(1) OFFICE DEPOT INTERNATIONAL BV v (2) OFFICE DEPOT INTERNATIONAL (UK) LIMITED [2019] EWHC 2115 (Ch)

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPETITION LIST
[2019] EWHC 2115 (Ch)Case No Ref. CP-2018-000021
Between
(1) OFFICE DEPOT INTERNATIONAL BV(2) OFFICE DEPOT INTERNATIONAL (UK) LIMITED(3) OFFICE DEPOT UK LIMITED(4) OFFICE DEPOT FRANCE SAS(5) OFFICE DEPOT DEUTSCHLAND GMBHClaimants(1) HOLDHAM S.A.(2) HAMELIN BRANDS LIMITED(3) PRINTEOS, S.A.(4) PRINTEOS CARTERA INDUSTRIAL S.A.(5) TOMPLA FRANCE S.A.R.L.(6) TOMPLA DRUCKERZEUGNISSE VERTRIEBS GMBH(7) COMPAGNIE EUROPÉENNE DE PAPETERIE S.A.Defendants
Before
Sir Geoffrey VosMr James Flynn QC and Mr Hugo Leith (instructed by Taylor Morris LLP) appeared for the 3rd, 4th, 8th-12th Defendants (the "defendants")Ms Marie Demetriou and Mr Richard Howell (instructed by Addleshaw Goddards LLP) appeared for the Claimants (the "Office Depot claimants")Hearing date: 9th July 2019
[1]Sir Geoffrey Vos, Chancellor of the High Court: Introduction The five Office Depot claimants have brought a follow-on claim against the defendants for breach of statutory duty under section 2 of the European Communities Act 1972 for loss and damage allegedly suffered as a result of a single and continuous infringement of article 101(1) of the Treaty on the Functioning of the European Union (the "TFEU"), and article 53 of the agreement on the European Economic Area in the sector of standard and special printed envelopes between at least October 2003 and 22 April 2008.[2]The claim arises in common parlance from the Commission Decision of 10 December 2014 that certain commercial groups had operated a cartel. The groups of companies that were participators and are relevant to this application are(a) Hamelin, which is the third defendant (owned by the fourth defendant),(b) Tompla, which included five companies including the eighth to eleventh defendants, and(c) Bong, which included five entities. Two other participants were GPV and Mayer-Kuvert, but the claims against those groups have been compromised. They were originally additional defendants to these proceedings.[3]The Office Depot claimants have also brought follow-on proceedings in England against certain Bong corporate defendants, but they did so only after those Bong parties had commenced Swedish proceedings for negative declarations as to their liability. The defendants to these proceedings and the Bong defendants were, as I say, for the most part, the subject of the same Commission Decision on the cartel relating to envelopes.[4]By this application the defendants seek to stay the claim against them pending the final determination of the Swedish proceedings on two grounds. First, they seek a stay under article 30 of Parliament and Council Regulation (EU) No 1215/2012 (the "Brussels Regulation"), because these proceedings and the Swedish proceedings are "related actions" giving rise to a risk of irreconcilable judgments. The defendants also seek a temporary stay on case management grounds under CPR r 3.1(1)(f) so that if the Swedish Bong claimants lose the jurisdictional issue in Sweden, these proceedings and the English Bong proceedings can be consolidated. Swedish proceedings are "related actions" giving rise to a risk of irreconcilable judgments. The defendants also seek a temporary stay on case management grounds under CPR r 3.1(1)(f) so that if the Swedish Bong claimants lose the jurisdictional issue in Sweden, these proceedings and the English Bong proceedings can be consolidated.[5]The Office Depot claimants, represented by Ms Marie Demetriou QC and Mr Richard Howell, submit that the defendants' application is made under CPR r 11(1)(b) since it is made by defendants who wish to argue that the court should not exercise its jurisdiction. Accordingly it is submitted that since it is common ground that the application was made more than 14 days after the defendants filed their acknowledgements of service (indeed after their pleadings had been filed), the defendants need to succeed first in an application to extend the 14-day time limit in CPR r 11(4)(a) under rule 3.1(2)(a) before they can get their application for what is effectively a stay under way. I shall return to that point. The issues[6]There are as it seems to me four issues for the court to determine on this application. First, whether the defendants do need an extension of time to be able to make this application and if so, whether an extension should be granted on the principles enunciated in Denton v TH White Ltd [2004] EWCA Civ 906; [2014] 1 WLR 3926 . Secondly, whether this claim and the Swedish proceedings are "related actions" within the meaning of article 30 of the Brussels Regulation. Thirdly, if so, whether the court should exercise its discretion under article 30(1) of the Brussels Regulation to stay this claim. And fourthly, if a stay cannot or should not be granted under article 30(1) of the Brussels Regulation, whether a stay should none the less be granted under CPR r 3.1(1)(f) for case management reasons.