Supreme Court of Ireland Decisions

Clarke J.
MacMenamin J.
Hanna J.

Between/

1.3 Rye was successful in its appeal which was determined by Cooke J. on the 19th March 2009 (see Rye Investments Ltd v. The Competition Authority [2009] IEHC 140). The Competition Authority has appealed to this court against that decision of the High Court. It will be necessary to say a little more about the procedural history of the process before the Competition Authority, the appeal before the High Court, and the appeal to this court in due course. However, this case was one of those selected by the Chief Justice for the purposes of micro-management. In the course of that micro-management procedure, it emerged that Rye wished to place before the court evidence as to what had happened subsequent to the decision of the High Court. The context in which that evidence is said by Rye to be relevant is that, as already indicated, the High Court allowed the appeal against the Competition Authority's decision so that, as a result of the High Court order, the relevant merger was allowed to go ahead. No stay or injunction was sought or granted to prevent that happening. It is common case that the merger has gone ahead and it is at least, for reasons which I will explore in due course, accepted to a point on behalf of the Competition Authority that there would be some consequences for Rye in attempting to, as it were, "unscramble the egg". Against that background Rye wishes to place before the court evidence of what has happened since the decision of the High Court. The formal merger has, of course, occurred, and this is accepted by the Competition Authority. However, Rye wishes to place before the court evidence of the measures adopted by the merged entity to streamline the combined business. It is said on behalf of Rye that such evidence is potentially relevant to its contention that these proceedings are now moot by virtue of the fact that the merger has gone ahead. The Competition Authority resists Rye's application principally on the grounds that it said that the evidence in question is not relevant to this appeal, but also on other grounds.

1.4 In order to more fully understand the precise issues which have arisen it is necessary to say a little more about the procedural history to which I now turn.

2. Procedural History
2.1 The procedural history is relevant principally because it forms the backdrop to the suggestion and counter-suggestion made respectively by the parties as to why it is that this court is now faced with a statutory appeal against a decision of the High Court to allow a merger in circumstances where the merger has in fact already gone ahead.

2.2 Under s.18(1) of the 2002 Act, it is necessary that a merger, such as that with which this appeal is concerned, be notified to the Competition Authority. The relevant notification in this case took place on the 20th March, 2008. The merger itself had a so-called "drop dead" clause, whereby if the merger did not go ahead by March, 2009 the agreement would be at an end and a substantial deposit (€20 million) would be forfeited. The Competition Authority determined the merger application on the 28th August, 2008. Thereafter, Rye applied to the High Court by an initiating notice of motion on the 26th September, 2008, seeking a declaration annulling the determination of the Competition Authority. Given the urgency of the matter (having regard to the "drop dead" date), Cooke J. gave the case a highly expedited hearing and gave his judgment on the 19th March, 2009, with his order being perfected the following day, on the 20th March. Some six days later, (on the 26th March, 2009) the formal arrangements for the merger were put in place, that being the last day for completion of the merger on foot of a negotiated brief extension of the "drop dead" date.

2.3 Thereafter, an appeal was brought to this court. It is said on behalf of the Competition Authority that, while the relevant appeal post-dated the actual completion of the merger arrangements, nonetheless it would have been obvious to Rye at the time when the merger was completed that an appeal was likely.

2.4 No application in the nature of a stay or injunction was brought by the Competition Authority. It is said on behalf of the Competition Authority that, in the light of the form of order made by Cooke J., a stay might not have been appropriate and, thus, that the only form of restraint that could have been imposed would have been by way of injunction. In those circumstances, it is said that the Competition Authority, as a public body, could not have given the type of undertaking as to damages which might well have been required in order to secure such an injunction pending a resolution of the appeal.

2.5 Against that background, both parties, in substance, blame the other for the current situation. Rye says that the Competition Authority deliberately allowed the merger to go through without invoking or seeking to invoke a jurisdiction, which the court undoubtedly would have had, to prevent that process pending a resolution of the appeal to this court. The Competition Authority suggests that Rye must be said to have taken its chances by going ahead with the merger when it knew or ought to have known that an appeal was likely and that a possible outcome of any such appeal might be that this court would reverse the decision of Cooke J., thus rendering the merger unlawful with whatever practical consequences might flow from that.

