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A new Practice Direction, 31C, is to be inserted into the Civil Procedure Rules (CPR) under the 87th update to the CPR to assist with the implementation of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of competition law provisions of the Member States and of the European Union.
This was originally published Lexis®PSL on 21 December 2016. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast, click here for a free trial to access.
Practical implications arising from this development include that practitioners involved in competition claims, and particularly where the disclosure or inspection of documents from the competition authority are sought, will:
This new Practice Direction sets out provisions on disclosure and inspection of evidence in relation to competition claims (defined at CPR PD 31C, para 1.1(b)).
Directive 2014/104/EU, art 5(3)
It sets out, among other things, how to apply for the disclosure or inspection of 'relevant evidence' (defined at CPR PD 31C, para 1.1(e))
and that the court may only grant such an application where it is determined to be proportionate in accordance with the factors set out in article 5(3) of the Damages Directive.
Where the application for disclosure or inspection under CPR PD 31C, para 1 relates to 'relevant evidence' that includes evidence which is in the file of the competition authority, additional provisions set out at CPR PD 31C, para 2 apply. These provide, among other things, that:
the 'proportionality' test to be applied by the court where the application involves the competition authority must consider the factors set out in article 6(4) of the Damages Directive in addition to those at article 5(3) of that directive
Note: for the purposes of CPR PD 31C, the competition authority means:
CPR PD 31C is due to come into force 'on the same day and immediately after the coming into force of the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017'. These
Regulations are intended to introduce the small number of changes required in the UK to implement the Damages Directive.
It is understood that Regulation is due to come into force imminently given the deadline for implementing the Damages Directive is 27 December 2016.
Note, however, that under the transitional arrangements, CPR PD 31C will only apply to disclosure or inspection applications made in claims 'where the first proceedings brought in relation to that claim were brought before the court on or after the in force date of the Practice Direction'.
CPR PD 31C, para 1.7 provides that, where CPR PD 31C, para 1 applies, CPR 31 'applies to the extent that it is consistent with this paragraph'.
Note: there does not seem to be an equivalent provision within CPR PD 31C in relation to CPR PD 31C, para 2.
For further guidance on:
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