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Day 3 Agent’s Mutual Limited v Gascoigne Halman Limited ta Gascoigne Halman 7 February 2017 Case No: 1262/5/7/16 (T) IN THE COMPETITION APPEAL TRIBUNAL Competition Appeal Tribunal Victoria House Bloomsbury Place London WC1A 2EB Before: MR JUSTICE MARCUS SMITH MR PETER FREEMAN CBE,QC (Hon)and MR BRIAN LANDERS ________________________________________________________ Between: AGENTS' MUTUAL LIMITED Claimant and GASCOIGNE HALMAN LIMITED (T/A GASCOIGNE HALMAN) Defendant ________________________________________________________ MR ALAN MACLEAN QC and MR JOSH HOLMES appeared on behalf of the Claimant MR PAUL HARRIS QC and MR PHILIP WOOLFE appeared on behalf of the Defendant ________________________________________________________ Page 1 DTI www.DTIGlobal.com 8th Floor, 165 Fleet Street (+44)207 4041400 London EC4A 2DY Day 3 Agent’s Mutual Limited v Gascoigne Halman Limited ta Gascoigne Halman 7 February 2017 1 Tuesday, 7 February 2017 1 to Mr Livesey and to your witness, Mr Maclean, and 2 (10.30 am) 2 secondly, it does seem to shed some light on the 3 Application re confidentiality 3 importance of the OOP rule and I can see it might well 4 MR MACLEAN: I was about to come to the four party meeting. 4 be a document that we would want to refer to in any 5 THE CHAIRMAN: You were, but we were about to have 5 judgment. 6 a preliminary argument about the yellowed pages, aren't 6 MR MACLEAN: Yes. 7 we? 7 THE CHAIRMAN: So those are the factors that we really have 8 MR MACLEAN: Yes, so far as that is concerned, can I just 8 to weigh up, in terms of whether we lift the yellowing 9 remind you, if you take bundle D, please, tab 7, 9 now or at a later date. 10 page 118. Sorry, it can't be. It must be C, tab 7. My 10 MR MACLEAN: So far as the last point, sir, that you have 11 mistake. C, tab 7, page 118. 11 made, I entirely see, if I may say so, that is right, it 12 THE CHAIRMAN: Yes. 12 may well be that it would be a document which would be 13 MR MACLEAN: Paragraph 9.13. This is Mr Springett's sixth 13 referred to or at least cited from in any judgment. But 14 witness statement and he makes the point there, which 14 the particular parts of the note which deal with the 15 I articulated yesterday. So that has been the position 15 possible prospective structure of my client's business 16 on the evidence but the discussions were, so far as 16 may or may not have to be referred to in any judgment. 17 Mr Springett were concerned, private and confidential 17 That is the bit I am particularly concerned about. And 18 and they concerned possible ways forward for 18 so the question of whether it has to be referred to in a 19 Agents' Mutual's business and the three corporates, as 19 judgment is a bridge that can be crossed on another day. 20 you will have seen from reading the note. And in those 20 And so my submission is actually quite a narrow one in 21 circumstances, in our submission, it would be 21 terms of the point of particular concern. It is the 22 appropriate to treat the questions and answers about the 22 commercial confidence of the -- it amounts to what, in 23 four party meeting as confidential. 23 effect, is blue sky thinking on Mr Springett's part as 24 THE CHAIRMAN: Was the confidentiality ever articulated 24 to the possible future course of the business and it is 25 between the parties? We have seen various emails 25 not at the centre of this case, it is not at the centre Page 2 Page 4 1 preceding this meeting and it certainly wasn't said 1 of the rationale for the OOP rule. I take your point, 2 expressly. I take it this is -- 2 sir, about possible judgment but if that's the point, 3 MR MACLEAN: There is a reference which may be slightly 3 then that's a point, in my submission, to be dealt with 4 inaccurate, to Chatham House rules in one of the emails, 4 when it arises, when the judgment is prepared in draft. 