided in Ireland in relation to competition matters.

COSTS AND TIMING11. What are the recent trends in relation to the costs associated with bringing a stand-alone and/or follow-on action before the relevant courts and/or tribunals within the jurisdiction?Typically, costs follow the event which means that if a plaintiff succeeds then it is the plaintiff who typically succeeds in obtaining its costs from the defendant but if the plaintiff loses then the defendants typically recovers its costs from the plaintiff. However, sometimes judges have been known to invite the parties to negotiate the apportionment of costs where there is an imbalance of power and resources between the parties.

12. What is the applicable principle with regard to the apportionment of the costs of the action? Is the unsuccessful party required to bear the costs of the claimant or defendant?The usual rule is that the unsuccessful party is required to bear the costs of the successful party. However, the court may intervene where it believes that there might be some injustice or undesirable outcome.

12.1 Are the parties to an action able to insure against the apparent costsriskassociatedwithlitigatingtheaction?Insurance to cover the costs of private antitrust litigation costs is not readily available but if it is available, the premium required would be very expensive.

12.2 Is a defendant able to apply for an order for security of costs inrespectofastand-aloneand/orfollow-onaction,soastoseektoensure that the claimant is able to meet the defendant’s costs? In appropriate cases, it may be possible for a defendant to apply for an order for security of costs in respect of a stand-alone and/or follow-on action, so as to seek to ensure that the claimant is able to meet the defendant’s costs. For example, in Goode Concrete v CRH Plc [2012] I.E.H.C. 198 (High Court, Cooke J., 15 May 2012), the High Court fixed security for costs to be paid by plaintiff as with different amounts for different defendants.

Republic of Ireland


12.3 If so, in what circumstances have the relevant courts and/or tribunals been prepared to grant an order for security of costs? The court is likely to make an order for security of costs if the court has a concern that the plaintiff may not be able to meet the costs of the defendant if the action fails. In Goode Concrete v CRH Plc & Ors ([2012] I.E.H.C. 198, High Court, Cooke J., 15 May 2012), the court indicated that it would be willing to make orders on a phased basis having regard to each stage rather than making an overall security for costs order which could be unfair but also involve making predictions about events in the future which could not be done at this time (eg, the costs could be very unclear until after discovery has been obtained).

12.4 What is the current trend, if any, in relation to the order of security of costs in respect of private antitrust litigation within the jurisdiction?There is not sufficient evidence to indicate a trend in relation to the order of security of costs in respect of private antitrust litigation within the jurisdiction to be categorical on every issue. However, there are some trends. Competition cases are now typically litigated on a modular or issue basis and so security for costs is often addressed on that basis (ie, costs are secured for a particular stage rather than on a global basis). Depending on the circumstances, costs are typically secured either for 30 per cent of the likely costs or for all the costs but each case will be decided on its merits.

13. Can a third party fund the costs of bringing a stand-alone and/or follow-on action within the jurisdiction? In the vast majority of situations, the costs of litigation are funded by the parties with the successful party usually being able to recover costs from the successful party’s costs. In Ireland, there is no legal basis for third-party funding. There has been a view that third party funding is contrary to the common law principles of champerty and maintenance. These principles prohibit the provision of assistance to a party to litigation by a person who has neither an interest in the litigation, nor any legally valid justification for participating in the litigation. However, there are circumstances where it is possible that a third party may fund the costs of bringing a stand-alone and/or follow-on action.

14. Are parties able to engage legal representation on a contingency fee basis? (ie, in the event that the party is unsuccessful, its legal representative waives its fees)?Irish lawyers are not permitted to act on a contingency fee basis in that they may not charge on the basis of recovering a percentage or portion of the damages/exemplary damages awarded by the court. This does not prevent, however, a lawyer agreeing to a premium/bonus if the case is successful or a reduced fee if the case is not successful.

Republic of Ireland


15. What is the current trend, if any, in relation to the average period of time from commencing an action to any subsequent judgment? Please provide examples of time periods applicable in recent cases, including both single party and collective actions.There is not sufficient practice to establish an accurate trend but typically cases would take a number of years with a time span of two to three years being not unexpected.

15.1 Whatfactorsarelikelytoincreasetheperiodoftimefromcommencing an action to subsequent judgment?Various factors may add to the delay in a case including such factors as multiple parties, complex facts, complex evidence, the need for expert evidence (eg, delays caused by accountants and experts having to prepare reports).