[7]I should say at once that I indicated at the outset that, as I saw the case, the real issue was about what should happen if the Supreme Court in Sweden agrees to hear a substantive appeal. In all other situations there is a measure of common ground. If the Swedish Bong claimants do not receive permission to appeal, they are, I am told, willing to allow the English Bong proceedings to be consolidated with these proceedings and to be tried together. That course is also not opposed in that situation by the parties to these proceedings. The only point of dispute would then be about whether these proceedings should be stayed pending the Swedish Supreme Court's decision later this year.[8]I shall now proceed to set out the relevant articles from the Brussels Regulation, then the relevant factual background. I shall then say something about the most relevant authorities, and identify the main arguments of the parties, before turning to deal with the issues that require to be decided that I have already identified. The Brussels Regulation[9]Article 8(1) of the Brussels Regulation provides:
"A person domiciled in a member state may also be sued: (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
[10]Article 29 of the Brussels Regulation provides:
"(1) Without prejudice to article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established." "(3) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."
[11]Article 30 of the Brussels Regulation provides:
"(1) Where related actions are pending in the courts of different member states, any court other than the court first seised may stay its proceedings. "(2) Where the action in the court first seised is pending at first instance, any other court may also on the application of one of the parties decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. "(3) For the purposes of this article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
Outline factual background[12]On 10 December 2014, the European Commission issued its Decision relating to proceedings under article 101 of the TFEU and article 53 of the EEA Agreement, which determined that there had been a cartel infringement against certain Bong companies and the third, and eighth to tenth defendants as part of the Hamelin and Tompla undertakings.[13]On 24 July 2018, the Office Depot claimants sent a letter before action to three Bong companies threatening English follow-on proceedings.[14]On 13 August 2018, the Swedish proceedings were issued by the Swedish Bong claimants against the Office Depot claimants and a Swedish Office Depot entity (the "Swedish Bong proceedings").[15]On 17 August 2018, Office Depot issued these proceedings against 13 defendants, including the Hamelin company and some of the Tompla companies against whom the Commission Decision had been issued.[16]On 11 September 2018, Office Depot issued English proceedings against the Bong defendants (the "English Bong proceedings").[17]On 20 December 2018, the first of the defendants filed an acknowledgement of service. It is common ground that the defendants did not issue any application to dispute the jurisdiction of the English court or to stay the proceedings within 14 days of filing their acknowledgement of service.[18]On 21 February 2019, the parties to the English Bong proceedings agreed to a temporary stay pending the jurisdictional challenge by the Office Depot parties to the Swedish Bong proceedings.[19]On 8 March 2019, the Patent and Market Court of Stockholm decided that the Swedish Bong proceedings were inadmissible for want of jurisdiction. The Swedish court said in effect that article 8 of the Brussels Regulation was not engaged so that the Swedish Bong proceedings for negative declarations could only proceed against the locally domiciled Office Depot company, which was Office Depot Svenska AB, but not the non-Swedish Office Depot entities.[20]On 29 March 2019, the Swedish Bong claimants appealed to the Patent and Market Court of Appeal in Sweden relying on article 8(1) and upon Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (Case C-352/13) EU:C:2015:335 ; [2015] QB 906 .[21]On 30 April 2019, the defendants issued an application notice seeking a stay of the English proceedings under article 30 on the grounds that the Swedish Bong proceedings were a related action and on case management grounds with a view to consolidating the two sets of English proceedings.[22]On 14 June 2019, the Patent and Market Court of Appeal gave the Swedish Bong claimants permission to appeal to the Swedish Supreme Court, refused to make a reference to the Court of Justice of the European Union ("CJEU"), and dismissed the appeal.[23]On 28 June 2019, Marcus Smith J rejected the defendant's application to adjourn the hearing of this application until the Autumn of 2019 by which time the Swedish Supreme Court is expected to have decided whether to give permission to the Swedish Bong claimants to proceed with the appeal. If it does so, it is common ground that the appeal will take about a year to resolve, unless a reference on article 8 is made to the CJEU (which both sides accept is at least possible), in which case jurisdiction in Sweden would take approximately two and a half years finally to decide. It is also common ground that it is rare for the Swedish Bong defendants to have been granted permission by the intermediate Swedish court to apply to the Supreme Court of Sweden. This is said to make it more, rather than less, likely that the Swedish Supreme Court will agree to hear the case. Authorities on related actions[24]The CJEU in the Owners of cargo lately laden on board the ship Tatry v Owners of the ship Maciej Rataj (The Tatry) (Case C-406/92) EU:C:1994:400; [1999] QB 515 ; [1994] ECR I-5439 held that the concept of related actions is to be interpreted broadly. The CJEU said:
