10/04/2013

National Grid Electricity Transmission Plc v ABB Ltd & Others [2013] EWHC 822 (Ch)

Disclosure and the French Blocking Statute: Competition Law follow-on damages

In the leading competition law follow-on damages action, National Grid v ABB and others, Mr Justice Roth has given another important interlocutory ruling. In his judgment of 11 April 2013, he had decided that the French defendants in the action are required to give disclosure under the CPR, despite the fact that, in so doing, those defendants would commit an offence under a French statute, commonly referred to as the “French Blocking Statute”. The French Blocking Statute prohibits the provision of documents or information for the purposes of establishing evidence in judicial proceedings outside France. The judge exercised his discretion in favour of ordering disclosure on the basis that it was ‘virtually inconceivable’ that the French defendants would be prosecuted in France. At the same time, he rejected the defendants’ application that the documents be provided, instead, by a judicial request to the French courts under the EC Regulation on the taking of evidence (Regulation 1206/2001).

Mr Justice Roth gave the French defendants permission to appeal and their appeal will be heard by the Court of Appeal on 25 June 2013. This will be the first decision of the Court of Appeal on the French Blocking Statute.

The National Grid case was one of only two UK cases recently shortlisted in the Litigation of the Year category for the Global Competition Law Review Awards 2013.

Stephen Morris QC appeared on behalf of the French defendants