"…it must be noted that the question whether a parent company was in a position to exercise decisive influence over its subsidiary's conduct on the market, like the question whether that influence was actually exercised, ultimately comes within the scope of the assessment of the facts. In that respect, it follows from the case-law cited in paragraph 47 of the present judgment that such an assessment may be inferred from a body of consistent evidence."
"The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman[2001] 1 All ER 91 ; ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 ."
"It is important to note that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position."
"Thirdly, it is not at all clear to me that the decision of this court in Cooper Tire establishes that, in a case such as the present, where anchor defendants domiciled in the UK are said to be party to the cartel, it is never necessary to include particulars of knowledge until after disclosure. Cooper Tire was, as Mr Beard QC, appearing on behalf of the KME defendants, has emphasised this morning, a case concerned only with a strike-out application. I of course accept that in some cases the circumstances may be such that it is sufficient simply to allege that anchor defendants domiciled in the UK were parties to or aware of anti-competitive conduct. However, I do not accept that that is necessarily so in all cases. For example, if it appears that the allegations against anchor defendants are based on nothing more than mere speculation, then I think it at least arguable that the claim should not be allowed to proceed merely on the basis that something might turn up on disclosure."
“27. …responsibility for the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. In such a situation, since the parent company and its subsidiary are part of the same economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement. 28. …where a parent company holds, directly or indirectly, all or almost all of the capital in a subsidiary which has committed an infringement of the EU competition rules, there is a rebuttable presumption that that parent company actually exercises a decisive influence over its subsidiary... 29. …it is sufficient for the Commission to prove that all or almost all of the capital in the subsidiary is held, directly or indirectly, by the parent company in order to take the view that that presumption is fulfilled. Accordingly, the Commission will then be able to regard the parent company as responsible for its subsidiary's conduct and as jointly and severally liable for the payment of the fine imposed on that subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market… 31. Once the presumption of actual exercise of decisive influence is established, it is solely for the parent company holding all or almost all of the capital of its subsidiary to rebut it. 32. In order to rebut that presumption, a parent company must… adduce evidence relating to the organisational, economic and legal links between its subsidiary and itself which are such as to demonstrate that they do not constitute a single economic entity... 33. In order to assess whether that subsidiary decides independently upon its own conduct on the market or carries out, in all material respects, the instructions given to it by its parent company… the EU judicature must take into consideration all relevant factors, which may vary from case to case and therefore cannot be set out in an exhaustive list…”
“31. It seems to me to be arguable that where two corporate entities are part of an “undertaking” (call it “Undertaking A”) and one of those entities has entered into an infringing agreement with other, independent, “undertakings”, then if another corporate entity which is part of Undertaking A then implements that infringing agreement, it is also infringing [Article 101(1) TFEU]. In my view, it is arguable that it is not necessary to plead or prove any particular “concurrence of wills” between the two legal entities within Undertaking A. The EU competition law concept of an “undertaking” is that it is one economic unit. The legal entities that are part of the one undertaking, by definition of the concept, have no independence of mind or action or will. They are to be regarded as all one. Therefore, so it seems to me, the mind and will of one legal entity is, for the purposes of [Article 101(1) TFEU], to be treated as the mind and will of the other entity. There is no question of having to “impute” the knowledge of one entity to another, because they are one and the same.”
“since any gains resulting from illegal activities accrue to the shareholders, it is only fair that that those who have the power of supervision should assume liability for the illegal business activities 70 of their subsidiaries”
"As to the Provimi point, we can readily agree that, as Aikens J said, it is "arguable"
“It is not clear why the Court of Appeal in KME thought that this decision decided the point against Aikens J’s analysis. As the High Court has pointed out in a recent case, Aristrain decided a rather different point, namely that simply because separate companies are owned by the same person or family, they are not ipso facto to be treated as a single economic unit so that the actions of one can be attributed to the other. Indeed, if anything, Aristrain could be said to support the point Aikens J held to be “arguable”, as in paragraph 99 the Court of Justice does not express the attribution of liability within a single “undertaking” in terms of parent/subsidiary, but in more general terms.”
