On 19 October, the High Court rejected an application by members of the industrial copper tubes cartel to strike out parts of damages claims brought against them by Toshiba and others. The judgment builds on the Cooper Tire v. Dow Chemical judgment of the Court of Appeal reported in our May 2011 Bulletin.
In December 2003, the Commission issued a decision addressed to non-UK domiciled members of the KME, Wieland-Werke and Outukumpu groups, fining them for their involvement in a price-fixing and market-sharing cartel in the industrial copper tubes market. Toshiba Carrier and other large purchasers of tubes brought proceedings in the High Court against a number of the addressees of the decision, and also against a number of English subsidiaries of the cartel members. The English subsidiaries were not named in the decision.
The English defendants applied to the court to strike out or dismiss the claim against them. The non-UK defendants applied for an order that the English courts had no jurisdiction over them - the basic principle under the Brussels Regulation being that a defendant must be sued where it is domiciled. They accepted, however, that if the claims against the English defendants were not struck out, the English courts would then have jurisdiction over the non-UK defendants too, on the basis that the claims against them were "closely connected" to the claims against the English defendants for the purposes of Article 6.1 of the Brussels Regulation.
Following the judgment in Cooper Tire, the court held that whether or not the claimants were alleging that the defendants had knowledge of the cartel (and it found that they were making that allegation), it was arguable that the English defendants had "implemented" the cartel. This was sufficient to defeat the defendants' application to strike out the claim. The court rejected the suggestion that it should make a reference to the ECJ at this stage - in the absence of evidence, the reference would be confined to academic points.
A further interesting point arose from the argument by one of the English defendants that although a wholly owned subsidiary of one of the addressees of the decision, it supplied tubes only as an agent of its parent. As it had no contractual relationship with the claimants, it could not be liable to them. The court rejected this argument, distinguishing between contractual liability and implementation of the cartel.
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