"53. In order to achieve proper administration of justice, that interpretation must be broad and cover all cases where there is a risk of conflicting decisions even if the judgments can be separately enforced and their legal consequences are not mutually exclusive." "55. The objectives of the third paragraph of article [30 of the Brussels Regulation] however, is as the Advocate General noted in his opinion (para 28) to improve co-ordination of the exercise of judicial functions within the community and to avoid conflicting and contradictory decisions even where the separate enforcement of each of them is not precluded."
[25]Lord Saville of Newdigate in Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32 , 40–41:
"In the fourth place I take the view that to attempt to analyse actions so as to distinguish between different kinds of issues would be likely to add to the complexity of applications under article 22 and thus to the expense and delay in dealing with them. Instead of simply considering whether the actions were so closely connected that it was expedient that they should be heard and determined together to avoid the risk of conflicting decisions, the parties and the court would have to embark upon a sophisticated and difficult exercise of legal analysis, made more complicated by the fact that the court would be dealing not with actual judgments, but with what judgments yet to be given would be likely to contain. It must be borne in mind that article 22 is concerned not with the substantive rights and obligations of the parties, but with the ancillary and procedural question as to where in the Community those rights and obligations should be heard and determined." "
For these reasons I am of the view that there should be a broad common sense approach to the question whether the actions in question are related bearing in mind the objective of the article applying the simple wide test set out in article 22 and refraining from an over-sophisticated analysis of the matter." Authorities on the inconsistent judgments[26]The CJEU in the Hydrogen Peroxide SA case held, at para 25:
"It must therefore be considered that determining separately actions for damages against several undertakings domiciled in different member states which contrary to EU competition law participated in a single and continuous cartel may lead to irreconcilable judgments within the meaning of article 6(1) of Regulation number 44/2001."
[27]Para 37 of the judgment of the Court of Appeal in Research in Motion UK Ltd v Visto Corpn [2008] EWCA Civ 153 ; [2008] 2 All ER (Comm) 560 suggested that the effect of what is now article 30 was not entirely mechanical. It continued, "It requires an assessment of the degree of connection, and then a value judgment as to the expediency of hearing the two actions together (assuming they could be so heard) in order to avoid the risk of inconsistent judgments. It does not say that any possibility of inconsistent judgment means they are inevitably related. It seems to us that the article leaves it open to a court to acknowledge a connection or a risk of inconsistent judgments but to say that the connection is not sufficiently close, or the risk is not sufficiently great to make the actions related for the purposes of the article. Mechanics do not, for once, provide a complete answer." Authorities on the discretionary exercise of the power to stay[28]The defendants place primary reliance on the judgment of Lord Clarke of Stone-cum-Ebony JSC in Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG (The Alexandros T) [2013] UKSC 70 ; [2014] Bus LR 873 , where Lord Clarke of Stone-cum-Ebony JSC said the following, at para 92:
"In Owens Bank Ltd v Bracco (Case C-129/92) [1994] QB 509 , paras 74–79, Advocate General Lenz identified a number of factors which he thought were relevant to the exercise of the discretion. They can I think briefly be summarised in this way. The circumstances of each case are of particular importance but the aim of article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay. Indeed, he appears to have approved the proposition that there is a strong presumption in favour of a stay. However, he identified three particular factors as being of importance: (1) the extent of the relatedness between the actions and the risk of mutually irreconcilable decisions; (2) the stage reached in each set of proceedings; and (3) the proximity of the courts to the subject matter of the case. In conclusion the Advocate General said, at para 79, that it goes without saying that in the exercise of the discretion regard may be had to the question of which court is in the best position to decide a given question."
