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1262/5/7/16 Agents' Mutual Ltd V Gascoigne Halman Ltd (T/A

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1262/5/7/16 Agents' Mutual Ltd V Gascoigne Halman Ltd (T/A This Transcript has not been proof read or corrected. It is a working tool for the Tribunal for use in preparing its judgment. It will be placed on the Tribunal Website for readers to see how matters were conducted at the public hearing of these proceedings and is not to be relied on or cited in the context of any other proceedings. The Tribunal's judgment in this matter will be the final and definitive record. IN THE COMPETITION Case No. 1262/5/7/16 APPEAL TRIBUNAL Victoria House, Bloomsbury Place, London WC1A 2EB 15 December 2016 Before: MARCUS SMITH QC (Chairman) (Sitting as a Tribunal in England and Wales) BETWEEN: AGENTS' MUTUAL LIMITED Claimant - and - GASCOIGNE HALMAN LIMITED T/A GASCOIGNE HALMAN Defendant AND BETWEEN: AGENTS' MUTUAL LIMITED Claimant - and - MOGINIE JAMES LIMITED Defendant _________ Transcribed by BEVERLEY F NUNNERY & CO. (a trading name of Opus 2 International Limited) Official Court Reporters and Audio Transcribers 5 New Street Square, London. EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ CASE MANAGEMENT CONFERENCE (Pre-Trial Review) A P P E A R A N C E S Mr. Alan Maclean QC and Mr. Josh Holmes (instructed by Eversheds LLP) appeared on behalf of the Claimant. Mr. Paul Harris QC and Mr. Philip Woolfe (instructed by Quinn Emanuel Urquhart & Sullivan, UK LLP) appeared on behalf of the Defendant, Gascoigne Halman. Mr. James Hall (instructed by Gordon Dadds LLP) appeared on behalf of the Defendant, Moginie James. _________ 1 THE CHAIRMAN: Good morning. 2 MR. MACLEAN: Good morning, sir. I appear in this matter for the claimant, Agents’ Mutual 3 Limited, with my learned friend, Mr. Josh Holmes. Mr. Paul Harris QC and Mr. Philip 4 Woolfe appear for Gascoigne Halman Limited, which is the defendant in one of the cases. 5 My learned friend, Mr. James Hall, appears for Moginie James, who are the defendants in 6 the other action. 7 THE CHAIRMAN: Thank you, Mr. Maclean. 8 MR. MACLEAN: Sir, you have had skeleton arguments from all three parties which I hope the 9 court has had an opportunity to read. 10 THE CHAIRMAN: Yes, it might help you if I indicate what I have read. I have obviously read 11 all three skeletons. I have also read application notices, pleadings and the evidence for the 12 PTR. I have dipped into, but I think you should assume that I have not really read the 13 witness statements and experts reports for the trial, so to that extent you will have to take 14 me to the material. 15 In terms of how to proceed this morning, it seemed to me that the points on the agenda and 16 the matters to do with the operation of the trial itself, including the question of when the 17 trial should take place we should do last, and perhaps we should be dealing with your three 18 or probably more like two applications, deal with them on an application by application 19 basis, with putting them and then the defendants responding and then proceed on to 20 Gascoigne Halman’s applications and deal with them in the same way. 21 MR. MACLEAN: For my part I am entirely content with that proposal. I think Mr. Hall may 22 wish to address you briefly. 23 THE CHAIRMAN: Mr. Hall, do please go ahead. 24 MR. HALL: Thank you, sir. I just wanted, out of courtesy really, to let you know my personal 25 position today. You may have picked this up from a footnote in one of my learned friend’s 26 submissions. I have only been briefed for this morning, I am afraid, because I had a pre- 27 existing commitment in the Chancery Division this afternoon. In any event, my instructing 28 solicitor, Mr. Yapp, who sits behind me can carry on for this afternoon. I hope that does not 29 cause any difficulties and I apologise for that. I am unable to get out of this afternoon’s 30 matter. 31 THE CHAIRMAN: I quite understand, and obviously you are excused, but we will try and ensure 32 that any matters that involve your client are dealt with this morning. 33 MR. HALL: In fact, as you may have seen, sir, from our submissions, our position is essentially 34 neutral on almost everything. The only thing, in fact, that we do have one very minor 1 1 objection to is the moving of the trial date, but that is simply because of my own availability 2 again, and my availability is, of course, very much at the bottom of the list of priorities, I 3 think, and so really fall in the hands of the other parties on the other matters. 