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England and Wales High Court (Commercial Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Mercedes-Benz Group AG & Anor v Continental Teves UK Ltd & Ors [2023] EWHC 1143 (Comm) (12 May 2023) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2023/1143.html Cite as: [2023] EWHC 1143 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) MERCEDES-BENZ GROUP AG (2) MERCEDES-BENZ AG |
Claimants |
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- and – |
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(1) CONTINENTAL TEVES UK LIMITED (2) CONTINENTAL AG (3) CONTINENTAL AUTOMOTIVE GMBH (4) CONTINENTAL AUTOMOTIVE TECHNOLOGIES GMBH (5) ZF AUTOMOTIVE UK LIMITED (6) ZF FRIEDRICHSHAFEN AG (7) ZF ACTIVE SAFETY GMBH (formerly known as LUCAS AUTOMOTIVE GMBH) |
Defendants |
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Marie Demetriou KC and Matthew Kennedy (instructed by Freshfields Bruckhaus Deringer LLP) for the First to Fourth Defendants
Josh Holmes KC and James Bourke (instructed by Travers Smith LLP) for the Fifth to Seventh Defendants
Hearing date: 27 April 2023
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Crown Copyright ©
Mr Justice Butcher :
The Parties
The Cartel and the Decision
'The collusive conduct consisted of bilateral exchanges of competitively sensitive business information between the three suppliers. With the aim of coordinating their market conduct relating to [Mercedes] and BMW, the participants exchanged information regarding their willingness to accept [Mercedes'] 3-year policy and BMW's 4-year-policy clause, respectively, and discussed the purchasing terms and conditions of [Mercedes] and BMW. The exchanges concerning [Mercedes] also related to raw material cost compensation, cost transparency and volume reductions.'
'(36) In the Union, braking systems are produced notably in Germany, France, United Kingdom, Poland and the Czech Republic. The customers concerned are large car producing multi-nationals which are present across the whole of the EEA.(37) The geographical scope of [the relevant] infringements is EEA-wide, given that the anti-competitive contacts concerned the supply of certain parts of braking systems for passenger cars to production facilities of [Mercedes] [and] BMW in the EEA, no matter where exactly in the EEA these facilities were located.'
The Commencement of the Present Action
'A claim is made against a person ("the defendant") on whom the claim form has been … served (otherwise than in reliance on this paragraph) and –(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.'
The Legal Principles
(1) The question in both service in and service out cases is to identify the forum in which the case can be suitably tried for the interest of all the parties and the ends of justice (480G).
(2) In service in cases, the burden is on the defendant to show that England and Wales is not the natural or appropriate forum for the trial and that there is another available forum which is clearly or distinctly more appropriate than England and Wales. If the court is satisfied that there is another available forum which is prima facie the appropriate forum, the burden shifts to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nonetheless take place in England and Wales. This is often described as the 'second stage' of the Spiliada approach.
(3) In service out cases, the burden of proof is on the claimant not just to show that England and Wales is the appropriate forum for the trial of the action, but that this is clearly so.
(4) In determining which of the competing fora is the appropriate forum, the court will look to see what factors point in the direction of this, and of the other forum. As Lord Goff put it (at 477G-478B):
Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Société du Gaz case, 1926 SC (HL) 13 concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Credit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.
(5) As a general rule, the court will not be deterred from granting a stay or refusing permission to serve out simply because the claimant will be deprived of a 'legitimate personal or juridical advantage', such as damages on a higher scale or a more generous disclosure regime, unless it is shown through cogent evidence that there is a risk that substantial justice will not be done in the natural forum.
The Parties' respective positions
Analysis
Available forum
'The defendants attack the jurisdiction of the UK High Court as the facts of the case are German and can be judged much more efficiently by the German courts. For the UK claim, the claimant seeks to artificially create such a nexus by co-suing a Continental Group company based in the UK. However, this company is not the addressee of the decision and was – presumably for good reason – not included in the German declaratory action'.
Then, in paragraphs (46-47) it is said that the action (ie the German action) 'is already inadmissible due to other lis pendens in the UK.'
The Factors pointing in favour of the different jurisdictions
The identity of the parties and where they reside or carry on business
Where the infringements occurred
Where competition was restricted
Where damage was suffered
The Contractual Documents
The Issues in the Action and the Relevance of the Settlement Decision
Convenience of factual witnesses, Location of documents; Expert evidence
Applicable Law
Conclusions on forum conveniens
Disposal