Your place or mine? Cartels, costs and contribution

In international disputes, who has jurisdiction?

The Court of Appeal in London recently considered “the proper place in which to bring the claim” in a dispute relating to a price-fixing cartel based out of Taiwan.

Background

The Korean tech companies, Samsung and LG, participated in a price-fixing cartel for liquid crystal display (LCD) panels in the EU, including the UK. Operating between 2001 and 2006, the cartel met monthly in Taiwan.

The European Commission (EC) investigated the cartel between 2006 and 2010, concluding that it has infringed EU law:

by participating … in a single and continuous agreement and concerted practice in the sector of Liquid Crystal Display panels for TV, notebook and monitor application

Samsung cooperated with the investigation and was granted immunity. LG also sought immunity, which was denied, but their fine was reduced by 50% for their cooperation.

On foot of the EC decision, 42 local authorities in the UK issued proceedings against Samsung in 2015 seeking damage of £5.4m, holding them jointly and severally liable for the cartel’s actions.

In 2018, a settlement of £1.6m was agreed. Just before the limitation period expired in 2020, Samsung issued a claim against LG seeking their contribution.

LG challenged the jurisdiction of the English courts.

Judgment

The High Court was not satisfied that the English courts were the appropriate forum and set aside the order for service on LG out of the jurisdiction. Samsung appealed.

Giving the judgment of the Court of Appeal, Lord Justice Males stated:

The test to be applied in a case involving permission to serve out of the jurisdiction is whether the court is satisfied that England and Wales “is the proper place in which to bring the claim”…

It was for Samsung, as the claimant, to satisfy the court “…that England is clearly the appropriate forum for the claim”.

An appeal should only be allowed where the judge had made “a significant error of principle, or a significant error in the considerations taken or not taken into account”. This was not such a case.

The appeal was dismissed.

Costs

It is common ground that the successful respondent, LG, should have its costs of the appeal and that these should be summarily assessed on the standard basis.

LG submitted a bill for £73k.

LG has not attempted to justify its solicitors charging at rates substantially in excess of the guideline rates. It observes merely “that its hourly rates are above the guideline rates, but that is almost always the case in competition litigation”.

Samsung relied on the guide on the Summary Assessment of Costs.

Males LJ assessed LG’s costs at £55k.

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