4 The only other matter I think I should mention at this point is in the trial timetable section 5 of our submissions we suggested a similar timetabling to the other parties, but for the fact 6 that we said the claimant’s witnesses should go first. I see that the other two parties have 7 said that it should be the defendants’ witnesses who go first and can I just make it clear now 8 in case I do not get a chance later, that we are perfectly happy for the defendants’ witnesses 9 to go first. 10 THE CHAIRMAN: That is very helpful, and although it really belongs to the end of the day it 11 did seem to me, given the competition issues that we are dealing with in February, that it 12 made more sense for the defence to start and for the claimants to respond in terms of 13 witness order, but we can, perhaps, discuss that in greater detail before. 14 I have one point for you, Mr. Hall, I think it has been resolved but at the moment, as I 15 understand it you and your team are not party to the confidentiality ring, but you are going 16 to become parties. 17 MR. HALL: Yes, we will. I am sorry that has taken some time to organise but it will certainly 18 happen in the next few weeks, and still before the trial. 19 THE CHAIRMAN: That is excellent, because otherwise we would have the unfortunate situation 20 of you and your team having to leave at certain points which I think is highly undesirable on 21 any level. Good, thank you very much. In that case the first item, Mr. Maclean is what I 22 think is agreed, which is the creation of a ring for super-confidential documents. 23 MR. MACLEAN: Yes, as you say, there was an issue canvassed in correspondence about 24 confidentiality, but it has all been agreed and I think it is common ground that the Tribunal 25 is invited to make an order in the terms in the application. So, the live applications I have 26 relate to the data of a Mr. Glasgow, that you may have seen in the skeleton, and also an 27 application in relation to some activity carried out by Mr. Livesey, one of the other 28 witnesses. I will deal with those straight away, if I may. 29 Can I just hand up some pieces of paper? It is convenient, perhaps, to hand them all up now 30 rather than to do it seriatim. One is relevant to the first matter, Mr. Glasgow’s data, but the 31 others are relevant to Mr. Harris’ applications and, obviously, I am not going to develop 32 those now, but it would be convenient and, as, sir, you will see in a moment, it will save 33 time---- 34 THE CHAIRMAN: No, hand them all up. 2 1 MR. MACLEAN: --if I flag to you now what these documents are and what they say. There are 2 four separate documents here. (Same handed) 3 THE CHAIRMAN: Thank you. 4 MR. MACLEAN: The first document is a summary of Agents’ Mutual disclosure, and that sets 5 out the documents which have been disclosed by my client and the dates on which they 6 have been disclosed, starting with the initial disclosure on 29th September. So there are 7 2109 documents disclosed by my clients then, and then there has been supplemental 8 disclosure---- 9 MR. HARRIS: I am sorry to interrupt, we need to have more copies of that please, because I do 10 not think we accept this table which we have just seen, and my solicitors need to have 11 regard to it. 12 MR. MACLEAN: We will get you a copy. 13 MR. HARRIS: Can I have that now, please, whilst you are explaining the table. 14 MR. MACLEAN: All right, we will get you a copy. 15 MR. HARRIS: Thank you. Can we please have it now, because otherwise we cannot follow the 16 explanation. 17 MR. MACLEAN: My clients disclosed 2,109 documents on 29th September, and there have been 18 three further tranches of supplemental disclosure. The details do not matter for present 19 purposes. The second document is a similar table summarising the disclosure by 20 Mr. Harris’s clients, Gascoigne Halman. They, too, gave initial disclosure of 508 21 documents on 29th September. They then gave supplemental disclosure on 4th October. 22 There was then some redaction of the disclosure that had already been given, so row 3 in 23 the table is a sub-set, it is a redacted version of some of row 1. They then gave 24 supplemental disclosure on 19th October, and then unredacted versions of something that 25 had been disclosed earlier on 28th October.
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