COMPETITION COMMISSION v. NUTANIX HONG KONG LTD AND OTHERS

COMPETITION COMMISSION v. NUTANIX HONG KONG LTD AND OTHERS

The Tribunal held that the parties had mixed success across distinct categories of documents; the Commission prevailed on Classes 1 (leniency/informer\u2019s privilege) and 5 (without prejudice) but failed on Classes 3, 4, much of 6 and most Mr D documents, and the Commission\u2019s blanket public interest immunity and irrelevance arguments were rejected; accordingly costs should be apportioned and the Commission was ordered to pay one-third of SiS\u2019s costs including a certificate for two counsel, taxed if not agreed.

Citation
[2018] HKCT 3
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; 5th Respondent: Tech21 Systems Limited
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
31 July 2018
Case Number
CTEA1/2017
Procedural Posture
Competition Tribunal Enforcement Action / Decision on Costs
Outcome
Commission ordered to pay one-third of SiS International Limited's costs of the application including costs of the written argument on costs, with a certificate for two counsel, to be taxed if not agreed.
Legal Topics
Discovery, Litigation Privilege, Informer\u2019s Privilege/leniency Materials, Without Prejudice Privilege, Public Interest Immunity, Costs Allocation
Source Language
EN
Competition Law Civil Procedure Evidence Administrative Law Discovery Litigation Privilege Informer\u2019s Privilege/leniency Materials Without Prejudice Privilege +2 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

4th Respondent

Tech21 Systems Limited

5th Respondent

Procedural Posture

Competition Tribunal Enforcement Action / Decision on Costs

Legal Issues

  1. 1 Whether the Commission or SiS was the overall successful party for costs purposes
  2. 2 Scope and disclosability of internal documents and relevant classes of documents
  3. 3 Application and scope of litigation privilege and informer\u2019s (leniency) privilege

Ratio Decidendi

The Tribunal held that the parties had mixed success across distinct categories of documents; the Commission prevailed on Classes 1 (leniency/informer\u2019s privilege) and 5 (without prejudice) but failed on Classes 3, 4, much of 6 and most Mr D documents, and the Commission\u2019s blanket public interest immunity and irrelevance arguments were rejected; accordingly costs should be apportioned and the Commission was ordered to pay one-third of SiS\u2019s costs including a certificate for two counsel, taxed if not agreed.

Court Disposition

Commission ordered to pay one-third of SiS International Limited's costs of the application including costs of the written argument on costs, with a certificate for two counsel, to be taxed if not agreed.

Orders

  • The Competition Commission must pay one-third of SiS International Limited\'s costs of the discovery application, including the costs of the written argument on costs, with a certificate for two counsel, to be taxed if not agreed.