2.6 Some further points were canvassed by both parties on that question. The Competition Authority suggests that the extreme urgency with which the matter had to be approached stemmed from the fact that the parties to the merger had agreed the "drop dead" date and that there was no reason in principle why it might not have been possible to negotiate an extension of the period in question to accommodate an expedited appeal. Furthermore, both sides blamed the other for a failure to seek, at least in an urgent way, that the appeal be given priority. In addition, the Competition Authority argued that, whatever about the necessity for the closure of the formal merger arrangements taking place on or prior to the "drop dead" date, there was no reason why the additional streamlining or integration measures also had to be implemented while an appeal was outstanding. It is suggested that most, if not all, of those measure would in fact have taken place after the appeal had been filed and that such measures were not necessary to avoid the merger arrangements coming to an end (by non closure before the "drop dead" date) with the forfeiture of the significant deposit.

2.7 On the other hand, Rye relies on the converse of the same point. In answer to the suggestion by the Competition Authority that the merger itself had taken place before any appeal could be brought, Rye suggests that there was nothing to prevent the Competition Authority seeking an order after the appeal was lodged that would have restrained an integration of the respective businesses while allowing the formal merger to take place. Doubtless many more points might and could be made on either side of this contentious question. However, it does not seem to me to be appropriate to express any view on those competing arguments at this stage. The arguments may well require resolution either in the context of the appeal or, on one view, in the event that the appeal is determined in favour of the Competition Authority, on the question of what form of order ought be put in place in such circumstances and in the light of the fact that the merger has, in fact, gone ahead with the businesses being integrated to the extent that they have. However, those questions are for another day.

2.8 Against that background it is next necessary to turn to the issues.

3. Issues
3.1 The basis on which Rye ultimately made its case was to suggest that, in one sense, its application was unnecessary. It was suggested by Rye that, on a proper construction of the relevant rule, Order 58, Rule 8 of the Rules of the Superior Courts, it is not necessary to obtain leave of the court to admit evidence of events which have occurred after the decision in the High Court which is the subject of the appeal. That proposition was questioned on behalf of the Competition Authority.

3.2 However, the Competition Authority also argued, and this, it seemed to me, was the central issue between counsel, that the evidence sought to be introduced could not be relevant to the appeal and should not, therefore, be admitted irrespective of whether leave was required. The argument of the Competition Authority was that if leave was required it should be refused, on the basis of the evidence being irrelevant. However, it was said that even if leave was not required, the court should now determine that it would not consider the proffered evidence on the basis, likewise, that it was irrelevant. The question of the relevance of the proposed evidence was, on any view, therefore, central to the issues which arose on this appeal.

3.3 Finally, a practical issue was raised on behalf of the Competition Authority. It has already been noted that the Competition Authority accepted, at least to a certain extent, that there would be consequences for Rye in the event that it was required to "undo" the merger. In reality, the evidence sought to be tendered concerns the extent of the integration measures which have, in fact, been put in place subsequent to the merger. As I understand it, Rye's case on relevance is that such evidence is material to the question of whether the appeal is, as Rye asserts, moot given that the merger has gone ahead. However, it is argued on behalf of the Competition Authority that even if, (contrary to the Competition Authority's primary position), the evidence could be relevant, that situation gives rise, it is said, to a most difficult logistical problem.

3.4 While it may well be that the Competition Authority accepts some of the facts set out in the evidence proposed to be tendered on behalf of Rye, it is argued that it would be unfair for this court to determine the appeal on the basis of evidence which is not capable of being challenged in a practical way and in circumstances where the Competition Authority would not have available to it an appropriate means of inquiring into whether additional evidence was required to be put before the court with a view to seeking to minimise the extent to which it might be difficult to "unscramble the egg" in this case.

