Courage Ltd v Crehan (Case C-453/99)
| Jurisdiction | England & Wales |
| Judge | THE VICE-CHANCELLOR,LORD JUSTICE SCHIEMANN,LORD JUSTICE MANCE |
| Judgment Date | 12 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1930 |
| Docket Number | No A3/1998/1502 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 2001 |
[2001] EWCA Civ 1930
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE CARNWATH
Royal Courts of Justice
Strand
London WC2
The Vice-chancellor
Lord Justice Schiemann
Lord Justice Mance
No A3/1998/1502
MR DAVID VAUGHAN QC and MR MARK BREALEY (Instructed by Charles Russell of Cheltenham) appeared on behalf of the Appellant
MR RICHARD FIELD QC and MR NICHOLAS GREEN QC (Instructed by Masons) appeared on behalf of the Respondent
( )
In Summer 1999 we referred to the European Court of Justice four questions in order to enable us to determine certain issues arising on a counterclaim of Mr Crehan in an action involving beer ties. The result of the answers from the European Court of Justice means that Mr Crehan does have available, if he proves the underlying facts, a cause of action for infringement of Article 85 notwithstanding that he was a party to the beer tie agreement, provided that he did not bear any significant responsibility for the distortion of competition that was assumed in his cause of action.
The matter having been restored to consider the further conduct of the proceedings, the other side, Courage and Inntrepreneur Estates Plc, seek an order from this court for the trial of two further preliminary issues. The first is the question whether if Mr Crehan is successful in proving his claim for breach of Article 85 it would nevertheless be defeated by the application of the block exemption contained in EC Regulation 1984/83; and, secondly, assuming the block exemption did not apply but Mr Crehan was otherwise successful, whether the loss which he claims was indeed caused by the wrong of which he complains. It is submitted that either or both those preliminary issues would, if decided in Courage's favour, bring to an end this litigation and would save many weeks of hearing and not inconsiderable sums in respect of costs.
As against that, the history of this action shows that eight years have already passed since the proceedings were commenced by Courage's claim issued on 9th June 1993 and the counterclaim of Mr Crehan served on 12th August 1993. The first four years were taken up by the application of Inntrepreneur for individual exemptions and confirmation that the block exemption applied which, before it was resolved by the European authorities, was withdrawn. The application which led to the reference to the European Court of Justice was instituted in 1997/1998; and here we are in 2001, not much further forward than in Summer 1993 when Mr Crehan's counterclaim was originally instituted. It seems to me that the preliminary issues would only be effective if decided in favour of Courage. That, in relation to the exemption, should, if it was to be raised, have been raised four years ago and that in relation to causation is inappropriate because it would involve substantial issues of fact. In the light, particularly, of the delay of eight years, I would not order either of the preliminary issues for which orders are sought; rather I would direct or give such directions as may be necessary to ensure the trial of the action or the remaining issues in the action as soon as reasonably possible.
I agree.
I also agree.
( Discussion regarding costs)
We dealt this morning with the consequences for the further conduct of these proceedings arising from the answers of the European Court of Justice to the reference we made in July 1999. 7. We now have to deal with the costs of the proceedings in this court, before the European Court of Justice and before Mr Justice Carnwath from whom the appeal came in the first place.
The first question to be determined is whether in relation to the costs in this court we are able to make any order at all given the form of order drawn up on 29th May 1999. The form of the order was as follows. It recited a notice of appeal from an order of Mr Justice Carnwath and then set out the terms of Mr Justice Carnwath's order. No point arises in relation to paragraphs 1 and 2 whereby he gave judgment for Courage in respect of their claim. In paragraph 3 he directed that the defendant's counterclaim be dismissed. That part of his order must now be set aside because that is a consequence of the order we made this morning. In paragraph 4 he said the defendant Mr Crehan should pay Courage's costs of the action not to be enforced without leave, such costs to be taxed if not agreed. That order plainly envisaged the costs of both the claim and the counterclaim because he had dismissed the counterclaim and had given judgment in the action.
When it came to the order made on the appeal (at the foot of page 38 of the bundle before us), it is recorded that we ordered two questions to be referred to the European Court of Justice in a form to be subsequently settled, and continued:
“2 the plaintiff's (by original action) costs of this appeal be paid by the defendant (by original action), such costs to be assessed if not agreed”
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