15.2 Howdothecourtsand/ortribunalsseektomanagethesefactors to ensure the timely progression of an action?Helpfully, the judge managing the Competition List in the Irish High Court tends to operate a modular approach to many competition cases which has the advantage that cases would not progress too far if they were doomed to failure at an earlier stage.

15.3 Where relevant, please cross-refer to question 18 below ‘Can adefendantseektodisposeofaclaimpriortofulltrial?’withregardtotimeperiodsapplicableinrespectofstrike-outand/orsummaryjudgment.Yes, it is possible for a defendant to request the court to strike out a claim on the basis that the case has been delayed to such an extent that it would be unjust to proceed (see paragraph 7.2 above).

PRE-TRIAL APPLICATIONS16. Where statements of case are lodged with the relevant court and/ortribunal,isitpossibleforthirdpartiestoseektoobtaincopiesof the same? If so, is it possible to apply to prevent such statements of case being sought by third parties?While there is no public register on which such documents are filed, such documents are usually made available, upon request, when the case is being heard on the basis of justice being administered in public.

17. Can a claimant apply for interim measures in respect of a stand-alone and/or follow-on action (eg, is it possible to obtain injunctive relief in respect of an alleged antitrust infringement prior to a full trial)? Yes and there is a statutory basis to do so (see section 14 of the 2002 Act).

17.1 If so, in what circumstances have the relevant courts and/or tribunals been prepared to grant interim relief? The High Court has been willing to grant injunctions where the merits of

Republic of Ireland


case requires it. The court would apply the usual test for injunctions so, for example, if an interlocutory injunction were sought then the tests would be whether: (a) is there a ‘serious’ question to be tried?; (b) are damages an adequate remedy?; and (c) does the balance of convenience fall in favour of granting the

injunction?

17.2 What is the current trend, if any, in relation to the grant of interim relief in respect of private antitrust litigation within the jurisdiction?The High Court has been willing to grant interim relief (eg, injunctions) in respect of private antitrust litigation when the case justifies it.

18. Canadefendantapplyeithertostrikeoutastand-aloneand/orfollow-on action, or to obtain summary judgment in respect of such an action, so as to dispose of the action brought against it within the jurisdiction prior to a full trial? Yes.

18.1 If so, in what circumstances have the relevant courts and/ortribunalsbeenpreparedeithertostrikeoutanaction,ortogivesummary judgment in favour of the defendant? It is likely that if the court believes there is no arguable case or there has been undue delay then the case may be struck out.

18.2 Whatisthecurrenttrend,ifany,inrelationtothestrike-outand/or summary judgment in respect of private antitrust litigation within the jurisdiction? There have not been many cases but it is likely that the courts would strike out cases where there is no arguable case or there has been unreasonable delay.

18.3 Can the parties agree/the court/tribunal order the hearing of a preliminary issue? If so, on what basis can one be agreed/ordered.Yes. If it is desirable to try a preliminary issue before proceeding to hear the main issue then the court may do so. For example, in the Deane v Voluntary Health Insurance litigation, the preliminary issue of whether the defendant was an undertaking was heard as a preliminary issue before the High Court and there was an appeal to the Supreme Court from the High Court’s finding before the main issue was determined (see [1992] 2 I.R. 219). More recently, the High Court has taken a modular approach to competition litigation generally.

19. Canadefendantseektostayaclaimunderanycircumstances?The court would decide whether it would be just and equitable to grant such a stay.

Republic of Ireland


19.1 Where a decision of the competition authority is under appeal, isthedefendantabletoseekastayofproceedingswithinthejurisdiction pending the outcome of that appeal? Yes, if the court believed that it was just and equitable to do so.

19.2 Isthereanyotherbasisuponwhichadefendantmayseektostay proceedings?Not applicable.

EVIDENCE AND LEGAL PRIVILEGE20. Is there a procedure for discovery? Yes.

20.1 What documents fall to be disclosed (a) pre-trial; and (b) during trial?Discovery is primarily pre-trial in Ireland.

