Court of Appeal dismisses appeal from High Court, and affirms orders relating to discovery in a competition law action alleging price rigging in the Irish market for cement, including determinations that the trial judge had correctly: (a) refused discovery where the relevant aspect of the claim was speculative and purported to rely on discovery in order to provide particulars of the allegations made in pleadings; (b) granted discovery of documents relating to the decision of the plaintiff company to cease trading, where the plaintiff had failed to establish that such discovery would be disproportionate; (c) ordered a 'confidentiality ring' whereby one person was to be excluded from considering the documents, on the grounds that such a measure was allowable if the circumstances required it; and (d) ordered discovery of documents concerning selling below the average variable cost (AVC) (but extends it on appeal to selling below the average total cost (ATC).
Costello J (nem diss): Discovery of documents - alleged breaches of competition legislation - s.4, s 5 of the Competition Act 2002 - Article 101, Article 102 of the Treaty on the Functioning of the European Union - claim for damages and injunctive relief - whether trial judge erred in application of the relevant legal principles - case management - threshold for discovery - relevance - necessity - 'fishing expedition' - proportionality - role of High Court as a competition authority - S.I. Number 195/2004 European Communities (Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty) Regulations 2004 - powers not exercisable by the Competition and Consumer Protection Commission - alleged collusive tendering - concerted practices - below-cost selling - abuse of dominant position - whether one defendant 'secretly' controlled another defendant - categories of discovery - claim that plaintiff cannot particularise claim until receipt of discovery documentation - documents concerning market share - order for limited discovery of documents concerning certain contracts entered into by defendants - 'average variable cost' (AVC) - 'average total cost' (ATC) - documents evidencing cost of production and supply - whether cost of production was an issue in dispute - documents relating to the reasons why the plaintiff stopped trading - whether documentation necessary to obtain an expert report - assessment of proportionality - 'confidentiality ring' - discovery not to be shared with one named individual - whether exceptional circumstances to justify such a measure - commercial sensitivity of the documents.