Granville Technology Group Ltd ((in Liquidation)) v Infineon Technologies AG
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foxton |
| Judgment Date | 25 February 2020 |
| Neutral Citation | [2020] EWHC 415 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2016-000304 |
| Date | 25 February 2020 |
[2020] EWHC 415 (Comm)
Mr Justice Foxton
Case No: CL-2016-000304
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice
7 Rolls Building
Fetter Lane
London, EC4A 1NL
David Scannell and Stefan Kuppen (instructed by Osborne Clarke LLP) for the Claimants
Sarah Ford QC and Tim Johnston (instructed by Slaughter and May) for the First Defendant
Daniel Jowell QC and Emily MacKenzie (instructed by Allen & Overy LLP) for the Second Defendant
Hearing dates: 20 th, 21 st and 22 nd January 2020.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the trial of two preliminary issues in proceedings brought by three companies who were engaged in the assembly and sale of desktop personal computers (“PCs”) and notebook computers (“Notebooks”). The claims arise from a price-fixing cartel (“the Cartel”) which was the subject of findings by the European Commission (“the Commission”) in its decision COMP/ 38511 adopted on 19 May 2010 (“the Decision”). The Cartel concerned the market for direct random access memory (“DRAM”) and Rambus DRAM used in the manufacture of PCs and Notebooks.
The Decision confirmed the involvement of a number of entities, including the First Defendant (“Infineon”) and the Second Defendant (“Micron Europe”), in the Cartel, and fines amounting to €331 million were imposed on the participants.
On 18 May 2016, just under six years from the date of the Commission's press release announcing the Decision, the Claimants commenced these proceedings, claiming compensatory damages or alternatively restitutionary relief arising from and in relation to the infringements established by the Decision. Following the discontinuance by the Claimants of claims against the third, fourth and fifth defendants, Infineon and Micron Europe are the sole remaining defendants.
Both Infineon and Micron Europe have pleaded, among other defences, that the Claimants' claims are time-barred under s.2 Limitation Act 1980 and/or s.9 Limitation Act 1980 (it being common ground that the claims for infringement of Article 101 of the Treaty of the Functioning of the European Union, Article 53 of the Agreement on the European Economic Area and Chapter 1 of the Competition Act 1998 advanced by the Claimants are subject to one or other of those sections). Those sections provide for a limitation period of six years from the date when the cause of action accrues. In response, the Claimants rely on the postponement of the primary limitation period provided for by s.32(1)(b) of the Act, where any fact relevant to the claimant's right of action has been deliberately concealed from the claimant by the defendant.
By an order of Jacobs J made with the consent of the parties on 4 June 2019, it was directed under CPR 3.1(2)(i) that the following issues would be tried as preliminary issues:
i) whether each of the Claimants' claims against the First Defendant is time-barred; and
ii) whether each of the Claimants' claims against the Second Defendant is time-barred.
On 11 December 2019, the Claimants applied to adjourn the preliminary issues trial. The basis of that application was the contention that Micron Europe's witness evidence raised issues which went beyond those with which the Claimants could reasonably have anticipated they would have to deal from the terms of the statements of case, and which would effectively require the court on the hearing of the preliminary issues to determine matters which were the preserve of the main trial. That application was refused by Knowles J on 19 December 2019, and the issue of admissibility was left to the trial judge to resolve. The Claimants' objection to Micron Europe's evidence has been renewed before me, albeit in modified form.
The parties and their representatives
As I have mentioned, the three claimants were all companies who were engaged in the assembly or sale of PCs and Notebooks, which were manufactured and sold under the brand names “Time” and “Tiny”. The past tense is appropriate because the claimants are all now in liquidation, and have brought the proceedings through their respective liquidators, individuals from Grant Thornton UK LLP. The First Claimant (“Granville”) and the Second Claimant (“VMT”) were at all material times in common ultimate beneficial ownership, and I will refer to them as the Granville Companies.
