Are the Rules of Discovery Different in Competition Cases?

The High Court recently considered the law on “confidentiality rings” in the context of orders for discovery of documentation to competing parties in the context of commercial litigation. A confidentiality ring is a group of designated individuals who the court has authorised to access documents disclosed by one party to another in the context of litigation. The purpose of it is to protect commercially sensitive information, which must be disclosed by one party in litigation to another party where those parties are commercial competitors. It is a common misconception that the commercially sensitive nature of documentation will prevent them from having to be discovered at all.

Mr Justice Barrett considered a number of issues relating to confidentiality rings in his recent decision in Goode Concrete v CRH PLC & Ors [2017] IEHC 534. Among the matters addressed was whether the rules of discovery, as provided for in the Superior Court Rules and interpreted by the Courts, are somehow different in the context of competition law cases. The answer was a firm “No”.

It is clear that competition law cases, by their very nature, are more likely to give rise to an application for orders that a confidentiality ring be put in place with rules around the manner in which documents can be dealt with when disclosed by one party to the other. Mr Justice Barrett observed that confidentiality rings are increasingly becoming standard practice in competition law proceedings in the United Kingdom. In the particular circumstances of Goode Concrete, the Judge made the following orders, which are representative of the typical orders one finds:

  • it was not necessary for Mr. PG, as distinct from independent expert advisors engaged by Goode Concrete, to see any material that was ordered to be discovered,
  • the discovery ordered by the court would be the subject of a confidentiality ring comprising the legal advisors to Goode Concrete and such independent expert advisors as may be engaged by Goode Concrete in the pursuit and advancement of the proceedings, subject to liberty to apply to the Court on the part of any or all of the defendants in the event that the operation of the confidentiality ring and/or the addition of any particular independent expert advisor/s to such ring is considered to present a difficulty in terms of the very confidentiality that the ring is established to protect,
  • all the legal advisors to Goode Concrete would undertake to the court (i) not to disclose to any party outside the confidentiality ring the substance or tenor of any such discovered documentation aforesaid, and (ii) to respect the spirit as well as the letter of the order concerning the establishment of the confidentiality ring, and
  • the solicitors to Goode Concrete would undertake that any expert to be joined to the confidentiality ring shall only be so joined where s/he has previously agreed in writing with those solicitors to treat with all such discovered documents aforesaid on like terms of confidentiality to which those solicitors are subject.