“216. The Commission could therefore rightly and in line with the concept of “undertaking”, consider that Servier and Biogaran were jointly and severally liable for the conduct of which they are accused, because the acts committed by any one of them are deemed to have been committed by one and the same undertaking (see, in this regard, the judgments of20 March 2002 , HFB and others v. Commission, T-9/99, EU:T:2002:70, points 524 and 525, and of12 December 2007 , Akzo Nobel and others v. Commission, T-112/05, EU:T:2007:381, point 62; see also, in this regard and by analogy, the judgments of6 March 1974 , Istituto Chemioterapico Italiano and Commercial Solvents v. Commission, 6/73 and 7/73, EU:C:1974:18, point 41, and of16 November 2000 , MetsäSerla and others v. Commission, C-294/98 P, EU:C:2000:632, points 26 to 28). 217. The fact that, in the present case, the infringement of Article 101 TFEU found by the Commission results in part from the behaviour of the parent company and, in part, from the behaviour of the subsidiary, does not bring this conclusion into doubt. This is so even though in cases of joint and several liability between a parent company and its subsidiary, the offence is most often the result of the behaviour of the subsidiary. … 221. Biogaran vainly claims that it should not be recognized as jointly responsible of the offence, on the grounds that it had no knowledge of the actions of its parent company. 222. Firstly, this grievance is based on the erroneous assumption that Biogaran is held liable for an offence committed by its parent company. However, as has just been stated, this premise is wrong in fact as well as in law. 223. Secondly, it should be remembered that the decisive influence that a parent company exercises over its wholly-owned subsidiary permits the presumption that the subsidiary’s acts are carried out for and on behalf of the parent company and, consequently, of the undertaking that they constitute. Given that the Court considered, as shown by the reply to the preceding objection, that Biogaran had not pursued a genuine economic interest by signing the Biogaran agreement, nor had it implemented an independent strategy, outside the control of its parent company, the Commission had good cause to consider that the Biogaran agreement, as an additional inducement for Niche to accept the amicable settlement, was one of the component parts of the infringement in which Biogaran had participated directly, with no need to demonstrate that Biogaran was aware of the actions of Servier or of an overall Servier plan or of the characteristics of the infringement. 224. Furthermore, the applicant wrongly relies on the judgement of2 October 2003 , Aristrain/Commission (Case C-196/99 P, UE:C:2003:529, point 99). In fact, this case did not concern the relationship between a parent company and its wholly-owned subsidiary, but the ownership of the share capital of two separate commercial entities by one person or one family; this circumstance was judged insufficient by the EU Court, as such, to establish the existence between these two companies of an economic unit, the consequence of which, under EU competition rules, could have been that the actions of both can be attributed to this economic unit. Similarly, the references to the judgments of8 July 2008 , AC-Treuhand v. Commission (T-99/04, EU:T:2008:256), of30 November 2011 , Quinn Barlo and others v. Commission (T-208/06, EU:T:2011:701), and of10 October 2014 , Soliver v. Commission (T68/09, EU:T:2014:867), are not relevant, because they are outside of the context of the parent-subsidiary relationship and a single economic unit. 225. Thirdly, if, as the applicant asserts, the Commission had to prove that the subsidiary was aware of its parent company’s actions in order for the infringement to be attributed to the group, the notion of an economic unit would be affected. It would be necessary to establish, for each component part of the infringement resulting from the conduct of either of these two companies, that the subsidiary was aware of the objectives pursued by the parent company, whereas the very notion of an undertaking within the meaning of European Union competition rules supposes, in presuming that the parent company exercises a decisive influence on the wholly-owned subsidiary, that the subsidiary acts within the framework of the objectives pursued by the parent company, under its direction and control. As the Court has ruled, the condition for attributing to all the components of the undertaking the various types of infringing conduct constituting the whole of an agreement is met when each component of the undertaking has contributed to its implementation, even if that be in a subordinate, accessory or passive manner (see, in this regard, the judgments of26 January 2017 , Duravit and others v. Commission, C-609/13 P, EU:C:2017:46, points 117 to 126, and of8 July 2008 , ACTreuhand v. Commission, T-99/04, EU:T:2008:256, point 133). 