English High Court grants disclosure of leniency materials in antitrust follow-on damages claim

On 4 April 2012, the English High Court gave a long-awaited judgment on an application for disclosure of certain documents provided to the European Commission. These documents were provided to the Commission on a voluntary basis in an effort to seek leniency from fines that could otherwise have been imposed for participation in a cartel.

The judgment confirms that the English High Court will be prepared in appropriate cases to order the disclosure of leniency materials to claimants in English follow-on proceedings. In that respect, it may make the English High Court a more claimant friendly forum for follow-on claims relative to courts in other Member States.

This ruling also increases the complexity associated with decisions to apply for leniency. The assessment of whether the likely discount in fines available from the Commission may be outweighed by increased exposure to damages in follow-on litigation down the line will now need to factor in the consequences in terms of disclosure of leniency applications.

This briefing considers the ruling and its likely effect on private antitrust damages actions and potential leniency applicants.