On 24 November 2016 Barling J made a Norwich Pharmacal order in relation to a potential claim under Article 101 TFEU / Chapter I of the Competition Act 1998. So far as the researches of counsel have been able to discover, this is the first such order to have been made in a competition case.
The Claimant in the case, Zantra Limited, a distributor of crop protection products, agreed with BASF, a manufacturer of such products, that Zantra would beginning in 2016 be appointed as a distributor of BASF’s products. Shortly after BASF announced that decision to the market, however, BASF contacted Zantra to state that it had changed its mind in view of the market reaction. Zantra’s contended that such market reaction, and the terms in which it was communicated by BASF, gave rise to an inference that two or more of BASF’s existing national distributors had colluded together to persuade BASF not to appoint Zantra.
Barling J held that the material before the Court constituted a sufficient inference of anti-competitive collusion. He further held that since BASF was in possession of documents and information concerning the nature of the approaches from the national distributors, and that Zantra needed that information in order to bring its claim against them, BASF was obliged to disclose that material to Zantra under the Norwich Pharmacal jurisdiction. BASF was not a mere bystander, but had become innocently mixed-up in the wrongdoing, as it was BASF’s decision to revoke Zantra’s appointment as distributor which gave rise to the alleged harm to competition.
A summary of the judgment is available to LawTel subscribers here. The full judgment is not yet available but a link to it will be provided once it has been approved.
Colin West, instructed by Fieldfisher, appeared for Zantra.
Aidan Robertson QC, instructed by Gordons, appeared for BASF.