3.5 To use a metaphor suggested from the bench in the course of the hearing it might be that it would be possible for the Competition Authority to persuade the court (if it had a proper opportunity) that this was simply a case where the egg white and egg yolk had been separated rather than one where there had been a proper scrambling. To the extent, therefore, that the court might consider it relevant to assess the degree of difficulty which Rye would encounter in restoring the affairs of the respective businesses to an unmerged state, the Competition Authority argues that such an exercise would require a significant lengthening of the appeal before this court, coupled with the undoubted difficulties which would be encumbered in inviting this court to consider facts which had not been the subject of tested evidence and findings in the High Court.

3.6 Against that background I will turn first, and briefly, to the issue under the rules.

4. The Rules
4.1 The relevant rule is Order 58, Rule 8 of the Rules of the Superior Courts which provides:-

“The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such special grounds). The Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require. The powers aforesaid may be exercised by the Supreme Court, notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Supreme Court shall have power to make such order as to the whole or any part of the costs of the appeal as may be just.” [emphasis added]

4.3 However, in Fitzgerald v Kenny [1994] 2 I.R. 383, Blayney J. indicated that the court nonetheless retained discretion as to whether evidence should be admitted in respect of events which occurred after the decision of the High Court. It seems to me that the reason for this is obvious. In the ordinary way, and at least in very many cases, evidence of what occurred after a decision in the High Court will not be relevant. It would not be in accordance with the requirement that appeals to this court be conducted in an orderly fashion that a party could simply place before the court irrelevant evidence not considered by the High Court and invite this court to take such evidence into account on an appeal. This court clearly retains a discretion (the rule speaks of "full discretionary power") to exclude additional evidence, even where that evidence arises in respect of events which occurred after the High Court had concluded the case. Unless there is some realistic basis on which it can be argued that the evidence in question could be relevant to the issues which this court has to decide on appeal, then it seems clear that the evidence should be excluded.

4.4 It seems to me, therefore, that this court has an inherent jurisdiction to rule out evidence relating to facts which occurred after the High Court decision on the grounds of relevance. This will particularly be so where a case is subject to significant pre-appeal hearing case management. The whole point of such case management is to ensure that the issues which are to be considered at the hearing of the appeal itself will be as refined as is possible consistent with affording both sides a fair hearing. In such circumstances it is entirely appropriate for this court, where possible, to rule, in advance, and at least in clear cases, on the relevance of any evidence sought to be tendered concerning facts which occurred after the decision in the High Court. If such evidence could not be relevant then it is appropriate that it be excluded at an early stage so as not to unnecessarily lengthen the hearing of the appeal. It follows that it is appropriate, on this application, to consider and, if possible, determine the question of relevance. I should, however, add that there may be cases where a very issue in the appeal itself may be as to the extent to which post-High Court decision facts may be relevant. In at least some such cases, it may not be possible to determine, on a procedural motion, the question of relevance with the degree of certainty required to rule confidently on the matter. Whether relevance can be determined at this stage and if so possible whether the proffered evidence is relevant seems to me to be the central issues in this case. I, therefore, turn to those issues.

5. Relevance
5.1 In order to understand the issues which arise in relation to the relevance of the suggested additional evidence, it is necessary to start by noting the basis on which Rye suggests that the evidence is relevant. I have already touched on the basic contention made on behalf of Rye. Rye argues that these proceedings are moot by reason of the fact that the merger has gone ahead and a series of measures of integration have already occurred between the merged companies. One of the issues which this court will have to decide at the hearing of the appeal is, therefore, as to whether the proceedings are moot on that basis.

5.2 However, there are a number of subsidiary questions which the court will need to address in that context. The first question stems from the fact that the statutory regime which applies in respect of a challenge to a decision of the Competition Authority in the context of a merger makes express provision for both a challenge in the High Court and an appeal to this court. Thus, this court will be concerned at the hearing of the appeal with a form of appeal for which there is express statutory recognition. In that context, it will be necessary to consider whether, and if so to what extent, it could be said that the Competition Authority might lose the right to have an appeal determined on the merits by the occurrence of events post a decision in the High Court, at least where it might be argued that such events were not of a type which render the entire process of merger redundant.

