COMPETITION COMMISSION v. NUTANIX HONG KONG LTD AND OTHERS

COMPETITION COMMISSION v. NUTANIX HONG KONG LTD AND OTHERS

The Tribunal balanced the public interest in protecting leniency applicants and encouraging frank cooperation against the respondents’ right to relevant material and concluded that (1) Class 1 leniency documents and Class 5 unsuccessful without prejudice communications may be withheld on informer privilege and without prejudice privilege/public interest immunity grounds; (2) the original complaint form (Class 3) is disclosable to the confidentiality ring because the complainant’s identity was already deployed by the Commission; (3) Class 6 internal documents are not immune as a whole and relevance must be judged by content; certain narrow internal reports/minutes and records revealing...

Citation
[2018] HKCT 1
Parties
Applicant: Competition Commission; 1st Respondent: Nutanix Hong Kong Limited; 2nd Respondent: BT Hong Kong Limited; 3rd Respondent: SIS International Limited; 4th Respondent: Innovix Distribution Limited (trading as "INNOVIX DISTRIBUTION"); 5th Respondent: Tech21 Systems Limited
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
14 March 2018
Case Number
CTEA1/2017
Procedural Posture
Competition Tribunal Enforcement Action Under the Competition Ordinance (cap 619) Seeking Declaration Under S94 and Pecuniary Penalties Under S93 / Interlocutory Decision on Discovery Application and Claims of Privilege/public Interest Immunity
Outcome
Application granted in part and refused in part: Tribunal ordered targeted disclosure of specified documents and refined limits on privilege claims; denied wholesale disclosure requests for leniency and unsuccessful without prejudice communications.
Legal Topics
Leniency Policy, Informer Privilege, Without Prejudice Privilege, Legal Professional Privilege, Public Interest Immunity, Discovery and Disclosure Obligations, Search Warrants, Cooperation/settlement Agreements
Source Language
EN
Competition Law Civil Procedure Evidence Law Administrative Law Leniency Policy Informer Privilege Without Prejudice Privilege Legal Professional Privilege +4 more

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Parties

Competition Commission

Applicant

Nutanix Hong Kong Limited

1st Respondent

BT Hong Kong Limited

2nd Respondent

SIS International Limited

3rd Respondent

Innovix Distribution Limited (trading as "INNOVIX DISTRIBUTION")

4th Respondent

Tech21 Systems Limited

5th Respondent

Procedural Posture

Competition Tribunal Enforcement Action Under the Competition Ordinance (cap 619) Seeking Declaration Under S94 and Pecuniary Penalties Under S93 / Interlocutory Decision on Discovery Application and Claims of Privilege/public Interest Immunity

Legal Issues

  1. 1 Scope of discovery by the Competition Commission in enforcement proceedings
  2. 2 Whether leniency communications attract informer privilege or public interest immunity
  3. 3 Applicability of without prejudice privilege to communications between regulator and potential respondents/leniency applicants

Ratio Decidendi

The Tribunal balanced the public interest in protecting leniency applicants and encouraging frank cooperation against the respondents’ right to relevant material and concluded that (1) Class 1 leniency documents and Class 5 unsuccessful without prejudice communications may be withheld on informer privilege and without prejudice privilege/public interest immunity grounds; (2) the original complaint form (Class 3) is disclosable to the confidentiality ring because the complainant’s identity was already deployed by the Commission; (3) Class 6 internal documents are not immune as a whole and relevance must be judged by content; certain narrow internal reports/minutes and records revealing...

Court Disposition

Application granted in part and refused in part: Tribunal ordered targeted disclosure of specified documents and refined limits on privilege claims; denied wholesale disclosure requests for leniency and unsuccessful without prejudice communications.

Orders

  • Applicant to file and serve within 14 days a List of Documents to include: all documents under Class 3 and all documents passing between the Applicant and "other parties" under Class 4 in Part 2 of Schedule 1 to the Applicant's List dated 23 June 2017; all documents under Class 6 in Part 2 of Schedule 1 to the...
  • Applicant to file and serve at the same time an affidavit verifying the List and setting out (if applicable) its claim for public interest immunity in respect of any documents.