20.2 In this context, is it possible for a claimant to obtain:(a) copiesofconfidentialversionsofthedecisionsofcompetitionauthorities? This issue has not been considered extensively by the Irish courts. If a defendant were to have a confidential version of an Authority determination or decision (and it may do so because it would have been supplied the full document by the Authority to enquire of it any views which it may have on business secrets) then a plaintiff might seek to have access to the confidential version through discovery. This would be very unusual. It is likely that the Authority would seek to resist supplying copies of its confidential documents in any third party discovery application but whether the Authority would succeed in refusing access is not clear-cut and would depend on the circumstances of the case.

(b) copies of leniency materials prepared and submitted by the defendant to competition authorities?While this issue has not been considered at length to date in Ireland, it is far from clear that plaintiffs would be able to obtain such materials prepared and submitted by the defendant to the Authority, the Garda Siochana and the Director of Public Prosecutions (DPP). The public authorities would be likely to argue to the courts that the Cartel Immunity Programme would be damaged if third parties could obtain such materials. It may well be the case that some of the materials (or evidence related to the materials) would come into the public domain by being adduced in evidence at any criminal trial which preceded the civil litigation.

(c) any other documents or materials not in the possession or control of the defendant (eg, the index to competition authority case file)?While this issue has not been considered extensively to date in Ireland, it is

Republic of Ireland


far from clear that plaintiffs would be able to obtain such materials prepared and submitted by the defendant to the Authority, the Garda Siochana and the DPP. The public authorities would be likely to argue to the courts that their Cartel Immunity Programme would be damaged if third parties could obtain leniency materials.

20.3 If so, how might such documents and/or materials be obtained pre-trial and/or during the trial (eg, under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents; under Section 1782 of Title 28 of the U.S. Code; or the equivalent national rules on public access)? If materials were held by an agency (ie, a ‘public body’) which is subject to the Freedom of Information Acts 1997-2003 then it is possible that a third party may apply to the public body for access to the information. Whether the applicant would succeed would depend on the circumstances. There are various grounds under, for example, section 23 of the Freedom of Information Act 1997 which could prevent disclosure of the record.

21. Is a defendant able to oppose the provision to the claimant of any documents not in the defendant’s possession or control (eg, confidentialversionsofthedecisionsofcompetitionauthorities,or leniency materials submitted by the defendant to competition authorities)?In essence, yes the defendant could demonstrate that the documents should not be disclosed or discovered then the defendant would succeed. If the defendant was making a case against disclosure under the Freedom of Information Acts then the defendant would probably rely on, for example, section 23(1) of the 1997 Act which allows for a refusal on the basis that disclosure could ‘prejudice or impair’ (i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid, (ii) the enforcement of, compliance with or administration of any law, (iii) …, (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal….’.

21.1 If so, how would such opposition be made? If the defendant was objecting to disclosure under the Freedom of Information Acts then the defendant would object to the relevant public body disclosing the document, using the grounds set out in those Acts, and then, if that objection was not successful, appeal to the Information Commissioner under section 34 of the 1997 Act and, if that did not succeed, appeal to the High Court under section 42 of the 1997 Act.

22. Are parties able to withhold any documents from inspection in reliance upon the application of legal privilege? If so, in what circumstances would legal privilege be applicable?Yes. The Authority recognises in-house and external legal professional privilege.

Republic of Ireland


The courts typically only recognise privilege in contemplation of litigation.

ALTERNATIVE DISPUTE RESOLUTION23. Isitpossibleforthepartiestoseektoresolvetheactionbymeans of alternative dispute resolution?Yes. Indeed, Ireland encourages alternative dispute resolution (ADR). So parties may seek to use methods such as conciliation, mediation and arbitration. They may also be circumstances where the courts will expect that the parties have at least tried ADR before litigating.

23.1 Are the parties required to engage in alternative dispute resolution prior to trial? If so, is there an obligation to engage in alternative dispute resolution in good faith? Even though the parties may not be obliged in law to engage in ADR, they will tend to do so because it will help them to look reasonable and responsible before a judge who may eventually hear the case.

23.2 Are there any implications for refusing to engage in alternative dispute resolution?If it emerges that one or all the parties refused to engage in ADR then it is likely that a trial judge would, all other things being equal, see the unco-operative party as being unreasonable.