5.3 There might well be cases where the relevant merger had ceased to be in contemplation and where none of the issues which informed a relevant decision of the Competition Authority were any longer of continuing relevance to any other potential merger. In such cases, it would be hard to argue with the proposition that the appeal was moot although, it needs to be noted, there remains a discretion in this court to consider a moot appeal in the sort of unusual or exceptional circumstances identified in the jurisprudence most recently analysed in the decision of this court in Okunade & anor v. Minister for Justice, Equality and Law Reform [2012] IESC 49. In any event, the merger in this case is, of course, still very much alive. It is the very fact that the merger as contemplated has been, it is said, completed, that gives rise to the mootness argument advanced on behalf of Rye.

5.4 At the hearing of this application counsel on both sides set out a brief account of their argument on the question of mootness. It seems to me to be useful, at this stage, to record those competing positions. On behalf of the Competition Authority, counsel argued that the appeal could not become a moot simply because a merger had taken place. To regard such an appeal as being moot and, thus, to deprive the Competition Authority of an opportunity to have this court consider, on the merits, whether the High Court was correct in overturning the view of the Competition Authority, would, it was said, be contrary to the statutory regime. On that basis, the primary position of counsel for the Competition Authority was that the appeal could not be moot in any circumstances.

5.5 At the other extreme counsel for Rye argued that, by allowing the merger to go ahead, (i.e. by not seeking some form of interlocutory court intervention) the Competition Authority had allowed the issue to become moot. In one sense if the position is found to be as straightforward as that primary argument advanced on behalf of Rye, there then would be no need for evidence. Counsel for the Competition Authority was prepared to stipulate, for the purposes of the appeal, that the merger had gone ahead and that some steps by way of integration had occurred. Counsel was not, however, prepared to stipulate that the account of the steps taken by way of integration as set out in the schedule specifying the evidence sought to be introduced by Rye was necessarily correct in all respects and, perhaps more importantly, necessarily gave a full picture of all relevant matters. Be that as it may, if the "pure" argument advanced on behalf of Rye, which is to the effect that allowing the merger to go ahead and allowing some steps be taken on foot of it, is sufficient to render the proceedings moot, was to be found to be correct then there would be no need for further evidence for that argument can be made on the law and on the facts stipulated by counsel for the Competition Authority.

5.6 However, both counsel accepted that this was, to a very large extent, new territory. There have been no mergers cases before this court under the existing statutory regime. The issues which this court will have to address on the substantive appeal under the mootness argument are, therefore, at least in significant part, novel. It follows that both counsel were prepared to accept, at least for the purposes of argument, that there was a possibility that the court might conclude that neither "pure" position was correct but that the question of mootness might, arguably, depend on just how far integration had gone and how difficult it might be to reverse any such integration. For example, it might be argued that what came to be described as "merger lite" in the course of argument (i.e. a merger where the formal takeover took place but no significant integration measures were adopted) might not lead to an appeal being moot but that a different case in which significant integration had occurred (which would be difficult to reverse) might give rise to a different conclusion. It is in that context that counsel for Rye indicated that it was considered desirable that the court have available to it some evidence as to the integration steps which have actually occurred.

5.7 One further nuance in the arguments put forward needs to be noted. While not conceding that the evidence sought to be tendered would be relevant even then, counsel for the Competition Authority accepted that there might be a different issue as to the relevance of the evidence in question to a situation which might arise in the event that the Competition Authority were successful on their appeal (thus reversing the decision of the High Court and, in substance, reinstating the original decision of the Competition Authority). In those circumstances, the question might arise as to what happens next? On that basis, counsel argued, the merger again becomes unlawful because it does not have the requisite consent. But the merger has actually taken place. The court might then have to consider what is to happen and what measures should be put in place, to, as it were, "unscramble the egg"? Again, the primary argument of counsel for the Competition Authority was that any problems which might be encountered in "unscrambling the egg" were problems which Rye has brought on itself by completing the merger even though an appeal was, at the early stages, anticipated, and during much of the integration process, actually in being.

