Cement company loses most of appeal for documents in alleged market abuse case

Goode Concrete claimed competitors engaged in predatory selling to eliminate it

Photograph: Bryan O’Brien

Photograph: Bryan O’Brien

 

The Court of Appeal has dismissed most of an appeal over discovery of documents sought by a cement manufacturer for its action against two rival companies for alleged abuse of dominant market position.

Goode Concrete, which ceased trading in 2011, claims CRH, its 100 per cent-owned subsidiary Roadstone Wood, and a third company, Kilsaran Concrete, breached the Competition Act 2002 and the Treaty on the Functioning of the EU.

It says, in the years before it closed, the three rivals engaged in predatory selling concrete in the Dublin ready-mix market with the aim of eliminating Goode from the market.

It claims CRH has close links with Kilsaran.

It says it needs certain documents and communications held by the three companies in relation to their operations in order to properly prepare for its High Court action for damages for alleged conspiracy and inducement to breach contract, among other claims.

It made pre-trial applications for discovery to the High Court which in 2017 made orders requiring the defendants to provide limited information but refused most of the categories sought.

Goode appealed those orders and the three respondents opposed the appeal and cross appealed in relation to certain orders.

Goode also appealed orders against it, including an order that Peter Goode,a director of another ready mix company called Eircem Limited, be prevented from accessing documents because of their commercial sensitivity.

Upheld

On Wednesday, a three-judge Court of Appeal upheld the High Court decision except in relation to to certain information, including contracts involved in alleged selling of concrete below average variable cost.

Ms Justice Caroline Costello, on behalf of the court, agreed with the High Court that discovery sought in a bid to establish alleged close links between CRH/Roadstone and Kilsaran was “no more than a bare assertion” and fishing exercise to make out a case in support of that bare assertion.

The High Court was correct in finding that documents related to monthly management reports or assessment of performance targets will not be relevant to the issue of actual market share of Roadstone, she said.

She said discovery of communications with other competitors, in relation to who there were no anti-competitive conduct allegations, would be speculative and unduly burdensome.

Information on other allegations in relation to the alleged extent of discounts given by CRH to Kilsaran was so vague and speculative they cannot properly ground an order for discovery, she said.