226. If the applicant’s argument were to be accepted, it would become more difficult to establish infringements of competition rules in groups of companies, while the presumption that a parent company controls its wholly-owned subsidiary is intended to avoid the situation where infringing conduct is attributed solely to the subsidiaries directly responsible for it, and thus avoiding punishment of the group as a whole. It would, in fact, suffice for a parent company to share the infringing conduct between itself and its subsidiary and to plead that its subsidiary was not aware of the parent company’s actions in order for the component of the infringement resulting from the subsidiary’s direct participation in the infringement to be attributed to the subsidiary alone. The result of this would be reduced effectiveness in the fight against anticompetitive practices, which could not be justified by respect for the principle of personal responsibility for infringements. 227. It follows from the foregoing that the applicant’s argument that the Commission wrongly attributed to it, in violation of the principle of personal responsibility, liability for the infringing actions of its parent company is thus defective both in law and in fact. Not only did the Commission not attribute to Biogaran the infringement of which its parent company is accused, given that the infringement is attributed only to the Servier group, but the Commission also, and rightly, considered that it was not necessary to establish that Biogaran was aware of the actions of its parent company…”
“By the said conduct, in implementing, operating and/or participating in the Cartel, the Defendants and/or the undertakings of which they formed part, or any two or more of them, by their directors, servants or agents have combined together and/or participated in a conspiracy to use unlawful means to harm the economic interests of the Claimants in a manner which was intended to, and has, caused them to suffer loss and damage”
"By the said conduct, each of the Defendants and/or the undertakings of which they formed part interfered with the ability of the other Defendants and/or the undertakings of which they formed part to deal with the Claimants on the terms which otherwise would have applied to such sales transactions. The anti-competitive agreements and/or arrangements entered into were, by their terms, that each of the Defendants and/or the undertakings of which they formed part restricted, or abnegated, their freedom to deal with the Claimants."
"This form of the tort is committed where two or more persons combine and take action which is unlawful in itself with the intention of causing damage to a third party who does incur the intended damage. It is not necessary for the injured party to prove that causing him damage was the main or predominant purpose of the combination but that purpose must be part of the combiners' intentions."
“38. Essentially what the judge did was to infer intent to injure flowing from the fact that the cartelists intended to benefit their own businesses. He held: “In my judgment, although the Defendants' purpose in entering into the cartel was to promote their own economic interests, it is wholly unrealistic to regard this as divorced from the causation of loss to purchasers of copper plumbing tubes, even if the loss caused to the Claimants might not correspond to the Defendants' gain. On the basis of OBG, I consider that this element of the tort can be established on the basis of the finding of infringement in the Decision alone.” 39. However, in my judgment, the court cannot draw that inference since it does not necessarily follow. IMI group may have absolutely no intent as regards Newson group. They may have expected Newson group to pass the price increase on. It may well be that all purchasers of copper tubes would have been in the same position, so that they were able to pass the extra prices on. 40. In my judgment, the passage which Lord Nicholls cites from Lord Sumner in Sorrell v Smith…, and on which the judge must have relied, does not on analysis support the judge's approach. It uses the word “ensuing” in the sense of a transitive verb (meaning “following”), which is now obsolete. However, the sense is clear. Lord Sumner is taking the situation where loss to the plaintiff must follow from the object of the conspiracy. He was taking the case where the proved facts exclude every other inference. As Lord Nicholls puts it, the gain and the loss are inseparably linked. But it does not follow in this case that Newson group would inevitably suffer loss. That would not be so if they were able to pass on the price increases to their customers. They might even have made a profit if they were able to raise their prices in advance of becoming liable to pay price increases to IMI group. 