TACHING PETROLEUM CO, LTD v. MEYER ALUMINIUM LTD

HCA 1929/2017
and HCA 1069/2018
(Heard Together)
[2018] HKCFI 2095

HCA 1929/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1929 OF 2017

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AND

HCA 1069/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1069 OF 2018

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(Heard Together)

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REASONS FOR DECISION

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1.  This decision should be read with the decision in CTA1/2018 handed down on the same date.

2.  HCA 1929/2017 (“the Taching Action”) was listed to be heard together with CTA1/2018.  Shell appeared as an intervener and had made representations as regards directions over HCA 1069/2018(“the Shell Action”). This was a hearing for directions, most of which had been agreed.  I only need to deal with the following matters briefly.

Transfer of proceedings

3.  It was confirmed that there was a common defence in both the Taching Action and the Shell Action, namely, that Taching and Shell had colluded in price fixing, in breach of the First Conduct Rule (“the Allegation”) under the Competition Ordinance, Cap 619 (“CO”).

4.  By consent of Shell and Meyer, I therefore gave leave for the transfer of the Allegation in the Shell Action to the Competition Tribunal (“the Tribunal”).

Whether the remainder of the High Court Actions should be consolidated, heard together or tried together with the proceedings at the Tribunal

5.  Having regard to the common defence, it was clearly appropriate to list both High Court Actions together to be heard with the 2 sets of proceedings in the Tribunal for case management purpose.  The question of trial of the remainder of the High Court Actions shall be revisited at the next CMC when the pleadings have closed.

Pleadings

6.  Meyer has admitted the delivery of diesel oil by Taching and Meyer. Insofar as the defence would rely on contravention of the First Conduct Rule, Meyer could state simply in its defence that it would rely on the pleadings filed in the Competition Tribunal.  The same shall apply to Taching and Shell’s replies.

Discovery

7.  The parties have agreed that all discoveries among them shall be disclosed to one another, subject to any confidentiality protocol approved by the Tribunal. 

8.  Parties have agreed that the requirement for general discovery in these 2 High Court Actions shall be dispensed with.  This costs-saving approach was most welcomed by the court, and was in line with the approach of the Tribunal.

9.  I have directed the parties to make discovery of directly relevant documents including all documents referred to in the pleadings without the need for a request from another party.  Discovery before the next CMC would aid the parties in giving realistic estimates of time for witness statements, application for specific discovery, directions for expert evidence, and time for mediation.

Summary

10.  I had therefore ordered at the hearing that:

(1)The Allegation in the Shell Action be transferred to the Tribunal;

(2)In line with the directions in the Tribunal, the balance of the High Court Actions shall be listed and heard together with the 2 sets of proceedings in the Tribunal for case management purpose until further order.  There shall be discovery of only directly relevant documents and all documents referred to in the pleadings.  All pleadings and discovery shall be served on one another among Taching, Shell and Meyer.

(3)The pleadings in the High Court Action shall incorporate those filed in the Tribunal by reference insofar as competition issues were concerned.

(4)General discovery shall be dispensed with.