The Court of Appeal has largely upheld High Court orders governing document disclosure in Goode Concrete’s competition dispute with CRH plc, Roadstone Wood Limited and Kilsaran Concrete. It varied one part of the orders, extending limited disclosure of costs for specified tenders to include average total costs as well as average variable costs.
The judgment, delivered by Ms Justice Costello on 19 February 2020, concerns appeals over discovery, the exchange of documents before trial. It does not decide whether the defendants breached competition law or whether their alleged conduct caused Goode Concrete to cease trading.
Goode Concrete alleges that the defendants engaged in collusive tendering or sold ready-mix concrete below cost in the Dublin area, and that this contributed to its exit from the market in February 2011. It also pleaded, in the alternative, that CRH exercised decisive influence over Kilsaran. Those allegations remain to be determined.
The Court of Appeal rejected most of Goode Concrete’s challenges to refusals of broader discovery. It agreed that requests covering market-share material, communications with competitors, business relationships and cement supply were too broad, insufficiently connected to the pleaded case, or based on assertions that had not been supported by pleaded facts. It said discovery could not be used to search for evidence to build a case that had not been adequately set out.
For cost information on specified tenders, however, the court varied the High Court’s order. The disclosure was not to be confined to average variable costs; it was to extend to average total costs. The court otherwise left in place the limits restricting disclosure to tenders listed in Goode Concrete’s statement of claim and to the period from 1 November 2007 to 28 February 2011. It also upheld an order for CRH/Roadstone to provide a schedule of tender prices, verified by affidavit, rather than the underlying documents, citing the burden of the broader request.
The court also upheld orders requiring Goode Concrete to disclose its own cost records and documents relating to why it ceased trading. It said Goode Concrete had put its own average variable costs in issue and that the reasons for the company’s closure were central to the dispute. The court upheld a confidentiality ring limiting access to the defendants’ commercially sensitive documents to Goode Concrete’s legal advisers and experts, excluding company personnel.
The appeals were dismissed subject to the change to the cost disclosure order. The court said it would hear the parties on costs.