W.H. Newson Holding Ltd and Others v Imi Plc and Another (First and Second Defendants/Part 20 Claimants/Respondents) Delta Ltd (Formerly Delta Plc) and Another (Part 20 Defendants/Appellants)
| Jurisdiction | England & Wales |
| Judge | Sir Colin Rimer,Lord Justice Hamblen,Lord Justice Gross |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] EWCA Civ 773 |
| Docket Number | Case No: A3/2015/2167 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2016 |
[2016] EWCA Civ 773
Lord Justice Gross
Lord Justice Hamblen
and
Sir Colin Rimer
Case No: A3/2015/2167
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mrs Justice Rose
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Davies QC and Charlotte Thomas (instructed by Addleshaw Goddard LLP) for the Part 20 Defendants/Appellants
Paul Harris QC and Rob Williams (instructed by Pinsent Masons LLP) for the Part 20 Claimants/Respondents
Hearing date: 22 June 2016
Approved Judgment
This appeal is against paragraph 1 of an order dated 18 June 2015 made by Rose J in the Chancery Division by which she answered a preliminary issue turning on the interpretation of section 1(4) of the Civil Liability (Contribution) Act 1978 ('the 1978 Act'). Her answer was that the effect of the subsection was to bar Delta Limited and Delta Engineering Holdings Limited (together 'Delta'), defendants to a Part 20 claim by IMI PLC and IMI Kynoch Limited (together 'IMI'), defendants in the main proceedings, from advancing a defence to the Part 20 claim based on limitation.
Rose J said in [29] of her judgment, [2015] EWHC 1676 (Ch), that she had found the point a very difficult one and it is with her permission that Delta appeals. I express my gratitude for the helpful arguments we have had from Ms Davies QC and Ms Thomas for Delta and from Mr Harris QC and Mr Williams for IMI.
Background
On 20 September 2006, in Case COMP/ F-1/38.121 – Fittings, the European Commission found that IMI and Delta, amongst others, had participated in an unlawful price-fixing cartel in the market for copper and copper alloy fittings, which existed between 31 December 1988 and 1 April 2004. IMI was found to have participated from the start until 22 March 2001, and Delta from the start until 23 November 2001. The cartel was in breach of Article 101(1) of the TFEU. On 12 May 2012, W.H. Newson Holding Limited and 22 others brought follow-on damages claims against IMI and one other cartel participant, Legris Industries SA ('Legris'). I shall refer to the 23 claimants, which are all part of a group owned by Travis Perkins Plc, as 'Travis Perkins'. Their cause of action was breach of statutory duty, namely infringement of Article 101(1). On the basis that they had been active in the copper fittings market during the cartel period, Travis Perkins claimed they had suffered loss under various heads, including that the effect of the cartel was unlawfully to inflate prices so as to lead to overcharges as compared with the competitive price. The total amount claimed, with interest, exceeded £390 million.
IMI defended the claim on various grounds, including that it was barred by limitation. In paragraph 37 of its Defence of 14 February 2014, it asserted that 'in any event, the claim is time barred, the causes of action having accrued at the latest at the end of the pleaded Cartel Period, namely 1 April 2004' (the claim form had been issued over six years later). Travis Perkins pleaded a Reply on 12 March 2014, denying that the claim was time barred. In reliance on section 32(1)(b) of the Limitation Act 1980, they alleged in paragraph 17 that IMI had deliberately concealed facts relating to the cartel such that time did not start to run until the date on which they could with reasonable diligence have discovered the relevant facts. Paragraph 17 reads:
'Paragraph 37 is denied. IMI and the other Cartelists deliberately concealed the Cartel and the facts relating to it from (among others) the Claimants (see Recital 745 [of the Commission Decision]). The earliest date on which the Claimants could with reasonable diligence have discovered the concealment, and sufficient facts to plead a right of action, was the date on which the Summary Decision was published in the Official Journal of the European Union, namely 27 October 2007, alternatively the date of the European Commission press release announcing the Decision, namely 20 September 2006. Accordingly, pursuant to section 32 of the Limitation Act 1980, the period of limitation runs from that date and the claims were brought in time.'