The Third Claimant (“OTC”) was a distinct legal entity and competitor of the Granville Companies, which ceased trading in January 2002 (at which point its business and assets, but not its share capital, were sold to the Granville Companies). There is an issue between the parties, which was not debated before me, as to whether or not the sale of OTC's assets to the Granville Companies included the right to bring the claims asserted in these proceedings. In the event that OTC and the Granville Companies stand in different positions so far as the issue of limitation was concerned, that issue might prove to be highly significant.
The Claimants were represented by David Scannell and Stefan Kuppen, instructed by Osborne Clarke LLP. Mr Kuppen shared the oral closing with Mr Scannell, and did so admirably.
Infineon is a company registered in Germany, which was established on 1 April 1999 when Siemens AG divested its semiconductor operations to an independent company. It manufactured DRAM until 2006. It was represented by Sarah Ford QC and Tim Johnston, instructed by Slaughter and May.
Micron Europe is a company registered in England, and a subsidiary of Micron Technology Inc (“Micron Inc”), a US corporation and one of the largest global producers of DRAM. It was represented by Daniel Jowell QC and Emily MacKenzie, instructed by Allen & Overy LLP.
The witnesses
The Claimants' witnesses
As I have mentioned, the Claimants are all companies in liquidation. OTC stopped trading in January 2002 and Granville and VMT entered into administration in July and August 2005 respectively and liquidation in January 2007. In these circumstances, it is unsurprising that there was no factual evidence from witnesses with contemporaneous involvement in the Claimants' purchases of DRAM. The Claimants' evidence comprised two witness statements from Mr Bartlett of Osborne Clarke LLP and two witness statements from Mr Wood, the current sole liquidator of the Granville Companies and OTC.
Mr Bartlett's statements exhibited a number of documents and commented upon them, but did not contain any first-hand evidence. In these circumstances, Infineon and Micron Europe did not cross-examine Mr Bartlett. The documents he had exhibited form part of the corpus of documentary evidence before me, and Mr Scannell was able to adopt the points made by Mr Bartlett as part of his submissions.
Mr Wood is a very experienced liquidator and administrator with Grant Thornton UK LLP. He was not involved in the administrations or liquidations of any of the Claimants during the period relevant to the issues before me. In his evidence, he reported on the results of the enquiries which had been made of other individuals who had acted in the administration and liquidation of the Claimants, identified the documents which had been located, and on the basis of those documents, and his own experience, set out his own views as to what was known and what information might have been obtained by exercising reasonable diligence.
Mr Wood was a conspicuously fair witness, but the timing of his involvement in the affairs of the Claimants limited the extent of the relevant evidence he was able to give.
The Defendants' witnesses
Infineon did not serve any witness statements.
Micron Europe served one witness statement from Mr Bokan, who described in general terms its sales channels and pricing practices. Mr Bokan was knowledgeable on the subject-matter of his statement, and sought to assist the Court where he could. However, his evidence was ultimately of limited relevance to the issues which it was necessary for me to decide.
Micron Europe also served two witness statements from Mr Ballard, who had been a regional sales manager for Micron Europe from 1997 to 2005, and a Distribution Manager from 2005 to 2017. In his role as regional sales manager, Mr Ballard was responsible for the sale of DRAM to the Claimants. Mr Ballard addressed his relationship with the Claimants and expressed his opinion as to what the Claimants ought to have understood about the nature of the DRAM market.
I found Mr Ballard to be a credible witness, doing his best to assist the Court. However, when producing his witness statement in 2019, it was understandably difficult for him to recall any detail of conversations and exchanges with the Claimants which would have taken place 14 to 17 years before, and which would have been relatively routine matters at the time. Mr Ballard's task was not made any easier by the fact that, if any documents had ever existed recording his interactions with the Claimants, they were no longer available.
The law
Section 32 of the Limitation Act 1980 provides:
“(1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
(c) the action is for relief...
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