The Supreme Court dismissed three companies’ appeal against the scope of a High Court discovery order in their competition case against CRH plc and seven other defendants, but reduced the security required for discovery from €77,000 to €27,000.
In a judgment delivered by Murray J on 22 April 2004, the court said the discovery ordered was extensive and sufficient for the fair disposal of the issues. It declined to require broader disclosure of defendants’ business activities, finding that the additional request was speculative, disproportionate and unduly burdensome.
Framus Limited, Amantiss Enterprises Limited (in voluntary liquidation) and Wilbury Limited (in voluntary liquidation) claim damages over alleged anti-competitive conduct in cement and related markets. They allege agreements or concerted practices concerning prices, trading conditions, production, market shares and supply, as well as abuse of a dominant position and conspiracy to injure their businesses. Those claims were allegations in the underlying proceedings; the Supreme Court was deciding appeals about discovery and security for its costs, not the merits of the competition claims.
The companies sought wider disclosure, including communications with 16 customers, records about Amantiss’s cement business, longer time periods and documents about ownership or control of other businesses. The court rejected those grounds. It said the customer request was too broad and involved speculation, while the Amantiss and ownership requests were insufficiently specific. It also upheld the High Court’s limits on the relevant periods.
The court clarified that the existing order covered communications or agreements about sale conditions and alleged “treats” connected directly or indirectly to the specified projects and matters, even if made at another time or concerning another customer where they formed a basis for the conduct in question.
On security, the Supreme Court found that the plaintiffs lacked sufficient assets to meet the defendants’ costs if unsuccessful. It also upheld the finding that they had not made a prima facie case that their financial position was caused by the defendants’ alleged wrongdoing. However, the court said the €77,000 security could seriously handicap the companies’ ability to use discovery, and that the estimated discovery costs were a small part of the likely overall litigation costs. It set security at €27,000, about 30% of the estimated €89,375 cost of discovery.