Competition Commission v Nutanix Hong Kong Ltd
Competition Tribunal
Competition Tribunal Enforcement Action No. 1 of 2017
Godfrey Lam J, President, in Chambers
12 June 2017

Case management – proceedings in Competition Tribunal – first case management conference – necessary directions to enable matter to proceed to substantive hearing fairly, expeditiously and economically

Competition Tribunal Practice Direction No. 1 provides that the object of the first case management conference (“CMC”) in proceedings in the Competition Tribunal (the “Tribunal”) was to identify the necessary directions to enable the matter to proceed to a substantive hearing fairly, expeditiously and economically. At the first CMC in such proceedings brought by the Competition Commission (the “Commission”) against R1–5, which was heard on 26 May 2017, the parties sought, inter alia, an order sanctioning a proposed confidentiality protocol whereby a “confidentiality ring” of nominated persons would undertake to use specified documents without redaction only for the purpose of the proceedings and not to disclose them to anyone outside the ring; and if everyone else was to be given documents, only copies with confidential information redacted would be provided.

Held, that:

  • Regarding the parties’ proposed confidentiality protocol, the order (and corresponding undertaking) should offer wide protection by directing that all documents produced in the proceedings must only be used in connection therewith, leaving the collateral use of the documents subject to the parties’ consent or the direction of the Tribunal.
  • As for discovery, by agreement, the Commission would disclose both used and unused materials and provide an affidavit to verify its lists of documents (the “Lists”). A deadline of 12 weeks from the date of the Lists was imposed for any application for discovery from third parties.
  • Concerning applications to strike out any part of the originating notice of application (“ONA”) or to determine the admissibility of statements under s. 45 of the Competition Ordinance (Cap. 619) (the “Ordinance”) (on the issue of self-incrimination), since R2 had earlier issued such an application by summons which was fixed to be heard on 18 September 2017, it was directed that any such further application should be made at least 28 days before that date. If other Rs wished the Tribunal to consider hearing their applications and evidence at the same time as R2’s summons, they might need to apply substantially earlier than that deadline.
  • As no party would definitely rely on expert evidence, any application for directions on expert evidence had to be made within 12 weeks of the date of the Lists.
  • Any application for the issue of a witness summons under r. 36 of the Competition Tribunal Rules (Cap.169D, Sub. Leg.) (the “Rules”) was to be made on or before 4 December 2017 (ie, about two weeks after the exchange of witness statements).
  • By consensus, the next CMC was fixed for 13 December 2017. Given the case primarily concerned events over 11 days in July 2016 relating to a single tender, the period of 1 May to 30 June 2017 was targeted as the range of dates for the substantive hearing of the application, with the parties to confer and propose the actual trial dates within one week.
  • Regarding R3’s summons for an extension of time to file its response to the ONA under r. 75 of the Rules, all the documents mentioned in the ONA had already been provided to it. Other Rs had filed or would file their responses by today. R3’s position was not so radically different that it required fundamentally different treatment and a deferment of filing its response. However, as the Commission had no objection, a final extension of 14 days was granted.
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