Day 6 Agent’s Mutual Limited v Gascoigne Halman Limited ta Gascoigne Halman 10 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 6 Agent’s Mutual Limited v Gascoigne Halman Limited ta Gascoigne Halman 10 February 2017 1 Friday, 10 February 2017 1 MR HARRIS: Very much so, sir, and you will see in our 2 (10.06 am) 2 skeleton we have already addressed BAGS to some extent, 3 MR HARRIS: Morning, sir, unless there are any preliminaries 3 but we will take on board that point. 4 I would like to invite Mr Springett back to the stand. 4 THE CHAIRMAN: Thank you. 5 THE CHAIRMAN: We have a short ruling. 5 MR HARRIS: Thank you very much. 6 MR HARRIS: Of course, I beg your pardon. 6 Sir, may we have Mr Springett back. 7 Ruling 7 MR IAN SPRINGETT (continued) 8 THE CHAIRMAN: For the reasons set out in greater detail in 8 Cross-examination by MR HARRIS (continued) 9 our ruling, we are conscious that the course of 9 MR HARRIS: Good morning, Mr Springett. 10 admitting the audio files and transcripts would leave 10 A. Morning, Mr Harris. 11 Agents' Mutual with no ability properly to investigate 11 Q. So yesterday you had taken my train ticket and we had 12 the provenance or content of the audio files or the 12 travelled at the end of the day towards west Wales, so 13 transcripts and no real ability to counter them if so 13 we are back there. Could I draw your attention, please, 14 advised with further evidence. 14 to bundle number 6 and this time an email that begins on 15 This application has been made in the middle of the 15 page 3449. 16 trial and the factual evidence has, to a substantial 16 Do you see that this is a copy of an email from 17 extent, already been heard. To require Agents' Mutual 17 Mr Jones, with whom you had had some correspondence; 18 to do anything in response to the evidence would, in our 18 yes? 19 minds, be entirely unreasonable. 19 A. Yes. 20 On a number of occasions when seeking to counter our 20 Q. To the group of west Wales agents. If you just cast 21 concerns regarding the provenance and content of the 21 your eye over the names of the people to whom he sends 22 audio files and transcripts Mr Woolfe very properly 22 the email and copies in. Do you recognise them as being 23 sought to assuage those concerns by suggesting that 23 the Agents' Mutual members in west Wales? 24 they, the concerns, could be resolved by asking the 24 A. Yes, I do. 25 Agents' Mutual representative present at some but not 25 Q. And he says to these other agents: Page 2 Page 4 1 all of the recorded meetings about them. 1 "This is a summary of the agents meeting held 2 We wish to make explicitly clear that if this 2 yesterday." 3 evidence is admitted, then it is on the basis that 3 And he goes on to say certain things about it. And 4 Gascoigne Halman have to live with the deficiencies in 4 over the page do you see the paragraph by the first hole 5 the evidence that we describe in our ruling and cannot 5 punch, the one beginning "The agents present"? 6 at a later stage in the proceedings seek to bolster this 6 A. "There was some concern that agents had not understood 7 material by suggesting that if it were false, 7 the terms of the offer by John Notley?" 8 Agents' Mutual could have produced evidence to say so. 8 Q. No, I am -- there are three -- at the top of 3450, third 9 We will not entertain any submission that silence on 9 paragraph: 10 the part of Agents' Mutual in response to this material 10 "The agents present were all prepared to sign up to 11 indicates any form of acceptance or evidence that the 11 the Zoopla deal ..." 12 recordings are accurate or unimpeachable. 12 A. Yes. 13 On that basis, and on that basis only, we admit the 13 Q. "... subject to the points below being agreed by Zoopla 14 evidence. 14 and, of course, subjects to those agents not present 15 MR HARRIS: Sir, thank you very much. I don't have any 15 agreeing to them as well." 16 other preliminaries or housekeeping. 16 A. Yes. 17 THE CHAIRMAN: One point, as we all know, the person who 17 Q. So this is the west Wales group of agents all signing up 18 knows most about economics and competition law is 18 as a collective to the Zoopla deal, subject to ironing 19 sitting to my right and he particularly suggests that on 19 out the final wrinkles; correct? 20 horizontal matters the parties might in closing want to 20 A. Yes, and I think you can see at the top line on that 21 address us on the European Commission's communication on 21 page that there was a threshold that Zoopla had set for 22 horizontal corporation agreements 2011/C11/01 and the 22 the deal to trigger. 23 Court of Appeal's judgment in BAGS v AMRAC [2009] EWCA 23 Q. But in the context of these agents all being members of 24 750. Not a matter for this week but it might be 24 Agents' Mutual and therefore being bound by the OOP 25 a matter for work at the end of next week. 25 rule, them collectively agreeing to sign up with Zoopla 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 6 Agent’s Mutual Limited v Gascoigne Halman Limited ta Gascoigne Halman 10 February 2017 1 means that they collectively also agree to drop 1 response to Mr Jones sending you the offer. It is 3422. 2 Rightmove, don't they, insofar as they were using 2 So you say at the top of 3422: 3 Rightmove? Insofar as they were using Rightmove. 3 "Nigel, thanks for forwarding the Zoopla offer. 4 A. Insofar as they were using Rightmove. 4 Please find attached the notes and comments/thoughts." 5 Q. That is right, isn't it? 5 You see that? 6 A. That is a logical conclusion. 6 A. "For your personal use", yes. 7 Q. I am glad you see it that way, Mr Springett, because 7 Q. Yes. We can find the note at 3429. 8 that is the logical conclusion of the One Other Portal 8 A. We should just finish off this 3422 where it says: 9 rule, isn't it? 9 "I hasten to say that I would not presume to tell 10 A. In this context. 10 any member what they should do and still less a group as 11 Q. Just so you know, you were joined into this chain, if 11 sophisticated in its approach as yours. But I hope you 12 you were to go earlier in the bundle to 3446, you aren't 12 will find it helpful." 13 on this bit of the chain but you do get added to it at 13 Q. You go on to say, don't you, if you really want to 14 the email on 3446, which is a couple of days later. 14 finish off that email: 15 What you say, picking it up between the two hole punches 15 "I think what you are achieving in west Wales is 16 is in response to Mr Jones -- well, to Mr Hope, copied 16 terrific. Good luck with the meeting." 17 to Mr Jones, in the middle paragraph: 17 And that is a group meeting, isn't it? 18 "As you know, agents joining silver sign a 18 A. Yes. 19 non-binding letter of intent ..." 19 Q. And if you find the note itself, it is to be found at 20 And then it carries on: 20 3429. So this is the note that you send back about the 21 "... and I wondered if you wanted to ask all the 21 group offer that the west Wales group had received from 22 silver agents in the west Wales group to sign their 22 ZPG, isn't it? 23 contract before entering any deal with Zoopla." 23 A. Yes. 24 A. Yes. 24 Q. And what we see is that you comment about the strategy 25 Q. So you were expressly wanting them to be signing up as 25 that you think Zoopla has and then you comment about the Page 6 Page 8 1 a group, weren't you? 1 deal pricing. I don't need to read any of that out. 2 A. No, not particularly. We would have made available -- 2 I don't think any of it is confidential but I don't need 3 this was before the main conversion of silver letters of 3 to go there.