England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Rolls Building
		6th May 2014

MR. JUSTICE ROTH:

1. This is the latest in a series of interim judgments delivered in a very substantial damages claim arising from a grave infringement of Article 101 TFEU (formerly Article 81 EC) which is now listed for trial to commence on 9^th June. It concerns applications by the claimant for further information pursuant to CPR Part 18. Indeed, this is not the first time in this action that I have had to consider an application under Part 18: see my judgment of 4^th April 2012 [2012] EWHC 869 (Ch), to which it will be necessary to refer.
2. The case arises from the European Commission Decision in Case Comp/F38.899 - Gas Insulated Switchgear ("GIS") issued on 24^th January 2007 ("the Decision"). The Decision was addressed to 20 companies and found that they had been engaged in an extensive and sophisticated cartel regarding the supply of GIS. GIS is heavy electrical equipment used to control energy flow in electricity grids and is therefore used as a major component for power substations.
3. The Decision found that the cartel lasted, with variation in the involvement of some of the participants, over a period of some 16 years from 1988 to 2004. The Decision imposed fines in the total amount of over €750 million, the largest set of fines imposed as at that date in respect of a single cartel. Various addressees of the Decision appealed and as a result there was some amendment by the European courts to the duration of individual companies' participation, and in consequence to the level of fines, but as to the overall substance of the cartel, the appeals to the General Court, and thereafter to the European Court of Justice, have been dismissed. The most recent judgments of the ECJ were handed down on 10^th April 2014.
4. There are now 22 defendants to the claim. Some were addressees of the Decision; others are subsidiaries of addressees of the Decision. The relationship of the defendants is complicated by various transfers of companies and businesses, often with changes of name since both the period of the cartel and the Decision.
5. The defendants now fall into four corporate groups, although that description requires some refinement. For present purposes it is sufficient to summarise their composition in broad terms. The position appears to be as follows:

(1) the ABB Group: that comprises the 1^st to 5^th defendants.

(2) Areva: the 10^th defendant.

(3) the Alstom Group: that comprises the 6^th to 9^th defendants, which throughout were part of Alstom -- and also the 11^th defendant and 22^nd and 23^rd defendants, which were previously subsidiaries of Areva and are referred to as the Alstom Grid companies. Moreover, the GIS business of GEC became part of Alstom either during or after the cartel period.

(4) the Siemens Group: that comprises the Siemens companies which have been part of the Siemens Group throughout: the 13^th, 16^th, 18^th and 21^st defendants; and also companies which at the time or during the cartel period were wholly independent of Siemens and part of VA Tech Reyrolle Group: the 14^th to 15^th defendants, the 17^th defendant and the 19^th to 20^th defendants. I shall refer to the first group as "Siemens", to the second group as "VA Tech/Reyrolle" and to all of them together as "the Siemens defendants".

6. The claimant ("NGET") owns and maintains the high voltage electricity system in England and Wales and operates the system across Great Britain. It alleges that it suffered substantial losses by reason of overcharges resulting from the illegal cartel. The quantification of damages, as most recently calculated, amounts to well over £200 million, including interest.

The Decision

7. This is what is often referred to as a "follow-on claim", relying on the infringement in the Decision. It will be necessary to return to consider what that expression means, but it is relevant to refer to the findings in the Decision concerning the cartel as a whole and then more specifically the UK market in which all of NGET's activity is conducted.
8. The Decision includes confidential redactions. By order of 17^th May 2012, and pursuant to the ECJ judgment in Pfleiderer, this court ordered disclosure of some of the redacted parts of the Decision. At present, sight of those passages remains restricted to a confidentiality ring and I therefore do not quote from them directly, but they have been taken into account where relevant for the purpose of this judgment.
9. The Decision found that the infringement covered at least the whole territory of the EEA. Paragraph 235 states that the undertakings subject to the proceedings:

"agreed on allocating the worldwide GIS market (except for the USA, Canada and, for some time, Russian China) amongst all cartel members on the basis of quotas largely reflecting historic market shares and according to the following underlying principles".

