English Pfleiderer ruling allows leniency material disclosure in follow-on cases

05 Apr 2012

On 4 April 2012, Mr Justice Roth, handed down his judgment in National Grid’s application for disclosure, first brought before the court on 15 June 2011, the day after the European Court of Justice’s Pfleiderer ruling.  In its application, National Grid inter alia sought disclosure from the defendants (the GIS cartelists) of relevant parts of documents submitted by them to the Commission which may contain leniency material.

The case was part of the long running follow-on damages claim being brought by National Grid against members of the Gas Insulated Switchgear cartel. The defendants had sought to argue no leniency material should be disclosed even if it was of real assistance to the claimants in pursuing their claim.  The court rejected this approach and carried out a careful analysis of the relevant documents.

The outcome is in contrast to the conclusion of the German court in the Pfliederer case which decided to afford no disclosure of any leniency material notwithstanding the ECJ’s judgment.

The National Grid judgment is already being studied across Europe. The result is another stage in the process of balancing the need for successful prosecution of cartelists by the competition authorities through the use of leniency and empowering litigants to enforce their competition law rights in the national courts

Jon Turner QC and Daniel Beard QC acted for National Grid

Click to read the judgment in National Grid