5.8 That question, of course, begs the contentious issue between the parties as to whose fault the current situation now is – a question on which I have already touched. However, both counsel accepted (contrary to their respective primary positions) that there might at least be an argument that the court would have to consider, in determining what order or directions it might have to give, the practicalities of a de-merger. In simple terms it is, I think, fair to summarise the argument put forward on behalf of the Competition Authority as being one which said that the proposed evidence could never be relevant but that if, contrary to that view, there were circumstances in which the evidence could be relevant, same only would arise after the appeal had been determined on the merits (that is to say, as the legislation seems to require, on the materials which where before the Competition Authority and on the basis of the decisions of the Competition Authority and the High Court on those materials). Should the appeal be allowed and in the context of deciding what practical measures were required to be adopted as a result of a successful appeal by the Competition Authority which rendered a merger which had actually taken place as being one which no longer had the requisite consent, it was accepted as arguable (although contrary to the principal position adopted by the Competition Authority) that post-High Court evidence might be relevant.

5.9 It seems to me that it is not possible to resolve those very important issues on a motion such as this. Whether, and if so to what extent, the precise level of integration which has been achieved and, perhaps, any difficulties that might be encountered in disentanglement, could be relevant to a mootness question is one which will require careful consideration at the trial. It seems to me that it would be premature to seek to determine, on a motion such as this, that there were no circumstances in which the level of integration of two corporate entities that have merged (in circumstances such as had occurred in this case) might not be relevant to a mootness issue. I make that point without, in any way, indicating any views on the merits of the arguments which have been outlined in this judgment. However, it seems to me that having concluded that there could, at least in theory, be circumstances where such evidence might be relevant it is necessary to address the logistical question on which the Competition Authority placed reliance.

6. The Logistical Question
6.1 As pointed out earlier it may be that the court will accept either the "pure" position argued on behalf of the Competition Authority (i.e. that mootness does not arise at all) or the "pure" position adopted on behalf of Rye (which is that the case is moot because the merger has gone ahead with some consequences irrespective of the extent of those consequences). At either of those extremes it is hard to see how the evidence sought to be tendered could be relevant. It is only if there is found to be an intermediate position where the extent of the measures taken to implement the merger, as notified to the Competition Authority, is relevant to the question of mootness that the evidence in question can really be relevant at all. However, if that question (i.e. the question of the extent of integration) becomes relevant then that brings into stark relief the logistical issues raised on behalf of the Competition Authority. How is this court, as an appeal court, to reach a legitimate and fair estimation of the extent of integration and the difficulties of disentanglement coupled with, perhaps on one view, an assessment of whose fault it was that integration had gone so far without intervention, with that later question in turn being based, perhaps, on precisely when integration measures were put in place.

6.2 At this stage it is not possible, for the reasons already outlined, to identify the precise test (if any) which this court might decide is applicable. On that basis, it is not possible to identify the precise evidence that might be material. However, it seems self-evident that, if additional evidence of integration is to be permitted, fair procedures would require that the Competition Authority be allowed to investigate the accuracy of the evidence tendered and indeed to apply any appropriate procedural measures to ascertain whether there are other connected facts which might also legitimately be brought into the picture for the purposes of an overall assessment by the court. To put it at its mildest, it seems to me that an exercise of that type is one which this court would permit to be conducted before this court only in the most exceptional circumstances. This court is a court of appeal which is not geared to considering, for the first time, contested issues of fact.

6.3 To take but one simple example, it might well be that the Competition Authority would accept that, as a matter of fact, certain delivery services have been discontinued and certain factories closed. However, there could be a very real difference between the parties as to the extent to which it might be difficult or easy to reinstate the same or very similar facilities as a preliminary to a de-merger.

6.4 In those circumstances, it seems to me that it would be inappropriate for this court to engage, at least at this stage, in any assessment of the facts concerning integration, the reasons why integration went ahead and whether any party might be faulted thereon, and the ease of unscrambling the current situation. For this court so to do would run a very real risk of this appeal becoming unmanageable and would also run a very real risk of an unfair process. In those circumstances, it seems to me that the better course of action is for this court to approach the question of mootness, at least initially, on the basis of principle. If, for example, this court takes the view that the questions of detail concerning the level of integration and the other matters analysed could not be relevant to an assessment of mootness, then there would be no need for any such assessment to be carried out. On the other hand, if this court considers that a nuanced view on those issues was relevant to the issue of mootness, then this court will also have to decide how the facts relevant to that question are to be determined. Are they, for example, contrary to the almost universal practice of this court as an appellate court, to be determined on the appeal, or are they to be referred back to the High Court to exercise a fact-finding role? This court must first come to a decision in principle on those questions i.e. whether a nuanced view is relevant at all, and if so, how the facts are to be determined to allow an assessment of the relevant issues to be made. Thereafter, and dependent on the view which this court comes to, it may be necessary to put into place appropriate procedural measures either in this court or by reference back to the High Court.