10. One of those principles concerned European "home countries". Paragraph 238 states:

"…the European countries where the European cartel members had their stronghold (France, Germany, Austria, Switzerland, Sweden, Italy, United Kingdom) received an equivalent treatment (also considered as 'home countries'). For the same reasons, each of those territories was not reserved to all European companies in general but to the relevant 'home producers' ... Accordingly, the projects allocated within those territories were not reflected either in the joint European global quota or in the individual quotas of either global or European projects in [the specific cartel master agreements]".

11. Further details regarding home countries is provided at paragraphs 133 to 134 of the Decision, and paragraph 138 gives the example of a violation of the agreement to respect home markets through activity by Siemens in the United Kingdom at a certain time. The confidential parts of the Decision evidence some other discussion regarding protection of the UK market, and that by nature of certain countries being home markets discussion about them would be at a more local level.
12. A summary of the overall operation of the cartel is set out in paragraph 281:

"The infringement showed throughout a consistent pattern of collusive contacts aimed at restricting competition: (a) the object of the infringement remained the same; (b) projects were notified, discussed, allocated; (c) contacts and meetings took place at both management and working level; (d) tenders were manipulated by organising bids and supporting tenders; (e) price competition was avoided for projects not suitable for allocation; (f) licensing of 'uncontrolled' outsiders was avoided; (g) confidential information was regularly exchanged; (h) compensation mechanisms were applied and retaliation mechanisms were put in place; (i) measures to conceal the cartel were used; (j) Japan and the European home countries were reserved, while projects one outside home countries were counted in the relevant quotas; and (k) the individuals and companies participating in the cartel showed a high degree of continuity".

13. It is clear that the Decision found that the reservation of the United Kingdom as a home market was part of the overall cartel. That finding was upheld by the General Court after careful review of the evidence when challenged by Siemens on appeal: see case T-110/97, judgment of 3^rd March 2011.
14. However, there is relatively little detail in the Decision as to how the home market aspect of the cartel was implemented or operated. It was sufficient for the Commission's purpose to establish that this was part of the cartel and it was not necessary as part of that exercise to look into the detail. It is also clear that as a very sophisticated cartel operated by major international companies over a long period, the participants went to elaborate lengths to conceal and disguise their unlawful activities, using code words, secret meetings and the like: see paragraphs 170 to 172 of the Decision.

The applications

15. The Part 18 requests for further information on which the court has to rule are contested by the Alstom defendants and the Siemens defendants. The requests essentially fall into three broad parts: first, the claimant seeks details of the individuals involved in the operation of the cartel in the UK; second, it seeks explanation of certain specific documents and answers to targeted questions; third, it seeks a response to Annex A to the requests, first served on 31^st January 2014 and then amended on 2^nd April 2014. Annex A sets out NGET's best understanding, by reference to particular documents and witness statements, of how it says the cartel operated, for the most part, in the United Kingdom.
16. As I indicated at the outset, this is not the first time that the issue has arisen of Part 18 requests seeking an explanation from the defendants as to how the cartel operated. As long ago as October 2011, NGET made applications pursuant to Part 18 for further information as against ABB and Siemens, albeit in more limited terms as disclosure was then at an early stage. No application was then made as against Alstom since at that time it was relying on the French blocking statute as preventing it from giving disclosure or information in these proceedings.
17. I refer to part of the requests issued in 2011. Question 1(b) sought the names of the main individuals acting on behalf of the company regarding the implementation of the cartel in the United Kingdom. Question 4 included the following:

"Please state, insofar as this is within the knowledge of the individuals still within your employment who took part in the cartel in the UK, how the 'home country' cartel arrangement in the UK was operated in the relevant period, by explaining and setting out ...

(b) to which particular cartel members the supply to UK customers were reserved, and for which period and in what shares or proportions or amounts;

(c) how these shares or proportions or amounts were calculated, based on different elements of GIS;

(d) how the cartel arrangement in the UK was implemented to ensure that each relevant cartel member supplied no more than the shares or proportions or amounts allowed;

(e) in particular (without prejudice to the foregoing) having regard to [a particular document that is then identified] and to the methodology referred to briefly in recital 165 of the Decision, what pricing or weighting formulae were used (and explain precisely how they were used) in order to value different elements of GIS, such as 400 KV bays or 132 KV bays, and to value GIS projects as a whole;

(f) how the cartel arrangement in the UK was monitored to ensure that each relevant cartel member supplied no more than the share or proportions or amounts concerned and what 'compensation' arrangements were applied under the cartel rules".

