Following the Competition Appeal Tribunal's (the "CAT") ruling in October that the time limit for bringing a claim for damages had not yet begun due to appeals pending before the European Court of First Instance, the CAT has now granted permission for the claimants to make a claim for damages against The Morgan Crucible Company plc ("Morgan Crucible").
In February 2007, five companies (Emerson Electric Co., Valeo SA, Robert Bosch GmbH, Visteon Corporation and Rockwell Automation Inc.) filed a claim for damages against Morgan Crucible and others (Schunk GmBH, Schunk Kohlenstofftechnik GmbH and SGL Carbon AG) before the CAT.
The defendants had been fined by the European Commission for breaching Article 81(1) of the EC Treaty for being involved in a carbon and graphite products cartel which involved both price fixing and market sharing.
The claimants had purchased such carbon and graphite products from the defendants whilst the cartel was in operation and claimed that the defendants have been unjustly enriched as a result of the cartel.
On 17 October, the CAT issued a judgment ruling that the time limit for bringing a claim for damages had not yet begun as there were still appeals pending before the Court of First Instance. This meant that the claimants required permission from the CAT to make their claim.
The CAT also ruled that even if it was wrong, it had jurisdiction to extend the time limit to allow the action to proceed under Rule 19(2)(i) of the CAT rules. However, it found that time limit could not be extended by an agreement reached by the parties in the context of US proceedings. In particular, it noted that "In our judgment, it is not open to the parties to try to fix their own limitation period, whether as a response to the circumstances of a particular case or otherwise".
Permission to make a claim
On 16 November the CAT granted permission for the claimants to make a claim against Morgan Crucible.
In particular, the CAT noted that if they did not grant permission there would be an "enhanced risk to the Emerson Claimants that Morgan Crucible documents will not be available at trial".
The CAT also found that "Morgan Crucible's attitude to the question of the undertaking to preserve the documents and its negative approach to pre-action disclosure concerns the Tribunal. This is particularly so in the context of a previous history of destruction of documents by Morgan Crucible".
In addition, they noted that Morgan Crucible's submissions for not granting permission appear to be more pertinent to whether the proceedings should be stayed, rather than whether permission to make a claim should be granted.
The CAT also dismissed Morgan Crucible's Rule 40 application which requested the CAT to reject a claim on the basis that there are no reasonable grounds for making the claim.
A case management conference took place on 13 December 2007 to consider the directions to be made in the UK proceedings against Morgan Crucible and whether the CAT should grant permission for claims to be made against the other proposed defendants.