41. Mr de la Mare seeks to meet this difficulty by submitting that it matters not if IMI group were simply indifferent whether the victims were the direct or the indirect purchasers of pipes and that it is sufficient that IMI group intended to make a profit at the expense of a class of persons to whom the wrongful acts were targeted. I would reject this argument. It deprives the requirement of intent to injure of any substantial content. It is tantamount to saying that it is sufficient that the conspirators must have intended to injure anyone who might suffer loss from their agreement. If I might say so, the submission is reminiscent of the circularity of the words in The Gondoliers that “when everyone is somebody, then no-one's anybody. 42. As a further argument, Mr De la Mare submits that it was enough that Newson group paid the higher prices before they passed them on. But that is speculation: Newson group may have raised its prices enough to compensate for this. It does not follow from the fact that Newson group expended cash to pay IMI group's inflated prices that IMI group thereby intended them to make a loss.” “In my judgment, although the Defendants' purpose in entering into the cartel was to promote their own economic interests, it is wholly unrealistic to regard this as divorced from the causation of loss to purchasers of copper plumbing tubes, even if the loss caused to the Claimants might not correspond to the Defendants' gain. On the basis of OBG, I consider that this element of the tort can be established on the basis of the finding of infringement in the Decision alone.”
"..in circumstances where persons combine to abstract monies from a group and then to cover up and account for the abstraction in any way they can, an intent to injure or defraud any company which, as a result of their operations, ends up bearing the loss, may readily be inferred."
“13. The leading speech was delivered by Lord Walker, with whom Lord Scott, Lord Mance and Lord Neuberger agreed. Lord Hope, without agreeing so in terms, proposed an analysis of this point which was consistent with Lord Walker’s. The first point to be derived from the speeches concerns intention. The distinction between cases where there is and cases where there is not a predominant intention to injure the claimant, is an inadequate tool for determining liability because it does not exhaust the possibilities. The emphasis in the authorities on cases in which the predominant purpose was to injure the claimant has diverted attention from the fact that both lawful means and unlawful means conspiracies are torts of intent. But the nature of the intent required differs as between the two. This is because a conspiracy may be directed against the claimant notwithstanding that its predominant purpose is not to injure him but to further some commercial objective of the defendant. This point had been made, some years earlier, by the Supreme Court of Canada in Canada Cement LaFarge Ltd v British Columbia Lightweight Aggregate Ltd[1983] 1 SCR 452 . After a careful analysis of the (mainly English) authorities, Estey J, delivering the judgment of the Court, concluded at pp 471-472 that “whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or, (2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result. In situation (2) it is not necessary that the predominant purpose of the defendants’ conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.”
“In my opinion, and subject to one qualification, acts against a third party count as unlawful means only if they are actionable by that third party. The qualification is that they will also be unlawful means if the only reason why they are not actionable is because the third party has suffered no loss. In the case of intimidation, for example, the threat will usually give rise to no cause of action by the third party because he will have suffered no loss. If he submits to the threat, then, as the defendant intended, the claimant will have suffered loss instead. It is nevertheless unlawful means. But the threat must be to do something which would have been actionable if the third party had suffered loss. Likewise, in National Phonograph Co Ltd v Edison-Bell Consolidated Phonograph Co Ltd[1908] 1 Ch 335 the defendant intentionally caused loss to the plaintiff by fraudulently inducing a third party to act to the plaintiff's detriment. The fraud was unlawful means because it would have been actionable if the third party had suffered any loss, even though in the event it was the plaintiff who suffered. In this respect, procuring the actions of a third party by fraud (dolus) is obviously very similar to procuring them by intimidation (metus).”