18. ABB and Siemens both strongly objected at that time to the application for an order to respond to the request to which I have referred. They did not resist the provision of a response to the request seeking names of the main individuals involved in the cartel as a whole and whether those individuals were still in their employment. Most of those names in any event are set out in a confidential annex to the Decision, of which I ordered disclosure. It is right to record that Alstom did not participate in that argument as no application was made against it.
19. The competing submissions are summarised in my judgment of 4^th April 2012:

"68. Both ABB and Siemens refused to answer the other questions in the Part 18 Request. They both provided evidence from the partners in their respective solicitors that the requested information is not at present in the knowledge of their clients. That is explained on the basis that neither the amount by which the cartel may have raised prices nor the operation of the cartel in the United Kingdom was a focus of the Commission's investigation. Moreover, in Siemens' case, none of the relevant individuals are still in its employment, which explains its inability to provide any answer to Question 2. The solicitors to ABB and Siemens state that at this stage of the litigation, with no date yet set for witness statements, they have not yet conducted full interviews with all the potential witnesses and that in those circumstances, if they had to provide this information now it would be a burdensome exercise.

69. Moreover, Mr. Hoskins [counsel for ABB] and Ms. Demetriou [counsel for Siemens] submitted that it would be entirely inappropriate and premature to require the defendants to provide such information now. The defendants are entitled to set out their evidence on the matters in issue in their witness statements and the Part 18 procedure should not be used to force a defendant in adversarial litigation to provide what amounts to fragmentary witness evidence at the behest of the claimant at an early stage in the proceedings.

70. For NGET, Mr. Turner referred to the opaque nature of many of the pre-existing documents, as mentioned above. He submitted that disclosure had provided little information on the operation of the cartel in the United Kingdom or the effect which the participants thought the cartel was having on price. In the nature of cartels, discussion of the latter is likely to have occurred. He said that some three years since the litigation started, NGET has therefore made little progress in quantifying its damages. The defendants should by now have taken steps to gather this information and equality of arms means that they should provide it to the claimant so that the action could progress".

