England and Wales High Court of Justice – Chancery Division, Decision of 11th of April 2013 – National Grid Electricity Transmission PLC v ABB & ors  EWHC 822 (Ch)
This decision arises in the context of ongoing claims for damages brought by National Grid against members of an international gas-insulated switchgear (GIS) cartel. It raises an important issue: the approach the English Court should take when confronted with the so-called French Blocking Statute enacted by Law No 68/768 of 26 July 1968 (as subsequently modified). This statute contains limitations on pre-trial discovery preventing French companies from producing documents in foreign proceedings.
In this case, while most defendants had already disclosed documents and information extensively, some French companies such as Areva and Alstom (referred as “the French Defendants”), resisted an application for disclosure by National Grid, objecting that such a disclosure would put them at risk of criminal prosecution under the French Blocking Statute.
In a pro-active state of mind, the French Defendants suggested an alternative mean for National Grid to obtain the relevant documents without risking prosecution under the Blocking Statute. Indeed, Council Regulation (EC) No 1206/2001 (the “EU Evidence Regulation”)provides for the “direct taking of evidence” by requesting the French authorities to permit the disclosure to be conducted in France.
However, the request to authorize disclosure in France having been denied by the French authorities, National Grid renewed its application for disclosure before the High Court.
The High Court ruled that the existence of the Blocking Statute was not a sufficient reason for not ordering disclosure in this case, considering the low “likelihood of any prosecution being brought against the French Defendants at all”.
This decision reveals the different approaches to Data Protection that lead to potential conflicting obligations for the parties involved in international litigation.
With this ruling, the High Court sends the message that it will fight any attempt by cartel defendants to raise procedural obstacles, such as Data Protection, to the detriment of the instruction of a case. It should be noted that this decision is the object of an appeal. It remains to be seen whether it will be upheld.
The decision is available here.