Summary of Judgment

Factual and Procedural Background

This judgment was delivered by Judge Barrett on 21 November 2025. The Plaintiff applied, by motion dated 24 July 2024, for an order under Order 31, rule 18(1) of the Rules of the Superior Courts (RSC) (and/or the inherent jurisdiction of the Court) directing the Defendant to produce for inspection, and to provide a copy of, a document identified in a notice to produce dated 26 June 2024. The document in question was the formal request for assistance sent by Company A to the Defendant on 27 February 2024 (the "Document").

The application formed one of three heard over a three-day period. The Court had earlier given judgment on a related first application on 18 November 2025 and proceeded to determine this inspection application against that factual backdrop. The Defendant confirmed it would not place the Document in evidence. The Plaintiff seeks inspection on the basis that the Document is necessary to advance pleaded challenges to the lawfulness of the Defendant's assistance to Company A and to the search warrant later issued by a District Judge. The Defendant sought to resist production on grounds including irrelevance, public interest/executive privilege, and EU-law confidentiality governing communications between national competition authorities within the European Competition Network ("the Network"). The Defendant also brought a successful strike-out application under s.15AAA of the Competition Act 2022, although the Court proceeded to decide this application on its merits.

Legal Issues Presented

1. Whether an inspection order under O.31, r.18 RSC should be made for the Document — i.e., whether inspection is "necessary either for disposing fairly of the cause or matter or for saving costs" (the r.18 necessity threshold).
2. Whether the Document is relevant and necessary to the Plaintiff's pleaded grounds challenging the lawfulness of the Defendant's assistance to Company A and the lawfulness of the search warrant issued by the District Judge.
3. Whether the Document is protected from disclosure by public interest/executive privilege and by EU-law confidentiality (in particular Article 27(2) of Regulation 1/2003 and related EU instruments and jurisprudence) governing communications between national competition authorities.
4. Whether a proportionality obligation required the Defendant (or the District Judge) to disclose the Document or to perform a proportionality assessment in deciding to accede to Company A's request and to seek a warrant.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that O.31, r.18 applies to documents merely referred to in affidavits or pleadings and that it was entitled to inspect the Document even if the Defendant did not intend to adduce it in evidence.
• The Plaintiff argued the Document was likely relevant because it was the formal request that triggered the District Court application and search warrant, and therefore inspection was necessary to adjudicate fairly on the lawfulness of the Defendant's assistance and the warrant.
• The Plaintiff asserted that redactions would be acceptable and that no proper evidence had been adduced to show that disclosure would jeopardise cooperation within the Network.
• The Plaintiff relied on rule-of-law and effectiveness principles, contending that inspection was necessary to secure an effective remedy and to vindicate constitutional rights potentially engaged by a search warrant.
• The Plaintiff disputed that Article 27(2) of Regulation 1/2003 applies to communications between national competition authorities in the context of domestic proceedings and submitted that recitals and Commission case-file rules did not bar disclosure in the present domestic context.

Defendant's Arguments

• The Defendant confirmed it would not place the Document in evidence and submitted that this complied with O.31, r.15; inspection under O.31, r.18 requires a separate and mandatory showing of necessity, which the Plaintiff had not met.
• The Defendant argued the Document was irrelevant to the pleaded grounds because the District Judge issued the warrant solely on the basis of the sworn information and associated oral evidence presented in the District Court and there was no evidence the Document was opened to or relied on by the District Judge.
• The Defendant maintained the Document is a highly confidential NCA-to-NCA communication protected by EU-law confidentiality (Article 27(2) of Regulation 1/2003 and Recital 14 of Directive 2019/1) and by public interest/executive privilege; disclosure (including redacted disclosure) would jeopardise cooperation within the Network.
• The Defendant relied on evidence from the Directorate General of Company B (the European Commission) in parallel proceedings expressing that disclosure would severely compromise the efficacy of the Network and the ongoing investigation.
• The Defendant submitted that proportionality does not form part of the statutory or EU-law framework governing Article 22 assistance or the District Judge's warrant test, and thus proportionality did not render the Document necessary or relevant to the present challenge.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court proceeded through a structured analysis focused on the procedural threshold under O.31, r.18 RSC and applicable EU-law confidentiality and public interest principles.