20. After referring to CPR Part 18 and authority, I refused to make the orders sought, save as against Siemens in respect of the explanation of one document that originated from them. Essentially, I accepted the argument of counsel for ABB and Siemens that it would be premature and a disproportionate burden on them to require them to provide the requested information in advance of their service of witness statements: see paragraph 79 of the judgment.
21. That is the background to the present application. The exchange of witness statements was subject to some delay and occurred only in November-December 2013. After digesting the witness statements from the defendants, NGET formed the view that they clearly did not address many of the relevant documents which appeared to indicate how the cartel may have operated in the United Kingdom, and so it served fresh requests on ABB, Siemens and on Alstom. The response by ABB, as subsequently clarified, gives rise to no issues and thus no application is pursued against ABB, although it will be necessary to explain how the request as regards Annex A will be addressed. However, the responses of the Siemens and Alstom defendants refused to answer, and strongly objected on principle, to many of the questions. It is necessary to address the objections of principle and then look at the detailed requests made.
22. For the Siemens defendants, Mr. Brealey stresses that this is a follow-on claim in which, as previous judgments in the action have recorded, the only issues are causation and quantum. He says that not to minimise the complexity of those issues (and they could hardly be more complex than in the present action) but to emphasise that the only infringement of competition law relied on is that found by the Commission in the Decision. By contrast, he submits that what is being sought by way of NGET's Part 18 requests does not go to the infringement found by the Commission. He readily accepts that NGET would not be barred from claiming for a wider or different infringement, since this is an action in the High Court as, by contrast with the position in the Competition Appeal Tribunal where jurisdiction is strictly limited by the Competition Act 1998, s.47A. But any such wider claim would fall outside NGET's present pleading and so require permission to amend, and that at a very late stage in the proceedings.
23. As regards VA Tech/Reyrolle, the position is that the Decision finds that under the cartel they were one of the companies to which the UK was reserved as a home market, but so also was GEC/Alstom. There is no finding that projects were allocated as between those two companies or groups within the United Kingdom. Such an arrangement, argues Mr. Brealey, would amount to a distinct infringement, which was not part of the Decision.
24. As regards Siemens, there is no finding at all that it was a home producer in the UK. On the contrary, the Decision indicates that Siemens were supposed to keep out of the UK. Thus, Mr. Brealey submits that requests based on an assumption that there was an allocation of projects to Siemens, or that Siemens participated in anti-competitive arrangements concerning the UK projects, amounts to a wholly distinct set of allegations not based on the Decision.
25. As I observed during the hearing of these applications, the proper interpretation of the Decision is a matter for final resolution at trial after full argument. Nonetheless, to address these submissions I think it is both appropriate and necessary to proceed on the basis of what I consider to be a strongly arguable case. Before doing so, I should make three preliminary observations.
26. First, it is clear that this court, as a national court, cannot take a decision or make a finding that it is contrary to the decision of the Commission: Article 16 of Regulation 1/2003. Secondly, the expression "follow-on action" as used for present purposes is not a term of art. The High Court is not concerned with the difficulties that have been shown to arise under s.47A of the Competition Act and which will be swept away if the Consumer Rights Bill currently before Parliament becomes law. Thirdly, a Commission decision concerning a cartel is almost always concerned with establishing the infringement, and thus what cartel arrangements were entered into, by whom and over what period. It is not particularly concerned with an elaboration of the consequences. Therefore, it is unsurprising that much of the detail as regards the actual operation of the cartel is not the subject of findings in the Decision. That is particularly the case where the cartel was of the complexity, scale and scope of the GIS cartel. The UK market was only one of several home markets and the "home market" aspect in general was only one of several elements comprising this extensive cartel. That is the context in which discussion in the Decision, specifically of the operation of the cartel in the UK home market, is extremely brief.
27. It follows, in my view, that any claim for loss caused in the UK by the cartel will therefore involve, as part of the determination of causation, an assessment of how the cartel found by the Commission operated in the UK. I accept Mr. Turner's submission that there is a fundamental distinction between, on the one hand, putting forward a case that is inconsistent with a Commission decision, which is not permitted, or, I would add, alleging some other infringement of competition law aside from the cartel that is the subject of the Decision; and, on the other hand, making allegations that are a development of the findings in the Decision as to how the cartel, which is the subject of the Decision, was implemented in practice, although the discussion of that aspect in the Decision is extremely brief.
28. In my judgment, considering the Decision as a whole and in light of its surrounding circumstances, it is strongly arguable that the Decision found that the UK home market arrangement involved a sharing of the internal UK market by some form of allocation. I reach that view for several reasons.
29. First, referring to exceptions of home market countries from the European producers' global quota used as one of the cartel mechanisms, the Decision states (at paragraph 119):

"They also allowed for the preservation of prior arrangements in Europe among the European participants concerning GIS projects, where also so-called 'home countries' were reserved for one, sometimes two or three companies with a traditional stronghold therein. In principle, those projects were not subject to the notification and allocation mechanisms applicable between the Japanese and the European groups of cartel members but only to the notification and allocation mechanisms applicable amongst the European cartel members" [my emphasis].

30. On a fair reading, "those projects" in the second sentence appear to refer expressly to the GIS projects in home countries described in the previous sentence. That is also consistent with paragraph 126, which refers to the "specific allocation rules" operating in the territories excluded from the overall quotas; and paragraph 238, which refers to "projects allocated within those territories", a reference to the home countries.
31. Secondly, this analysis is supported by the description of the cartel in a leniency statement submitted to the Commission by ABB, which is conveniently referred to by the General Court in its judgment dismissing the appeal brought by Siemens in Case T110/07, at paragraph 62:

"Lastly, in its statement of 4^th October 2005, ABB admitted the existence of a system of 'home countries' according to which, if there was only one producer in those countries, it was the sole owner of the projects and, if there were a number of producers, they shared the projects among themselves".