[29]It is useful also to consider the opinion of Advocate General Lenz in Owens Bank Ltd v Bracco (Case C-129/92) EU:C:1993:363 in a little more detail. He said the following at paras 75–77 of his opinion:"75. The decision required in the context of article 22 of the Convention is a discretionary decision . It goes without saying that the circumstances of each individual case are particularly important here. The national courts must bear in mind that the aim of this provision is 'to prevent parallel proceedings before the courts of different contracting states and to avoid conflicts between decisions which might arise therefrom', as the court stated in its judgment in Overseas Union Insurance . It would therefore be appropriate in case of doubt for a national court to decide to stay its proceedings under article 22."76. Furthermore, there are three factors which may be relevant to the exercise of the discretion vested in national courts by virtue of article 22, but this does not mean that other considerations may not also be important: — the extent of the relatedness and the risk of mutually irreconcilable decisions; — the stage reached in each set of proceedings; and — the proximity of the courts to the subject matter of the case."77. Clearly, the closer the connection between the proceedings in question, the more necessary it would appear for the court second seised to stay its proceedings. If other factors are of some relevance to the proceedings pending before the court first seised, it may be appropriate for the court second seised not to stay its proceedings. It would also appear sensible, for example, for a court to decline to stay its proceedings on the grounds that only an interim measure can be taken in those proceedings and that there is therefore no risk of irreconcilable decisions. The more the proceedings are related, however, and the greater the risk of the courts arriving at irreconcilable decisions, the more likely it will be that the court second seised should stay its proceedings in accordance with article 22. (Emphasis in original.)[30]At the end of para 75 of Mr Lenz's opinion he inserted the following footnote, "See in this regard the judgment of the High Court (Ognall J) of 31 January 1990 in the case of Virgin Aviation Services Ltd v CAD Aviation Services [1991] International Litigation Procedure 79, in which the court held that there was a strong presumption in favour of allowing an application for a stay ('signifies that the strong presumption where an application is made for a stay, lies in favour of the applicant'—loc cit p 88)."[31]It may be noted that the CJEU agreed with Advocate General Lenz in the Owens Bank Ltd case. It did not however have to answer the third question that was before the court. That third question was:
"If the court in a contracting state has the power to stay proceedings under the 1968 Convention on the grounds of lis pendens, what are the Communautaire principles which should be applied by a national court in determining whether there should be a stay of proceedings in the national court second seised?"
