COMPETITION COMMISSION v. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS

COMPETITION COMMISSION v. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS

The Tribunal directed that liability should be determined first and penalty determination adjourned pending trial or Kam Kwong settlements; consolidation requires applications in both proceedings and demonstration that cases ought to be dealt with together; the confidentiality regime must place the burden on the...

Source-derived case information.

Citation
[2023] HKCT 9
Parties
Applicant: COMPETITION COMMISSION; 1st Respondent: ATAL BUILDING SERVICES ENGINEERING LIMITED; 2nd Respondent: JOHNSON CONTROLS HONG KONG LIMITED; 3rd Respondent: YORK INTERNATIONAL (NORTHERN ASIA) LIMITED; 4th Respondent: JOHNSON CONTROLS INTERNATIONAL PLC; 5th Respondent: LEE YUI MING
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
25 October 2023
Case Number
CTEA2/2023
Procedural Posture
Competition Tribunal Enforcement Action / First Case Management Conference
Outcome
Case management directions given: hearing fixed for Kam Kwong application; issues to be fully addressed at hearing; confidentiality directions amended; cooperation agreements and associated communications ordered discoverable; Commission to circulate draft order.
Legal Topics
Kam Kwong Application, Consolidation of Proceedings, Pecuniary Penalties, Confidentiality Orders, Cooperation/leniency Agreements, Sequencing of Liability and Penalty
Source Language
en
Competition Law Civil Procedure Evidence Confidentiality Disclosure/discovery Kam Kwong Application Consolidation of Proceedings Pecuniary Penalties +3 more

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Parties

COMPETITION COMMISSION

Applicant

ATAL BUILDING SERVICES ENGINEERING LIMITED

1st Respondent

JOHNSON CONTROLS HONG KONG LIMITED

2nd Respondent

YORK INTERNATIONAL (NORTHERN ASIA) LIMITED

3rd Respondent

JOHNSON CONTROLS INTERNATIONAL PLC

4th Respondent

LEE YUI MING

5th Respondent

Procedural Posture

Competition Tribunal Enforcement Action / First Case Management Conference

Legal Issues

  1. 1 Whether one pecuniary penalty can be imposed across two separate proceedings
  2. 2 Whether consolidation may be ordered and the procedural requirement that consolidation applications be brought in both proceedings
  3. 3 Whether the Tribunal should determine liability first and adjourn penalty determination until after trial or after all Kam Kwong settlements

Ratio Decidendi

The Tribunal directed that liability should be determined first and penalty determination adjourned pending trial or Kam Kwong settlements; consolidation requires applications in both proceedings and demonstration that cases ought to be dealt with together; the confidentiality regime must place the burden on the party asserting confidentiality (adopting the respondents' proposed wording for non-confidential documents); and cooperation/leniency agreements and associated communications that resulted in successful cooperation are discoverable and not protected by without prejudice privilege.

Court Disposition

Case management directions given: hearing fixed for Kam Kwong application; issues to be fully addressed at hearing; confidentiality directions amended; cooperation agreements and associated communications ordered discoverable; Commission to circulate draft order.

Orders

  • Parties to address at the 27 November 2023 hearing whether one pecuniary penalty can be imposed in two different proceedings and, if so, the matters to be taken into account in determining such a penalty
  • Any application to consolidate CTEA 2/2022 and CTEA 2/2023 must be made in both proceedings and respondents in both proceedings must be afforded opportunity to make submissions