32. Thirdly, the Commission is primarily concerned with arrangements having an effect on trade within the EEA. When assessing the gravity of the infringement, the Decision expressly relies on the participating undertakings' turnover across the whole of the EAA, including therefore the so-called home countries (see paragraph 478). Not only the UK but also Germany, France and Italy were home countries where the Decision records that the market was reserved to two or more home producers. It would be a major criticism of a Decision which found that European companies went to elaborate lengths to share between them most of the world markets, excluding only North America, if it failed to make clear that such potentially valuable markets within the EAA as the UK, Germany, France and Italy, were left free for open and unrestricted competition as between the handful of home producers in each case. I say that not simply by way of comment and inference. Another leniency application now disclosed in these proceedings indicates very specifically that this was certainly not the case for Italy. All this, in my view, points strongly to a reading of the Decision as finding that the cartel embraced arrangements within home markets.
33. Accordingly, as regards VA Tech/Reyrolle, I do not consider that NGET are alleging a different infringement from that found by the Decision. The Enron judgments in the Court of Appeal, relied on by Mr. Brealey, are fundamentally different. Not only do they concern s.47A and, secondly, s.58 of the Competition Act, that have no application in this case, but the position there was that the claimant was seeking to advance a case that EWS had breached the Chapter II prohibition of the Competition Act, along with what was then Article 82 EC, by overcharging for coal haulage under a 1999 contract as regards flows to two power stations, and the April 2000 contract as regards closure to a third power station, whereas the Decision of the rail regulator being relied on found that the abuse committed by EWS comprised discriminatory and selective pricing practices in negotiations for new contracts in the latter half of 2000. On that basis, the court held that the alleged overcharging under those earlier contracts was not the infringement found in the regulator's Decision, and under s.47A the claimant was not entitled to argue that such an infringement might be inferred from the Decision. That judgment, in my view, is manifestly distinguishable. The second Enron judgment of the Court of Appeal, in my view, takes the matter no further, as I think Mr. Brealey in the end accepted.
34. As regards Siemens, and the allegation that it was involved in the sharing of projects on the UK market, the position under the Decision is unclear. Mr. Brealey can point to paragraph 134, where Siemens is not included in the companies identified as being beneficiaries of the UK home market. Mr. Turner can point to passages which indicate that the Commission found that the identity of home market producers changed over time (see e.g. paragraphs 137 to 138). But I reject Mr. Brealey's submission that "NGET cannot make independent allegations which do not arise from the face of the Decision". As I have already observed, the allegation of further facts not set out in the Decision is almost inevitable in a follow-on action of this nature. The relevant question is whether the allegation that Siemens participated in discussions or arrangements regarding projects within the UK home market is part of NGET's pleaded case. In my judgment, it is. The last sentence of paragraph 14C of the re re re-amended particulars of claim expressly alleges that the Alstom Grid defendants by way of implementation of the cartel took part in discussion with Siemens and refrained from making bids so as to allow Siemens to secure orders with NGET. Paragraph 45A, which is to be read as referring to that sentence of paragraph 14C, expressly makes that allegation against, for example, the 16^th defendant, Siemens PLC. Accordingly, no amendment to the pleading is, in my view, required.
35. The objections put forward for the Alstom defendants by Mr. Morris are different. He submits that to permit a claimant to require a defendant to provide information of the nature sought here, in response to a Part 18 request that has to be verified by a statement of truth, is contrary to the adversarial system that is at the heart of English litigation. Indeed, he went so far as to say that it would "subvert" the adversarial system. It is fundamental that it is for the claimant to prove its case, and that principle applies as much to a cartel case as any other. Here, submitted Mr. Morris, NGET is effectively seeking evidence from the defendants. Just as the court cannot compel a defendant to call a particular witness, so it cannot require a defendant to provide information which a claimant believes may help it make its own case.
36. I reject those submissions. This is an issue which was addressed in part in my judgment of April 2012, to which I referred at the outset, although I of course accept that Alstom is not bound by that judgment as it did not then participate in the argument since no application had been issued against it, for reasons I have explained.
37. CPR Rule 18.1(1) states, in so far as material:

"The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

(b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case".

38. PD 18, paragraph 1.2 provides:

"A request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or understand the case he has to meet" [my emphasis].