The CJEU chose to say nothing about that question. Therefore, it may seem that the court did not engage with the part of the opinion provided by Advocate General Lenz that is relevant to the decision in this case. Authorities on the applicability of CPR Pt 11 to stays[32]Ms Demetriou relied in particular on paras 114, 121, and 124 of Lord Clarke's judgment in the Starlight Shipping Co case [2014] Bus LR 873 , as showing that an application for a stay under article 30 was to be treated as an application under CPR Pt 11. Lord Clarke JSC said this in those paragraphs:
"114. The position under CPR Pt 11 is different from the position under the former Rules of the Supreme Court, under which the equivalent rule, namely RSC Ord 12 rule 8(1), did not include an application for a stay. By contrast CPR r 11(1)(b) applies to an application for an order that the court should not exercise its jurisdiction. An application for a stay is precisely that. An application for a stay under article 27 is thus an application within CPR r11(1)(b). The applicant must file an acknowledgment of service and must make an application within 28 days. The respondents did not do that. Nor did they seek an extension of time to so do within the CPR. It is arguable that the effect of CPR r 11(5) is that their failure to do so means that they are treated as accepting that the court both has jurisdiction and that it is free to exercise it. The difficulty is that the wording of paragraph (5) may only relate to the existence of the jurisdiction rather than the exercise of it. This point was left open in Texan Management Ltd v Pacific Electric Wire & Cable Company Ltd [2009] UKPC 46 at [68]–[69]." "121. In my judgment, there is no sensible basis upon which it can be said that the time limit under CPR r 11(4), which can in an appropriate case be extended under CPR r 3.1(2)(a), is contrary to EU law. The time limit satisfies the principle of equivalence because it is the same rule that applies in all cases. It fulfils a legitimate aim, namely making sure that points going to whether the proceedings are to be tried on their substantive merits in England are taken promptly and without unnecessary costs. It satisfies the principle of legal certainty because parties need to know where they stand. The absence of a time limit would allow a litigant to take the point years afterwards. Moreover, the time limit does not render the right to apply for a stay under article 27 (or article 28) impossible or excessively difficult to exercise. It allows sufficient time for the point to be raised, especially given the express rule permitting an extension of time in appropriate cases." "124. It seems to me that rather different considerations apply to article 28 and that the Court of Appeal were entitled to consider article 28 as part of the appeal from the decision of the judge who had considered it in detail."
The arguments of the parties[33]I encouraged the defendants to spend most of their time in oral argument on the discretion point rather than on the related actions point, indicating that it seemed to me that that was, as I have said, the central area of dispute. Mr Flynn was content to rely on his written arguments in support of his claim that there were related actions engaging article 30.[34]Mr Flynn submitted that the primary aim of article 30 was to avoid conflicting judgments, though I may note that Lord Clarke in para 92 of Starlight Shipping Co [2014] Bus LR 873 said that its aim was to avoid parallel proceedings and conflicting decisions. Mr Flynn relied on the recitals to the Parliament and Council Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union (OJ 2014 L349, p 1) ("the Damages Directive") as showing in particular by recital 44 that national courts should take due account of any related actions and judgments in relation to issues such as passing on which will arise in these proceedings and in the Swedish proceedings.[35]So, Mr Flynn argued that the Swedish litigation will help the English court ultimately to resolve the same issues of both overcharge and passing on as arise in both sets of litigation. And Mr Flynn argued that the delay in deciding jurisdiction in Sweden and the delay in resolving the substantive issues in Sweden (perhaps an additional one to two years) was worthwhile and to the defendants' commercial benefit because they would not incur the cost of defending those issues in this jurisdiction in the meantime. Applying Advocate General Lenz's three tests, he said that each was neutral or pointed towards a stay which was anyway the presumption.[36]Ms Demetriou argued there was no presumption in favour of a stay, only a statement that in the case of doubt it was appropriate to grant a stay. She submitted that the English court would gain nothing from the Swedish decision; each turned on different facts and expert evidence. Moreover, the Swedish court may very well never try the substance of the matter as there are limitation issues raised by Bong there which do not arise here.[37]Moreover, the negative declaration sought may well not even require the calculation of loss. If Bong does badly on the merits in Sweden, no doubt the defendants here, submits Ms Demetriou, will seek to disassociate themselves from that decision. By the time the Swedish case is concluded in perhaps 2023 or 2024, it will be 16 years since the cartel ended and evidence will be hard to obtain. First issue: Do the defendants need an extension of time to be able to make this application and if so, should an extension be granted on the principles enunciated in Denton?