6.5 However, it does seem appropriate that this court have before it, at least at a very general level, a brief outline of the sort of measure of integration contended for on behalf of Rye so as to assist this court in dealing with the issues which I have identified on something other than a purely hypothetical basis. In those circumstances, I would be prepared to allow, subject to a number of modifications to which I will shortly turn, a statement to be put before this court on appeal setting out briefly the contentions put forward by Rye on the integration question. That statement will not, however, it must be made clear, be accepted as evidence to be assessed on the merits at the appeal but rather purely as a statement of the sort of matters on which Rye would wish to place reliance in the event that the court was persuaded that a nuanced view of the facts was material to the mootness question. It would be admitted as a statement of assertion rather than evidence on which a finding of fact could be made.

6.6 Lest it be said that the Competition Authority might be prejudiced by what might be seen as a one-sided statement of assertion, I would also permit the Competition Authority to file a similar statement of similar length solely directed towards putting forward whatever questions currently might be considered relevant by the Competition Authority in addressing a nuanced view of the relevant facts should the court (contrary to the submissions of the Competition Authority) come to the conclusion that such an assessment was necessary to determine the mootness question. The statement to be put in by the Competition Authority will, as will the statement to be put in by Rye, simply be a statement of contention rather than evidence on which findings of fact could be made.

6.7 On that basis the court will at least have a broad overview of the kind of factual issues which might arise in the event that it became necessary to reach relevant findings of fact. At a minimum such an account could be of assistance to the court, if it came to the view that such facts were relevant, in deciding how such facts were to be determined.

6.8 Having mentioned that there was a minor qualification to the admission, even on the basis of contention, of the statement proposed on behalf of Rye, I now turn to that question.

7. The Contents of Rye's Evidence
7.1 The only basis on which there is an argument in favour of any of the evidence sought to be tendered on behalf of Rye being regarded as relevant is that it is evidence which touches on the extent to which the merger has actually gone ahead in the context of an argument as to mootness. Two of the paragraphs of the evidence sought to be tendered, paragraphs 6 and 8, seem to me to relate solely to issues which concern the question of whether savings anticipated at the time when the merger was proposed have actually been achieved. These paragraphs state:

“6. By way of a sample instance, the efficiency saving as a result of Kerry carrying out the production formerly carried out by contracting with Dawn is approximately €500,000 per annum. This saving has been passed on to consumers in the form of a reduced price and increased promotional activity.

8. In respect of contractual terms since the merger, annual discounts to customers have in the main increased.”

8. Conclusions
8.1 It seems to me, therefore, that both sides should be permitted to file a short statement. On Rye's side, this statement should set out the facts contained in its proposed statement of evidence with the exclusions to which I have already adverted. On the Competition Authority's, side the statement should set out any issues considered relevant concerning the factual matrix within which a nuanced decision on the facts might need to be considered in the event that the court came to the view that such an approach was mandated. Both statements should be verified by affidavit asserting that they represent the relevant positions of the parties.

8.2 It should be made clear that both statements are being accepted by the court as evidence of the position which the respective parties adopt, at a broad level, on this question, rather than as evidence from which the court will make specific findings of fact. In the event that the court concludes that specific findings of fact are necessary to its determination then the court will decide, at the level of principle, how those findings of fact are to be arrived at. The relevant statements may be of assistance to the court in determining an appropriate procedure to be put in place to reach such findings should a conclusion on the factual position be found to be necessary to the court's decision.

8.3 I would propose that the court might hear counsel further on the time within which the statements to which I have referred can be filed.