High Court: “Time and Cents” spent on furnishing Replies to Particulars of key importance in complex proceedings

Speedread

The High Court (Mr. Justice Barrett) has recently delivered judgment in National Truck Rental Company Ltd v Man Importers Ireland Ltd & Ors¹ (the National Trucks Judgment) in respect of an application by the second, third and fourth-named defendants (the MAN defendants, represented by A&L Goodbody) seeking an order directing the plaintiffs to furnish full and proper replies to their notice of particulars. The Court found that all of the particulars sought by the defendants were necessary to enable them to prepare properly for trial and in doing so, reiterated that the key decision when it comes to replies to particulars, is the 2019 Supreme Court case of Quinn Insurance Ltd (Under Administration) v PwC² (Quinn). 

The judgment is of note as it analyses the role of particulars in complex proceedings and because the Court was clear in its view that there is a certain "forward -looking dimension….in the sense that time and cents spent now in furnishing particulars will save time and cents later in terms of the focus and level of discovery required."

Parties should be particularly vigilant when considering what particulars are provided and received and whether they can be considered sufficient.

Background

These proceedings arise from an investigation conducted by the Directorate General for Competition of the European Commission in which it was found that certain truck manufacturers had infringed Article 101 TFEU. The defendants in the case are a number of manufactures of large commercial vehicles. The defendants were found to have shared information on (i) pricing in the European Economic Area (EEA) for trucks and (ii) the timing and passing on of costs for the introduction of certain emission technologies (the ‘Conduct’). 

The plaintiff claimed that it entered into various contracts to purchase trucks and that as a result of the Conduct, it was obliged to pay more for trucks than it otherwise would have done, and thus, suffered loss or damage. Accordingly, proceedings were commenced by way of plenary summons in February 2017.

On 21 November 2019, the defendants delivered a notice seeking particulars, to which they argued the plaintiff's replies were inadequate. Thus, by notice of motion of 6 April 2022, the MAN defendants sought an order directing the plaintiff to furnish full and proper replies so that the defendants would be in a position to understand the claim being made against them, the range of evidence that would need to be dealt with at trial and to ensure any requests for discovery were formulated appropriately so as to avoid unnecessary cost being incurred. 

In summary, the particulars sought were as follows: 

a)    information as to whether each truck was sold on by the plaintiff, and if so the details of such sale;

b)    particulars of the allegation that the defendants' conduct caused the plaintiff to pay more than it otherwise would have done; and

c)    the heads of loss and damage allegedly suffered by the plaintiff and "the basis on which it is alleged" that the plaintiff suffered loss and damage by reason of the defendants' behaviour.

Overcharging and Passing On

In respect of particular (a), it was submitted by the defendants that in order to establish and quantify the damage suffered by the plaintiff, it is necessary to first establish: 
(i) whether the infringement had an effect on prices; and 
(ii) what the impact of the overcharge had, including whether any pass-on occurred. 

It was argued that any pass-on must be considered, as a claimant cannot recover any part of an overcharge that it has subsequently passed on. 

Mr Justice Barrett agreed with this point, noting that "competition law proceeds on a compensatory basis" and explained that on this basis the plaintiff cannot maintain that the particulars as to sale and re-sale of the trucks are somehow irrelevant. Accordingly, Mr Justice Barrett ordered the plaintiff to furnish full and proper replies to these particulars. 

Furthermore, Mr Justice Barrett noted that quantifying overcharge and the scale of any passing-on is a challenging process to which various approaches can be adopted. The nature of these approaches will have an impact on the type of discovery that will transpire and so "it is necessary to consider early on what method or methods will be used to determine the issues of causation and quantum so that disclosure can be tailored accordingly". 

Principles from Quinn

Mr Justice Barrett identified the principles in Quinn as applicable when it comes to compelling replies to particulars in complex cases. While it was not accepted that competition law cases are necessarily more complex than other cases, it was accepted that this case met the threshold and therefore more detailed particulars should be required. 

Moreover, Mr Justice Barrett held that one reason complex cases require detailed particulars is to limit the range of discovery, which can place an onerous, expensive and oppressive burden on the parties. The application for further particulars which was made to the Court brings a forward looking dimension to limit the discovery process in the future. Mr Justice Barrett further stated that "to wander blindly into a discovery process without even the particulars that the defendants have come seeking would, without a shadow of a doubt, yield a chaotic, and unwieldy discovery process that would ill-serve everyone in this case". 

Mr Justice Barrett held that it follows from the principles in Quinn that an order directing the plaintiffs to furnish full and proper replies to the particulars sought should issue and that it cannot be contended that the parties proceed with discovery without a proper sense of the loss that the plaintiff claims to have discovered and what the claimed link is between the defendants' Conduct and that loss. 

Key Takeaways

This case illustrates the recent pattern³ whereby Irish Courts require plaintiffs to expand on the bare material facts of their claim, particularly in circumstances where the case brings with it a degree of complexity and potential for an arduous discovery process. Parties should be mindful that the Court will, amongst other considerations, look in detail at the focus and efficiency the particulars process can bring to the discovery process.  Otherwise, there may be significant adverse consequences, for example in terms of legal costs and delay. Also of note was the speed in which the judgment was handed down (6 days) indicating that Mr Justice Barrett did not need much time to conclude that the MAN defendants' arguments and authorities were convincing. 

With special thanks to Darragh Muldoon for his assistance with this article.

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