[38]In my judgment this issue proceeds on something of a misapprehension. As the application notice dated 13 April 2019 shows, this is an application for a stay of these proceedings pending final determination of the Swedish proceedings. It is not really an application under CPR r 11(1)(b) at all. CPR r 11(1)(b) is about defendants wishing to argue that the court should not exercise the jurisdiction that it has over them. The defendants here do not dispute that eventually, whatever happens in Sweden, the English court will need to exercise its jurisdiction over them to determine the dispute that has already been pleaded at length.[39]Here the defendants seek a temporary stay of the proceedings. That is a rather different matter from a permanent stay. There is a distinction in my judgment between an application under article 29 which is likely to result in the declination of jurisdiction in favour of the first seised court under article 29(3) and an application under article 30 which may only result in a limited interruption to the proceedings.[40]When one looks carefully at the dicta of Lord Clarke in the Starlight Shipping Co case at paras 114 and 121, they seem to be primarily directed at an application for a stay under article 29, rather than a stay under article 30. In these circumstances, I would hold that this is not an application in which the defendants needs to obtain an extension of time to the 14-day time limit in CPR r 11(4)(a) and CPR r 3.1(2)(a) before they can proceed.[41]In my judgment this application could have been made at any stage of the proceedings. Plainly the later it is made, the less likely it is to succeed and the principles that I have set out in relation to article 30 will still be applied. But I do not think that the delay in making the application is any more than one of a range of factors that the court can take into account in deciding the primary issue, namely whether a stay should be granted under article 30.[42]If, however I am wrong about the application of CPR Pt 11 and CPR r3.1(2)(a), I would clearly have held that Mr Flynn could not obtain an extension of time on Denton principles. The first stage is to identify and assess the seriousness and significance of the failure to comply with the time limit for making the application. The delay here was serious and significant. The second stage is to consider why the default occurred, and no excuse has been provided on the evidence for the delay save the complexity of the proceedings and the international elements. The third stage is to evaluate all the circumstances of the case so as to enable the court to deal justly with the application including consideration of the need(a) for litigation to be conducted efficiently and at proportionate cost, and(b) to enforce compliance with rules, practice directions and orders (known as "factors (a) and (b)"). Undertaking that final third exercise leads in my judgment to the clear conclusion that time would not have been extended. None the less, since I consider that the Denton principles do not apply, I will go on to consider the other issues raised by this application. Second issue: Are this claim and the Swedish proceedings related actions within the meaning of article 30 of the Brussels Regulation?[43]It seems to me that I can assume, without finally deciding, that these are related actions for the purposes of this application. I would have had to apply the broad common sense approach advocated in the Tatry case and the Sarrio SA case. Had I needed to do that it seems to me that this was an action that Office Depot would have brought against all the cartel participants in one proceeding here in England, had Bong not pre-empted that course. That certainly amounts to some relatedness. Moreover, the liability of all the defendants including Bong is established by the Commission Decision. Issues of pass-through will very likely turn on Office Depot's business model rather than the precise details of infringements by each defendant. Issues of overcharge may involve evidence about the effect of cartel pricing in Germany and France in relation to all the defendants.[44]I accept, though, that Ms Demetriou can point to competing factors like the special limitation issues in Sweden, the investigation that will be needed in Sweden into Bong's sales rather than the defendants' sales, and that the factual decisions in Sweden will not bind the English court. But, on balance, it seems to me there is at least a strong argument that the Swedish proceedings and these proceedings are related actions. Whatever I would have decided on that point, I have to consider the matter as a question of discretion and the issues of relatedness come in there, as has been seen from the dicta of Advocate General Lenz to which I have referred.[45]Accordingly, on the assumption that I think I am justified in making, I move on to consider the discretionary position. Third issue: If so, whether the court should exercise its discretion under article 30 (of the Brussels Regulation to stay this claim).[46]This, as I started this morning by saying, is the nub of this application. I have considered carefully the three tests promulgated by Advocate General Lenz.