High Court refuses to strike out Copper Tubes contribution claim

04/12/13

On 3^rd September 2004, the EU Commission issued a decision in Case COMP/E-1.38.069, finding that a complex international cartel had operated for some 13 years concerning the supply of copper plumbing tubes. The Decision was addressed to 21 companies, including Boliden and IMI, and imposed total fines of €222.3 million.

A number of companies in the Travis Perkins plc group were purchasers of copper plumbing tubes at the material time. They have brought a claim in respect of the alleged loss caused by the cartel against two of the addressees of the Commission's decision, Boliden and IMI, under section 47A of the Competition Act 1998. The claim was originally brought before the Competition Appeal Tribunal and later transferred to the High Court by Order dated 24^th July 2012.

Boliden and IMI have each brought claims for contribution against other addressees of the decision under the Civil Liability (Contribution) Act 1978. They have also brought a contribution claim against AGA Rangemaster Group plc and AFG Manufacturing Limited ("AGA") who were not addresses of the Decision. They allege that a business sold by AGA to the Mueller group of companies in February 1997 was involved in the cartel prior to that date and ought also be required to make contribution.

At a case management conference on 29^th November 2013, Rose J gave various case management directions for a hearing to determine AGA's liability. Most notably, Rose J directed that a confidential version of the Commission's decision together with documents relevant to AGA's alleged liability including leniency documents, should be disclosed into a confidentiality ring. She did so without inviting submissions from the Commission or conducting a document by document review, considering that the balancing exercise required by Case C-360/09 Pfleiderer required all relevant documents to be disclosed to AGA as a party seeking to defend itself.

In a judgment handed down on 4^th December 2013, Rose J rejected an argument advanced by Mueller that AGA could not be liable to make contribution as it was not an addressee of the Commission's decision and thus not liable in damages to Travis Perkins under section 47A.

The judgment is here.