23.3 What are the tactical advantages and/or disadvantages associated with engaging in alternative dispute resolution?ADR may mean, for example, that the matter could be settled earlier, cheaper and more confidentially than it might be in court. The disadvantages include the fact that the parties’ evidence would not be tested as forensically as it would be in a trial setting.

SETTLEMENT OR DISCONTINUANCE OF AN ACTION24. What are the tactical advantages and/or disadvantages associatedwithmakinganofferofsettlement?If the award of damages by the court is less than the amount lodged as part of the settlement (and the judge is not told the amount) then the successful plaintiff is usually limited in the level of damages which it can recover.

25. Is permission required from the relevant court and/or tribunal to settle any action prior to or during trial?No, in competition law matters, the permission of the court would not usually be required before settling an action and, similarly, no consent is required from the Authority (eg, Murphy Brewery Ireland v Competition Authority, settled proceedings before the High Court).

25.1 What are the cost implications, if any, of settling any action prior to or during trial?Settlement before action or during the trial would ordinarily reduce costs.

Republic of Ireland


25.2 Doestherelevantcourtand/ortribunalremainabletomakeanyorder following such settlement?Typically, no, the relevant court and/or tribunal do not remain able to make any order following a settlement between the parties because the court is now without any function in the matter. It is possible, but very rare that the Authority might still decide to investigate the matter (or similar matters) if there had been a settlement between the parties but not involving the Authority.

26. Is permission required from the court and/or tribunal for the claimant to discontinue any action without settlement prior to or during trial?Typically, no and the court may not insist on the case proceeding if the parties choose not to pursue it.

26.1 What are the cost implications, if any, of discontinuing any action prior to or during trial?Discontinuing the case would reduce the costs. A plaintiff might well include in its letter before action a statement that it will hold the defendant liable for costs but whether it would succeed or not would depend on the circumstances.

26.2 Doestherelevantcourtand/ortribunalremainabletomakeanyorder following such discontinuance?Typically, no. For example, under Irish law, even if a trial has been heard and a judge has prepared a judgment, if the parties settle the case before the judgment is delivered, no judgment will be delivered because the court has no further function.

PROCEEDINGS AT TRIAL27. Are private litigation actions heard by a jury?Private civil litigation actions are not heard by a jury. Instead, they are heard by a judge alone.

28. Howisconfidentialinformationprotectedduringthecourseofproceedings?While, as a general rule, justice must be administered in public (in accordance with the Irish Constitution), steps could be taken in court to ensure that confidential information is not heard or reported. For example, data could be presented in writing to the judge, the witness and various parties but not read out in open court.

28.1 Will the relevant courts and/or tribunals grant orders to restrict confidentialinformationtoa‘confidentialityring’,suchthatnopublicreference is made to this information? While there has been limited litigation in this context, it is very likely that the Irish courts would be willing to take steps (eg, a confidentiality ring) to ensure that confidential information is not disclosed inappropriately.

Republic of Ireland


29. Is evidence from criminal proceedings admissible in a private antitrust action? Where a clearly identifiable issue had been raised in the course of a criminal trial and had been decided against a party to those proceedings by means of judgment explaining how the issue had been decided, such decision could give rise to issue estoppel in later civil proceedings in which that party was also involved. Such estoppel would arise, not only in relation to the specific issue determined but also to findings which were fundamental to the court’s decision on such issue.

29.1 Is witness evidence admissible? If so, can witnesses be compelled to appear at trial, and can witnesses be cross-examined at trial?Witness evidence is admissible in Irish litigation – indeed, it is often the centre piece of a trial. Witnesses may be compelled to appear and they can be cross-examined. There would be very few exceptions to their obligation to give evidence (eg, where they could claim privilege).

29.2 Is expert evidence admissible? If so, can experts be cross-examined at trial?Yes. Expert evidence is admissible. Experts may be cross-examined at trial.

AVAILABLE DEFENCES30. Is a defendant able to advance a ‘passing on’ defence during the course of an action? Has such a defence been successful in previous actions?This has not yet been litigated by the Irish courts. It is therefore impossible to state categorically how the Irish courts would address the issue. However, the Irish courts would probably be influenced by any thinking at an EU level as well as overseas jurisprudence but it would probably be more influenced by English rather than US jurisprudence on this type of issue.