1. Threshold under O.31, r.18 RSC: The Court emphasised that inspection under r.18 is available only where the applicant demonstrates that inspection is "necessary either for disposing fairly of the cause or matter or for saving costs." The burden lies on the Plaintiff to demonstrate necessity; mere reference to a document in affidavit or pleadings does not confer entitlement to inspection.
2. Evidence of operative role: The evidence before the Court indicated the Document played no operative role in the decisions challenged. The warrant issued on the basis of the sworn information and associated oral evidence presented to the District Judge; there was no evidence the Document was opened to, or relied upon by, the District Judge. Consequently, the Document was irrelevant to the decisive legal test applied by the District Judge.
3. Relevance and necessity: Because the Document was an internal, preliminary communication between NCAs and because it did not form part of the operative evidence before the District Judge, the Court concluded inspection was unnecessary for advancing the Plaintiff's pleaded grounds. The Plaintiff had not demonstrated the necessary link between the Document and any pleaded issue.
4. EU-law confidentiality: The Court applied Article 27(2) of Regulation 1/2003, Recital 14 of Directive 2019/1, and CJEU jurisprudence to recognise a structural presumption of confidentiality for communications between NCAs. That presumption applies to requests made under Article 22 and to NCA-to-NCA correspondence more generally. The Court found that releasing the Document would jeopardise cooperation within the Network and that this presumption could not be displaced on the facts before it.
5. Evidence of jeopardy: The Court gave weight to the Directorate General's intervention in related proceedings (expressing that disclosure would "severely compromise the efficacy of the network and the ongoing investigation") as a factual indicator of the risks the EU confidentiality regime seeks to avoid. The Court concluded that redactions would not overcome the confidentiality attached to the category of communication.
6. Proportionality and balancing: Although the Court acknowledged that, in some cases, a proportionality or balancing exercise (as described in Independent Newspapers and Pfleiderer) may permit disclosure, it concluded that such balancing could not be meaningfully undertaken here. The public body principally concerned (Company A) was not a party in these proceedings and the Plaintiff had not demonstrated necessity. Even if relevance were shown, a proportionality assessment would favour protecting NCA cooperation and confidentiality.
7. Rule of law and effectiveness arguments: The Court addressed the Plaintiff's arguments invoking the rule of law and effective remedy but concluded those principles do not permit the national court to set aside a specific EU-law confidentiality obligation. The Plaintiff already had access to the sworn information and the transcript of oral evidence that actually grounded the warrant, so refusal to disclose the Document did not render the Plaintiff's right to an effective remedy nugatory on the facts presented.
8. Discretion and conclusion: Exercising the broad discretion conferred by O.31, r.18 and having regard to the sensitive EU-law and public-interest dimensions, the Court concluded there was no basis to order production or inspection of the Document and refused the application.

Holding and Implications

REFUSED — The Plaintiff's application for production and inspection of the Document under O.31, r.18 RSC (and/or the Court's inherent jurisdiction) was refused.

Implications:

• The immediate practical effect is that the Plaintiff will not obtain inspection or a copy of the Document in these proceedings.
• The Court treated the Document as confidential and protected by both public interest/executive privilege and by the EU-law confidentiality regime governing NCA-to-NCA communications (in particular Article 27(2) of Regulation 1/2003 and related instruments and jurisprudence).
• The Court found the Plaintiff had not demonstrated the necessity required by O.31, r.18 RSC; the Document did not play an operative role in the District Judge's warrant decision and disclosure would jeopardise Network cooperation.
• No broader declaration of new legal principle was made beyond applying existing authorities and EU-law constraints; the decision operates as a case-specific application of established procedural, public-interest and EU confidentiality rules.
• The Court reserved the question of costs and stated it would hear the parties on costs.