EUPillar DSG Retail Ltd, Dixons Retail Plc & others v Mastercard Inc & others [2015] EWHC 3673 (Ch)

Summary

The English legal proceedings were commenced on 25th June 2014. The claimants were suing for antitrust damages. The parties to the dispute were, to a large extent, two groups of companies. On the claimant’s side, there were a number of retail companies from the Dixons’s group of companies, seeking antitrust damages. On the defendant’s side, with the exception of the fourth defendant, there were companies from the MasterCard’s group of companies. On 17th March 2015, the defendants made a strike out/summary judgment application. It was alleged by the claimants that, after 11th January 2009, the defendants were involved in anti-competitive practices which were in conflict with Article 101 TFEU. It should be noted that the cross-border EU competition law action in England was preceded by a Commission decision, establishing an antitrust infringement. The Commission decision, dated 19th December 2007, was upheld by both the General Court and the Court of Justice of the European Union. The first, second and third defendants were addressees of the Commission decision. However, none of the addressee of the Commission decision was domiciled in the UK. Only one of the defendants from the MasterCard’s group of companies was domiciled in the UK. In particular, this was the fifth defendant which appeared to be the anchor defendant for the purposes of Article 6(1) of Brussels I. Under the current PIL framework, by establishing jurisdiction on the basis Article 6(1) of Brussels I, the claimants could make a case, under Article 6(3)(b) of Rome II, for English law (i.e. lex fori) to apply to their entire claim. This seemed to be regarded as an important factor for them in the light of the different limitation periods, which appeared to exist, across Europe. The case was a good illustration for the way in which the current legal landscape shapes the litigants’ strategies. The point was captured by Mr Justice Barling who noted that: “7. The relevance of [11th January 2009] is that it is when the Rome II Regulation came into effect. The defendants contend that the claimants have included the fifth defendant in the claims in question in order to give the claimants the right to elect that those claims against all the defendants are governed by English law and, consequently, by the six year limitation period under English law, pursuant to Article 6(3)(b) of the Rome II Regulation. Article 6(3)(b) allows a claimant who sues defendants from several jurisdictions to elect that their entire claim is governed by the law of the forum provided that one of the defendants is based in that jurisdiction. The defendants contend that since the fifth defendant is based in England, it has been joined as a defendant without any basis being advanced for contending that it was involved in the matters about which complaint is made, and that if the claim was brought against just the first to third defendants (who are all incorporated outside this jurisdiction) the claims would be subject to other laws, with shorter limitation periods. 23. In their draft amended particulars of claim (“APOC”) (which has been treated as the correct pleading, because I am told that the amendments are not likely to be disputed by the defendants) the claimants state that they elect under Article 6(3)(b) to have their whole claim governed by English law from 11th January 2009 to date. That is on the basis that the fifth defendant is domiciled in England, and the English market was "directly and substantially" affected by the restrictions of competition alleged (see paragraph 204 of APOC)” [7 and 23] The English High Court dismissed the defendants’ application, holding that the first, second, third and fifth defendant appeared to have common management strategies which could have been used to coordinate their Pan-European anti-competitive practices. In view of that, there were some important issues to be tried on the merits against all the defendants from the MasterCard group of companies.