5 a clear indication, in our submission, that this was not 5 THE CHAIRMAN: Let me ask you a further point. Suppose 6 intended to be a meeting, the transcript or minutes of 6 Mr Livesey had, after this meeting, made a file note and 7 which were to be splashed across Property Ad or 7 it was disclosed but Mr Harris hadn't marked it as 8 otherwise made public. So, yes, our submission is that 8 confidential or his team hadn't marked it as 9 the meeting was private and it was understood by all 9 confidential. Would you be making exactly the same 10 participants to be private and when one looks at the 10 argument, that this was something that -- 11 fruits of the meeting in the note, one can see that the 11 MR MACLEAN: Absolutely, and that's why I took you to 12 parties did indeed discuss more or less hypothetical, 12 Mr Springett's witness statement. That's my client's 13 more or less likely to happen but they did do some blue 13 evidence, the meeting was private and confidential and 14 sky thinking as to the possible future course of my 14 it doesn't matter who produced the note. As it happens, 15 client's business, and that's, obviously, commercially 15 only one of the participants produced a note and as it 16 sensitive. 16 happens, the note is agreed as, at least by Mr Livesey, 17 THE CHAIRMAN: Yes. In a sense, we are debating less the 17 accurate reflection of the meeting. But if they all 18 question of confidentiality and more the question of 18 produced rival notes, they would all be in the same 19 whether this is so confidential that it needs the 19 boat, yes. 20 protection of the confidentiality ring. 20 THE CHAIRMAN: Thank you. Mr Harris. 21 MR MACLEAN: Yes, that's right. 21 MR HARRIS: Sir, this is a wrongly headed confidentiality 22 THE CHAIRMAN: And that needs to be weighed against the 22 claim which should be rejected in limine. This meeting 23 importance of these matters being debated in open court 23 at the time, the critical consideration, number one, is 24 and I am very conscious of two things. First of all, 24 what was said to the participants at the meeting at the 25 that these are documents that are going to be put both 25 time, about it supposedly being confidential. Now, Page 3 Page 5 2 (Pages 2 to 5) DTI www.DTIGlobal.com 8th Floor, 165 Fleet Street (+44)207 4041400 London EC4A 2DY Day 3 Agent’s Mutual Limited v Gascoigne Halman Limited ta Gascoigne Halman 7 February 2017 1 either the Tribunal or Mr Maclean or I can ask 1 meeting and not a single person else. That is the 2 Mr Livesey but my clear instructions are it was never 2 claim. Obviously wrong. Even if it were right, that 3 said at the time to be confidential. Therefore, 3 confidentiality has already been lost because 4 Mr Livesey didn't understand it to be confidential. 4 Mr Livesey, quite properly, has already told people 5 There were no confidentiality arrangements and since he 5 about the meeting. It doesn't end there because this 6 participated in the meeting, he also knows that it 6 meeting featured, if you could now pick up the pleadings 7 wasn't said to be confidential to either Miss Platt or 7 bundle, please, at bundle A and turn in it to tab 8 Mr Crabb. 8 number 3, you will see at internal page 53 of the 9 Relevant to that is a bundle, a document in 9 bundle -- this is part of paragraph 40 of the amended 10 bundle 14, where you will also find the four party 10 defence on behalf of GHL, you will see that this meeting 11 meeting note itself. Just so that you can locate it, 11 has been described, including the substance thereof, 12 the four party meeting note is on page 7734. You might 12 from the very beginning of the pleadings of this action. 13 want to just put a mark or finger in there for a moment 13 So it is a completely open document, has always been 14 and also turn -- 14 open, never been suggested that this was confidential. 15 THE CHAIRMAN: Hang on, finger's not in yet. 15 No steps have been taken to make it confidential. It 16 MR HARRIS: Sorry. 7734 and 35 is the meeting note itself. 16 talks about the meeting, who was there. Then in K, it 17 THE CHAIRMAN: Yes. 17 talks about Mr Springett seeking to persuade 18 MR HARRIS: You will have seen from the witness statements 18 Countrywide, LSL and Connells to agree collectively to 19 that the proposal was after the meeting to create 19 join the (inaudible) and to agree collectively to 20 confidentiality agreements and nondisclosure agreements 20 boycott Zoopla Primelocation. It talks openly about Mr 21 of further discussions, so the chronology is important. 21 Springett's explaining that he wanted to produce a 22 You will find the one that relates to Connells in this 22 membership proposal -- well you can see the rest.

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