39. The expression in the rule that the information need not relate to a matter contained in a pleading is significant. A Part 18 request is not like the old request for particulars under the Rules of the Supreme Court. It is to be interpreted in the light of the overriding objective and is part of the more open approach to litigation which the CPR seeks to establish and promote. Information sought must of course relate to "any matter in dispute". But if it does, then the rule precisely covers a situation where there is potentially relevant information relating to that matter which is solely within the knowledge of one side. In modern litigation, it is not the position that a party can hold back on relevant information and leave its opponent to take a chance to see if it chooses to put forward a witness from whom that information might be elicited by way of cross-examination during trial. Indeed, if taken to its logical conclusion, Mr. Morris' submission would call into question the rules of disclosure whereby a party is obliged to search for and disclose material documents that assist its opponents case and not simply those which advance its own.
40. The underlying principle for the purpose of Part 18 is, of course, no different, because this is a cartel damages case. But a Part 18 request must always be proportionate and necessary. The application of the principle will have regard to the nature of the particular case. In a cartel damages claim it is well recognised that there is a significant asymmetry of information as between the claimant and the defendants who are participants in the cartel: see the extract from the Commission Staff Working Paper accompanying its 2008 White Paper on damages, quoted at paragraph 40 of my April 2012 judgment, which I shall not repeat here. Although there has been wide-ranging documentary disclosure in this case, documents directly relating to the operation of the cartel inevitably are limited and those documents that do exist are frequently opaque and cryptic. Moreover, this was deliberate. As the Decision records, the participants in the cartel went to great lengths to try to conceal their unlawful activity.
41. Of course, I held in my earlier judgment that it may well be (and here was) oppressive to require a party to answer requests well in advance of the preparation of witness statements. At paragraph 79 of that judgment, I said this:

"My conclusion that to require answers to the other questions in the Part 18 Request is premature should not be misunderstood as indicating that I regard those questions as inappropriate. ABB and Siemens are now clearly on notice, if they were not before, that NGET regards those matters as very relevant. It will be for ABB and Siemens to determine, with their respective legal advisers, whether and how to deal with these matters in their witness evidence. If those matters are not addressed in that evidence, NGET may then wish to issue a fresh Part 18 Request that may include some or all of the unanswered questions in the Request currently before the court. Any opposition to provision of such information at that stage will require separate consideration".

42. Although addressed specifically to ABB and Siemens, since they were the defendants then facing applications under Part 18, the observation will not have been lost on Alstom as well. NGET duly waited for the service of witness statements to see what they said. As I have mentioned, the defendants served their witness statements near the end of last year. The present requests arise from consideration of all the documents on disclosure and what those witness statements said. On that basis, requests were served by NGET on 31^st January 2014. Some answers were given, leading to further and refined requests served on 2^nd April 2014, and it is following the responses to those second requests that the present applications are made.
43. I turn to the detail of the information sought and discuss at the end the position as regards Annex A to NGET's requests. First, as regards the Siemens defendants, I should emphasise at the outset that for this group of defendants it will be necessary in their answers to distinguish between information that applies to VA Tech/Reyrolle and information that applies to Siemens, as I have defined it. They were, as I understand it, entirely distinct at the time of the cartel and there are some differences also in the periods for which they participated in the cartel.
44. Request 1(a) to (e) seeks identification of relevant individuals involved and what they did. Provided that the request is limited to the operation of the cartel as regards the UK, I think that is reasonable and proportionate to enable NGET to understand the disclosed documents. I have rejected earlier in this judgment the objections set out by Siemens to answering this request that were set out in its response of 14^th April 2014. Accordingly, I strike out the words "more generally and/or" in the second sentence of Request 1(a). Subject to that qualification, the request should be answered, but I should make clear that "in relation to the UK" should not be taken to mean exclusively in relation to the UK. For example, if an individual took steps regarding home markets generally, then that would include steps regarding the UK, even if the UK was not expressly identified.
45. Request 2 relates back to Request 2 in the request of 31^st January 2014 and seeks further confirmation based on information that Siemens may have provided to the Commission for the purpose of its investigation of the cartel or which it may have seen in the course of the Commission's investigation. I think that is a reasonable and proportionate request.
46. Requests 4(b) and 5 both arise from the response of Siemens to the 31^st January 2014 request and are fundamental to understanding Siemens' case on the operation of the home market aspect of the cartel regarding the UK. That information will provide necessary clarification and elaboration of an important part of the dispute and they should be answered (and I interpose that Request 4(b), I think, should be read as cross-referring to Request 4(a)(ii) and not 3(a)(ii)).
47. Secondly, as against Alstom, Request 1(a) seeks clarification of its earlier answer to the request of 31^st January 2014 regarding the individuals involved regarding the cartel in the UK. As I was told that Request 1(b) is not resisted, I am not clear whether Request 1(a) is resisted but, in any event, it seems to me an entirely appropriate request. In the light of the French blocking statute, it is probably better for the Alstom defendants that both Requests 1(a) and (b) are covered by an order. Requests 2 to 3 ask whether, as regards the Alstom defendants, (a) bushings and, (b) gas insulated lines, were included within the scope of GIS for the purpose of the cartel. This information is clearly important for any calculation of the overcharge and is a degree of detail not found in the Decision. It is uniquely in the knowledge of the defendants and the Alstom defendants should answer it.
48. Request 4 reads as follows:

