Private actions and access to information (relating to a regulatory investigation)
Produced in partnership with Constantine Cannon LLP
Private actions and access to information (relating to a regulatory investigation)

The following Competition guidance note Produced in partnership with Constantine Cannon LLP provides comprehensive and up to date legal information covering:

  • Private actions and access to information (relating to a regulatory investigation)
  • What do we mean by 'regulatory material'?
  • The value in accessing material from the regulatory investigation
  • How disclosure of regulatory material is sought in an English action
  • EU law on the disclosure of regulatory material
  • Practice in the English courts

BREXIT: The law and practice referred to in this Practice Note may be impacted by Brexit. For further information on the potential impact, see: The effect of Brexit on UK competition law in a deal or no deal scenario.

Private actions in English courts alleging the infringement of competition laws often arise in parallel to investigations by national and/or European competition authorities even if not strictly following-on from the same. Claimants commonly seek disclosure of documents and/or information provided to the competition authorities, or created by them ('regulatory material'), and defendants strongly resist most such disclosure.

Recent developments at the EU level, including the passage of the Damages Directive, implemented in the UK in The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (SI 2017/385) (the Regulations), appear to leave little scope for claimants to get hold of regulatory materials for use in damages claims in the future. While this is not ideal for claimants, nor is it a disaster. Claimants have access to a lot of valuable material through the normal disclosure practice and regulatory material will not necessarily add a lot more.

See further, UK damages actions, Private actions and access to information—checklist.

What do we mean by 'regulatory material'?

This section briefly discusses the different types of