“It is not known whether anyone from the alleged class (whether that be the shippers or the shippers and freight forwarders together) will in fact suffer at all. BA is not seeking to gain at their expense, even if it is foreseeable that this is in fact what may happen. Even if one expands the class to anyone in the chain down to the ultimate consumers (which is not in fact how the case is put), this opens up an unknown and unknowable range of potential claimants. It cannot be said that there is, to use Lord Nicholls' emphasised words, an intent to injure the particular claimant. Moreover, to fix liability in these circumstances is in our view directly at odds with the binding decision in Newson.”
“…we do not accept that these complexities about potential loss affect the question of intent. These more indirect losses may, or may not, have been incurred, but in our view it cannot be said that BA would either be intending that they should be incurred or would, in the language of Lord Nicholls' explanatory gloss, know that in the very nature of things they were likely to occur. We are not unhappy to reach this conclusion. It seems to us that if these economic tort claims could be advanced, it would have two results, both of which seem to us to be undesirable. First, it would extend the effect of competition law and upset the balance which the draftsman had thought appropriate when framing the rules for unfair competition… Second, it would in reality dilute the concept of intention and bring it unacceptably and perilously close to a concept of foreseeability.”
“We are very doubtful whether action which simply increases the price at which freight services can be acquired by the claimants can be said to affect the freedom of freight forwarders to deal with the shippers. It may affect the way in which that freedom can be exercised if, say, the shippers choose not to purchase the services because they are too expensive, but that does not seem to be an interference with the freedom itself. However, this issue is not directly before us and we did not hear any detailed argument about it, so it would be wrong to express any concluded view. Accordingly, for the purposes of this appeal we will assume that the claimants would be able to establish that the means employed by BA, including the breaches of the foreign competition laws, were unlawful for the purposes of these two torts and that as a consequence BA interfered with the liberty of the freight forwarders to deal with the claimants.”
“32. In that regard, the matters to be taken into account by the competent national court include the economic and legal context in which the parties find themselves and, as the United Kingdom Government rightly points out, the respective bargaining power and conduct of the two parties to the contract. 33. In particular, it is for the national court to ascertain whether the party who claims to have suffered loss through concluding a contract that is liable to restrict or distort competition found himself in a markedly weaker position than the other party, such as seriously to compromise or even eliminate his freedom to negotiate the terms of the contract and his capacity to avoid the loss or reduce its extent, in particular by availing himself in good time of all the legal remedies available to him.”
“An attempt to clarify the practical implications of these principles was made by the Court of Appeal in Canada Trust Co v Stolzenberg (No 2)[1998] 1 WLR 547 . Waller LJ, delivering the leading judgment observed at p 555: “‘Good arguable case’ reflects … that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction.”
“As we agree that this action cannot continue against the current defendant, everything which we say about jurisdiction is obiter dicta and should be treated with appropriate caution. For what it is worth, I agree (1) that the correct test is “a good arguable case” and glosses should be avoided; I do not read Lord Sumption’s explication in para 7 as glossing the test;…”
"23 … it is settled law that those special rules on jurisdiction must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by Regulation 44/2001 [i.e. the original Brussels Regulation]…. 24 It is for the national courts to interpret those rules having regard for the principle of legal certainty, which is one of the objectives of Regulation 44/2001…. 25 That principle requires, in particular, that the special rules on jurisdiction be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the state in which he is domiciled, he may be sued…. 32 However, the special rule on jurisdiction provided for in [now Article 8(1) RBR] …cannot be interpreted in such a way as to allow a plaintiff to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled."
“…where, when proceedings are instituted, claims are connected within the meaning of [Article 8(1) of the RBR] …, the court seised of the case can find that the rule of jurisdiction laid down in that provision has potentially been circumvented only where there is firm evidence to support the conclusion that the applicant artificially fulfilled, or prolonged the fulfilment of, that provision’s applicability.”