"Please set out the actions that were taken in the cartel by each of the individuals referred to in Alstom's response dated 5^th March 2014 to Requests 1(a) and (b) of the 31^st January RFI in relation to each period in which they took part".

49. I was not addressed specifically on this by Mr. Morris, but even if limited to actions regarding the UK market, this seems to me a request going too far. The actions of a particular individual do not seem to me to be matters necessarily in dispute, nor is this, in my view, a proportionate request. The Alstom defendants do not have to answer it.
50. Mr. Turner also added orally (and this was not objected to) a request that the Alstom defendants clarify answer 5(b) of the answers which they gave on 14^th April 2014. This related to six contemporary documents which were obtained by the Commission from Alstom in the course of its investigation. NGET asked as regards each of those documents:

"Please identify the recipients of the document and the undertaking on behalf of which they were acting at the time the document was received".

51. For three of the six documents, the Alstom defendants responded as follows:

"The Alstom defendants do not know who the recipients of the document were but understand that the document was shared between at least some of the European addressees of the Decision".

52. That is, in my view, a rather cryptic response and so NGET now asks the Alstom defendants to set out the basis of their pleaded understanding and to identify specifically those European addressees of the Decision. I regard that as a targeted and proportionate question which is entirely reasonable. It should be answered.

Annex A

53. That leaves what has been referred to as "Annex A". That is the annex to NGET's requests that sets out, over some 20 pages, what NGET describes as "The claimant's understanding of the operation of the cartel in the UK based on its review of the documents disclosed". In fact, it appears that it also draws on some of the defendants' witness statements. In each of its requests under Part 18, NGET asked the ABB, Alstom and Siemens defendants to provide a "full and proper response" to the factual propositions in Annex A.
54. I find Annex A very helpful as a statement of how NGET puts its case as best it can at this stage as to how the cartel operated in the UK market. But the proper place for that is not as an annex to a Part 18 request but, as I think Mr. Turner in the end accepted, by way of voluntary further and better particulars of NGET's pleading. If permission for such further particulars is required, I grant it. It is helpful and appropriate for everyone to have that now and not saved up for a skeleton argument. It should be verified by a statement of truth, obviously on the basis that this is the best understanding which NGET can currently reach. However, I will not grant permission for those particulars to include the final paragraph 33 which relates to North America. That does not fall within the scope of the heading of Annex A, which refers to the UK market. I do not consider that any anti-competitive arrangements regarding North America come within the scope of NGET's pleaded case and it is much too late to open up such an avenue of inquiry now.
55. As I made clear in the course of the hearing, I do not think that a requirement to respond to Annex A should be by way of a Part 18 request. I do not accept Mr. Turner's argument that each paragraph could be the subject of a distinct request. Many of them are statements as to what NGET believes the position to have been. The claimant cannot by way of Part 18 request ask a defendant in effect, "Do you agree with my view that such and such happened?". However, once the annex stands as particulars of NGET's case, it is appropriate that each defendant should plead to it. As Mr. Hoskins for ABB very properly recognised, any response must satisfy CPR Rule 16.5. In particular, a defendant may respond with a non-admission only if it is unable to admit or deny an allegation, not because it is simply unwilling to do so.
56. Given the proximity of trial and the fact that these requests to a great extent were served over three months ago, the information sought must clearly be provided quickly. I shall hear counsel as to the date or dates to be specified in the order which the court will make.
_________