[47]As regards the extent of the relatedness between the actions and the risk of mutually inconsistent decisions, I take the view that first the actions are not completely the same because of the different issues including limitation raised in Sweden. Secondly, whilst pass-through is an issue that will require looking in both cases at Office Depot's business models, overcharge will require some individual intention to the defendants. Thirdly, the risk of inconsistent decisions is low because the claims will be based on factual and expert evidence on the substantive questions. It is true that the Swedish court may decide some matters of legal principles that will be binding, but the English court can follow the guidance in the recitals to the Damages Directive.[48]The second factor seems to me however to be the most important one in this particular case, namely the stage reached in each set of proceedings. The stage in the Swedish proceedings is a long way behind these. It will be between one and two and a half years before jurisdiction is resolved there, two courts already having refused jurisdiction. It will be perhaps between three and five years before the substantive litigation in Sweden is resolved, if it ever gets off the ground.[49]Meanwhile, Office Depot's claims against the defendants here will be becalmed if the stay is granted. If instead they proceed, they will be completed in what is likely to be less than two years—with a three to four week trial that both sides agree will be required. It would indeed be justice denied for Office Depot to be required to start these proceedings again against the defendants three to five years down the line, many years after the cartel ended with all the evidential implications of that time lag. In my judgment, the exceptional circumstances of this case make it highly undesirable for the proceedings to be delayed here.[50]Mr Flynn was unable to point to any commercial advantage for his client in making this application, beyond mere delay. If the defendants were to be bound by some legal decision in Sweden, that might well be to their disadvantage as they would not have been heard on those points in Sweden. Had Bong, one of the cartelists, not brought its pre-emptive proceedings, there would have been only one piece of litigation here against all the cartelists that Office Depot wished to sue.[51]It is Bong that has created the reality of bifurcated proceedings presumably to achieve some disruption to the flow of the litigation. Bong had it within its power to achieve the objective of article 30, namely to avoid parallel proceedings and the risk of conflicting decisions. It chose another course. The defendants will gain no advantage by waiting years to start this litigation in earnest. This action will have to go ahead however long it is delayed by Bong's tactical manoeuvres.[52]As to the third test, namely the proximity of the courts to the subject matter of the case, the case in Sweden will not involve sales in Sweden but only in other European countries including the UK. The case in the UK will involve European sales. It seems to me that this fact points, if only weakly, against a stay being granted.[53]Finally, I have to consider the nature of the test that I am to apply. Looking at Lord Clarke's decision in Starlight I do not think that he was saying that he thought there was a presumption in favour of a stay. He was simply recording a reference to footnote 85 in Advocate General Lenz's opinion that referred to Ognall J's judgment in the Virgin Aviation Services Ltd case. The concept of there being a stay in the case of doubt is, I think, quite different from the concept of a broad presumption in favour of a stay. Both cannot be correct. Advocate General Lenz was undoubtedly advocating the former and Lord Clarke was following his approach.[54]In any event, whichever is correct, there is no doubt here that any presumption would be rebutted. In my judgment, the grant of a stay would be contrary to justice in that it would delay unreasonably the resolution of proceedings that can only be tried in England and already relate to events many years ago. Fourth issue: If a stay cannot or should not be granted under article 30(1) of the Brussels Regulation, should a stay none the less be granted under CPR r 3.1(1)(f) for case management reasons?[55]I am quite satisfied that no stay should be granted on case management grounds. As Ms Demetriou submits there is a need to obtain disclosure and a case management conference as soon as possible. And all that can be done before the Swedish Supreme Court decides on whether to accept the appeal. If it does so, then the action can proceed to an English trial without Bong's participation. If it rejects the appeal, the English Bong claim can be consolidated with these proceedings and the two can proceed to trial together. There is no basis for an interim delay.[56]I entirely endorse what the Court of Appeal said in paras 354–358 in Sainsbury's Supermarkets Ltd v MasterCard Inc [2018] EWCA Civ 1536 ; [2019] Bus LR 198 , as to the desirability of competition claims arising from the same facts being heard together. I would urge the Bong parties to consider carefully whether they would not now be better off defending a single claim alongside the defendants in this claim rather than persisting in the steps they have taken to cause parallel proceedings and any risk there may be of inconsistent decisions. I accept that the defendants that Mr Flynn represents are not responsible for Bong's actions but there is much to be said for one consolidated action following on from the Commission decision.[57]For the reasons I have sought briefly to give somewhat late in the afternoon, I will dismiss this application.

Cited in 2 later judgments