EUPillar Cooper Tire and Rubber Co Europe Ltd v Shell Chemicals UK Ltd [2010] EWCA Civ 864

Summary

There was a Commission decision (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) which established an infringement of EU competition law. The dispute was raising an issue of the cartel members’ liability towards the car tyre manufacturers. There were parallel proceedings. There was one sets of proceedings in Italy, Enichem brought a tactical claim for a non-liability declaration claiming that the cartel had no effect on the price of Butadiene Rubber (‘BR’) and Emulsion Styrene Butadiene Rubber (ESBR). In other words, the claimant in the Italian proceedings claimed that no damage was caused. To this end, Enichem commenced court proceedings against 28 defendants – tyre manufacturers - companies in the Pirelli, Michelin, Continental, Goodyear, Bridgestone and Cooper groups. (see [68] of the English High Court judgment). The English legal proceedings were commenced a few months later by 26 companies (only 4 of the claimants were English) of the same group of tyre manufacturers against 23 defendants, all of whom were producers and sellers of BR and ESBR. The claimants sought damages from the cartel members for EU competition law infringements. It should be noted that “[t]he Claimants in the English proceedings are in essence the same as the defendants in the Italian proceedings. There was no dispute that they could be regarded as the same parties. The difficulty arose with the Claimants in the Italian proceedings, Enichem, and the Defendants in the English proceedings, all the producers of BR and ESBR save Enichem. Debate was joined on the issue whether they were the same parties.” [69] In England, the defendants challenged the jurisdiction of the English court, and sought an application for stay of the proceedings under Arts 27 and/or 28. After carefully considering the degree of identify between the parties, and their interests, the judge held that Enichem and the defendants in England were not the same parties. Thus, the application for a mandatory stay under Article 27 of Brussels I was rejected. And so too was rejected the application for a stay under Article 28 of Brussels I. The refusal of the stay of legal proceedings was affirmed by the Court of Appeal. Lord Justice Longmore, sitting in the Court of Appeal, stated: “54. The only substantive argument of Mr Rabinowitz which needs to be addressed is his submission that the judge was wrong to take into account the time when a decision was likely to be reached, in considering the stage which the proceedings had reached at the time of the application to the English court. He submitted that the judge was impliedly criticising the Italian court system by saying that it was unlikely a decision would be reached until September 2012. (In fact we now know that the next hearing in the appeal on the outright dismissal of the claim will not occur until January 2014). 55 But there is no such implied criticism. The fact that it may take different periods of time for similar proceedings to come to a conclusion in different jurisdictions, for whatever reasons, is not a criticism; it is merely a fact of life to which a judge cannot be expected to close his eyes.” [54-55].