In the meantime, IMI had served Part 20 claims dated 16 October 2012 on 23 Part 20 defendants, of which Delta are the 11 th and 12 th. All 23 were addressees of the Commission Decision and found to be participants in the cartel. The Part 20 claims were for a contribution or indemnity under section 1 of the 1978 Act. IMI pleaded in paragraph 9 that it denied Travis Perkins' claims against itself but the essence of its contribution claims was that, to the extent that it might be held liable to Travis Perkins, each of the Part 20 defendants was jointly and severally liable with it for the same damage.
Delta defended the Part 20 claim against it. By its Defence of May 2014 (which followed Travis Perkins' Reply), it denied that either IMI or Delta caused any loss to Travis Perkins, asserting that Travis Perkins passed any overcharges resulting from the cartel on to their customers and thereby gained a profit rather than suffered any loss. Delta also pleaded the following case on limitation (certain of the particulars were in fact added by an amendment of 16 October 2014):
'18. Further as to the first two sentences of paragraph 9, and as particularised below, it is averred that the Claimants' [Travis Perkins'] claim is time barred since the Claimants fail to satisfy the conditions of section 32(1)(b) of the Limitation Act 1980 as alleged, namely that prior 12 May or 17 September 2006:
18.1. that they were unaware of, and could not with reasonable diligence have discovered, certain facts without which the cause of action against the Defendants would have been incomplete;
18.2 that such facts were being concealed from them by the Defendants; and
18.3 that any such concealment by the Defendants was deliberate.
(1) The Claimants were aware or could with reasonable diligence have become aware of the fact of price-coordination by at least Delta and IMI from 1988 for the reasons set out in the witness statement of David Pearce dated 5 September 2014.
(2) Delta did not conceal that fact from the Claimants but supplied it or permitted it to be supplied to the Claimants for the reasons set out in the witness statement of David Pearce dated 5 September 2014.
(3) The Claimants were also aware or could with reasonable diligence have become aware of the fact that price-coordination by at least IMI and/or Delta on the basis of the following publicly available information with the Claimants had or could with reasonable diligence have obtained:
[(a) – (e) particulars of Commission press releases and references to the investigation in IMI's and Delta's annual reports]
(4) On the basis of the above, the Claimants were aware or could with reasonable diligence have become aware of the fact that such price-coordination between at least Delta and IMI had the object or effect of distorting competition, an effect on trade between Member States and could properly have pleaded damage as a result.'
Mr Pearce there referred to is a former managing director of Delta's UK plumbing fittings business. His witness statement asserted that Travis Perkins were at all times aware of price-fixing arrangements.
On 10 July 2014, IMI applied to the court for a direction that the limitation issue should be tried as a preliminary issue. A CMC to consider the application was fixed for 24/25 July 2014. IMI's Note for it explained: (i) that the pleadings had closed in accordance with a consent order of 15 April 2014, in particular by the preparation of Part 20 Defences, and that IMI had elected not to serve Replies; (ii) that Travis Perkins and IMI had reached agreements in principle to settle both the main claim and the Part 20 claim against Legris and that IMI had made significant progress in settling all its other Part 20 claims save that against Delta; (iii) that Travis Perkins and IMI had agreed there should be a preliminary issue on the question of limitation; (iv) that they had agreed that, as Delta had raised the positive case it had in paragraph 18 of its Part 20 Defence, it should take the lead in prosecuting the issue; (v) that whilst Delta did not oppose the preliminary issue proposal, it did oppose the suggestion that it should take such lead; and (vi) that IMI disagreed with Delta's suggestion that IMI should adopt its positive case on limitation. IMI's position as to the last point was that Delta had made the positive assertions that it had and, having done so, must either pursue or withdraw them; and that it was neither necessary nor appropriate for IMI to adopt Delta's case. IMI said, in paragraph 22(c) of its Note, that:
'The suggestion that IMI needs to adopt Delta's case, including its evidence is wrong in principle and would only lead to increased cost, inefficiency and complexity. Indeed, it is far from a foregone conclusion that IMI would wish to adopt Delta's case (and either way, that would not remove the need for the preliminary issue on limitation to be tried).'
The CMC was adjourned to 17 September 2014. By then, Travis Perkins' claim against Legris and all IMI's Part 20 claims save those against Delta, Alto Supergrif SL and Fra Bo SPA had been settled by agreement. Travis Perkins had, however, now withdrawn their support for a preliminary issue, and IMI was now neutral on it. Delta opposed IMI's application for a preliminary issue and the outcome was that none was directed.
IMI settles with Travis Perkins
Travis Perkins...
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