31. Are any other defences available? For example, would it be possible for a parent company subject to an action to advance a defence that it did not have control of the subsidiary which is alleged/has been held to have engaged in a breach of the applicable antitrust laws?This has not yet been litigated by the Irish courts. It is therefore impossible to state categorically how the Irish courts would address the issue. However, the Irish courts would probably be influenced by any thinking at an EU level as well as overseas jurisprudence but it would probably be more influenced by English rather than US jurisprudence on this type of issue.

AVAILABLE REMEDIES32. Are damages available, and if so, on what basis are damages awarded? Yes, damages (and exemplary damages) are available and their availability is recognised explicitly in section 14 of the 2002 Act.

Republic of Ireland


32.1 Towhatextentdotherelevantcourtsand/ortribunalstakeintoaccountanypublicfinancialpenaltiesimposedpreviouslyinawardingdamages in private litigation actions? There is no Irish precedent on this issue but it is unlikely that the courts would take into account any public financial penalties imposed previously in awarding damages in private litigation actions. This is because the aim of the remedy in the private litigation is to compensate the plaintiff and as the plaintiff would not receive any direct compensation from the public penalties, the plaintiff would be less short in terms of compensation if the public penalties were taken into account. Indeed, the legislation does not (as it could have) provide for those public penalties to be taken into account.

32.2 Are compensatory damages available (ie, in respect of the actual losses suffered by the claimant), and if so, in what circumstances?Yes, compensatory damages are available (ie, in respect of the actual losses suffered by the claimant).

32.3 Arerestitutionarydamagesavailable(ie,inrespectoftheprofitsachieved by the defendant(s) as a result of the breach), and if so, in what circumstances?Yes, restitutionary damages are available (ie, in respect of the profits achieved by the defendant(s) as a result of the breach).

32.4 Are exemplary damages available (ie, damages exceeding the amountoftheclaimant’slosssoastoreflectthedisapprovaloftheawarding court and/or tribunal in respect of the defendant’s conduct), and if so, in what circumstances?Yes, section 14 of the 2002 Act makes it explicitly clear that exemplary damages are available in litigation before the courts. The legislation does not give any guidance on how they would be calculated.

32.5 Is interest available upon any damages awarded?Yes.

33. Howaredamagesquantified?There has been no extensive consideration by the courts on the calculation of damages in competition claims. However, it is assumed that the approach taken in ordinary commercial litigation would apply such that losses would have to be identified, proven and quantified.

33.1 Have the relevant courts and/or tribunals indicated a preference foraspecificeconomicanalysisinrespectofquantifyingdamagesforparticular antitrust breaches?As the matter has not been litigated to date, it would be too early to say. However, the early indications are that the courts will require loss to be

Republic of Ireland


proven in a specific and meaningful manner and the courts will not be concerned with any particular ideological approach.

34. Are any other remedies available?The remedies available by way of the 2002 Act are damages, exemplary damages, injunctions and declarations. There may be other remedies or quasi-remedies available such where a trial judge finds that a contract is void (in whole or in part) and therefore the defendant does not have to perform its obligations under the contract.

APPEALS35. Is it possible to appeal the judgment of the relevant court and/or tribunal? If so, on what basis may an appeal be made?Yes, appeals are possible. If the appeal is from the Circuit Court to the High Court then it is a full rehearing of the case; this occurred in, for example, the case of Ballina Mineral Water Company v Murphy Brewery Ireland (see paragraph 8.1 above). If the appeal is from the High Court to the Supreme Court then it will usually be an appeal on a point of law. It is possible that a particular issue could be heard and litigated in the High Court before the main case proceed and an appeal could lie, on points of law, to the Supreme Court on the High Court’s decision on that point; this occurred in, for example, Deane v Voluntary Health Insurance Board (see paragraph 18.3 above). While not an appeal, it is possible to have a ‘case stated’ sent to the High Court on specific questions of law which are necessary to determine before the case in the Circuit Court can proceed.

REFORMS36. Are there any reforms proposed or due with regard to the legal regime applicable to private antitrust actions?At present, there is no public information suggesting that there are specific reforms planned to the legal regime applicable to private antitrust actions. Nonetheless, the Authority and the Minister are mindful of the need to facilitate private antitrust actions so the trend of reform is very much in favour of such actions.

republic of ireland - a&l goodbody antitrust... · republic of ireland. a&l goodbody . dr...

Documents