MasterCard UK Members Forum Limited; MasterCard International Incorporated and MasterCard Europe Sprl; and Royal Bank of Scotland Group v Office of Fair Trading  [2006] CAT 2 (31 January 2006)
Case No  1054/1/1/05; 1055/1/1/05, 1056/1/1/05
IN THE COMPETITION
APPEAL TRIBUNAL

Victoria House,
Bloomsbury Place,
London WC1A 2EB
31 January 2006

Before:
SIR CHRISTOPHER BELLAMY
(President)
DR. ARTHUR PRYOR
DAVID SUMMERS
(Sitting as a Tribunal in England and Wales)

BETWEEN:

MASTERCARD UK MEMBERS FORUM LIMITED
and
MASTERCARD INTERNATIONAL INCORPORATED AND
MASTERCARD EUROPE SPRL
and
ROYAL BANK OF SCOTLAND GROUP	Appellants

Supported by
VISA (EUROPE) LIMITED AND VISA (UK) LIMITED	Intervener

-and-
OFFICE OF FAIR TRADING	Respondent

Supported by
BRITISH RETAIL CONSORTIUM	Intervener
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Transcribed from the Shorthand notes of
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RULING: DISCLOSURE

APPEARANCES

Mr. Nicholas Green QC (instructed by Lovells) appeared for the First Appellant, MasterCard UK Members Forum.

Mr. Thomas Sharpe QC and Mr. Matthew Cook (instructed by Jones Day) appeared for the Second Appellant, MasterCard International Incorporated and MasterCard Europe Sprl.

Mr. Christopher Carr QC and Mr. Mark Hoskins (instructed by Ashurst) appeared for the Third Appellant, Royal Bank of Scotland Group.

Mr. Jon Turner and Mr. Josh Holmes (instructed by the Solicitor, Office of Fair Trading) appeared for the Respondent.

Ms. Kelyn Bacon (instructed by Freshfields Bruckhaus Deringer) appeared for the First Intervener, Visa (Europe) Limited and Visa (UK) Limited.

Mr. Aidan Robertson (instructed by Dechert LLP) appeared for the Second Intervener, British Retail Consortium.

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 THE PRESIDENT: 
1	The British Retail Consortium, Intervener in this case, seeks disclosure of some 39 documents from the various Appellants on the basis that it is to file its Statement of Intervention by 7 March 2006, and that it is in difficulty preparing that Intervention and instructing its experts unless it sees unredacted versions of the documents in question.

2	The BRC submits that it is, in general, better placed than the OFT to make certain submissions on behalf of retailers and it has put forward an extremely focused request for disclosure.  Certain documents, it has accepted, should be confined to a confidentiality ring consisting of legal advisers and certain named economists, while other documents, it is said, could go also to a working group formed of various representatives of certain members of the BRC.  As to the last point, we would have very great difficulty in extending the idea of  a confidentiality ring to a working group of that nature, but it is unnecessary for us to say any more about that at this stage.

3	The OFT broadly supports the position taken by the BRC on the basis that the OFT’s case is that the merchants are the victims of what is alleged to be an agreement infringing the Chapter I prohibition and Article 81 of the EC Treaty, and that they should be in a full position to make their comments to the Tribunal.

4	The Appellants oppose the application on a number of grounds.  They rely on a lack of particularity, they rely on the highly confidential nature of at least certain information, some of which is described as the “Crown Jewels”, or, in the case of one Appellant, the Royal Bank of Scotland, highly confidential information about possible future strategy or developments.

5	The Appellants submit that there could be no added value that the BRC can bring, as it were, to the party, that to allow the intervention to develop in an extended way would lead to a disproportionate proliferation of submissions, documents and effort, and would go beyond the proper scope of an intervention of an Intervener in the position of the BRC.

6	They also point out that a strange position would arise as regards Visa, who are also an Intervener in this case but have not made an application to see these confidential documents.  The position might be that the BRC had certain documents that Visa did not have, which would complicate the case procedurally, so it is submitted.

7	Those being the main outlines, we are at the case management stage in this case and it seems to us that we should deal with the matter on the basis that we consider to be most efficient from the case management point of view.  The most important thing, in our view, at this stage is to get this case, as it were, on the road so that we can begin to see the issues in further detail.

8	In any case, where confidentiality is claimed, there are essentially three questions:  first of all, is confidentiality properly claimed having regard to the test which is set out in Schedule 4 of the Enterprise Act?  Secondly, if, at first sight, the material is properly confidential, is it nonetheless something that is very likely to be necessary for explaining the reasons for the Tribunal’s decision, in which case it is extremely difficult, for obvious reasons, to keep the matter confidential?  Thirdly, and in any event, what is the balance of interest between the various parties which requires disclosure?  In a case such as the present, that does raise an issue which, as far as the Tribunal is aware, has not really been dealt with in previous judgments to date, which is, “What is the role of the Intervener in a case such as the present?” or, to put it more precisely, “What is it that falls for the OFT to do and what is it for the Intervener to do?”

9	In our view, we cannot really decide any of those questions without considering the individual documents, and that is likely to be, if we had to do it, a time consuming and extensive exercise.  It is certainly an exercise that the Tribunal would be prepared to embark on if necessary in an appropriate way, but in order to embark upon such an exercise we do need a very clear idea of the relevance of the documents in dispute, how far they are likely to be material to the issues in the case and to what extent the various claims and cross-claims for confidentiality and necessity are to be balanced.

10	Our view is that it is difficult to embark on such an exercise at this stage before we have the OFT’s Defence and before we have the Statement of Intervention of the BRC.  The OFT’s Defence is due on 28 February 2006.  We would not wish to see any slippage in this case as a result of having to delay either that Defence or the Statement of Intervention which is due on 7 March 2006.  It is true that the BRC would have, on that timetable, to prepare its Statement of Intervention without having seen all the detail in the documents that have been disclosed, but, on the other hand, as far as we are aware, a great deal of information has already been disclosed.  It does not seem to us impossible for a Statement of Intervention to be prepared and filed on the basis of existing information.

11	Once we have got the OFT’s Defence and we have BRC’s Statement of Intervention, albeit prepared on, from their point of view, a less complete basis than they would have wished, it seems to the Tribunal that the issues in the case will be much more crystallised and focused than they are at the moment.  In particular, at that stage, we can see, on the basis of more detailed argument, why certain information is, or might be, really wanted, and what steps we should take in that regard.  We will also be able to see exactly what the OFT’s position is on various points and take a view as to how far it is necessary for the proper management of this case for the Intervener to supplement what the OFT is saying or whether it is sufficient for the OFT to take the lead on various issues, bearing in mind that this case is essentially a case between the Appellants and the OFT in which the latter is the Defendant and has to justify its Decision.  The OFT has seen all the material and should, one would have supposed, be in a position to deal with it.  Nonetheless, at that later stage there may still be some scope for further disclosure to BRC. 

12	We are not closing the door on that issue.  We, however, take the view that it is an issue that is more easily and properly addressed when we are a little further down the line and we can see exactly to what extent and where the battle lines are joined and what pieces of information are relevant to what.  We can see in one or two of the documents that we have only really had a chance to consider very provisionally that there may be one or two passages or certain kinds of information for which it is, in fact, going to be extremely difficult to maintain confidentiality as the case goes on, but we are not today proposing to cross any of those particular bridges, but to adjourn this application to a date to be fixed once the Defence and the Statement of Intervention have been filed.

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