Monthly Archives: August 2012

by Andrew Scott | August 18, 2012 · 5:08 pm

CAT unlimited: the Deutsche Bahn decision

Where the Commission has issued a decision finding several addressees liable for the same infringement, amongst the more important tactical questions for a claimant in the UK are: where to sue the addressees and when? The decision of the Court of Appeal in Deutsche Bahn & AG & Ors v Morgan Crucible Company plc & Ors [2012] EWCA Civ 1055 – regarding limitation rules applicable to follow on claims – makes the CAT more attractive than ever.

In an important and long-awaited judgment, the Court held that the two year limitation period under r. 31 of the CAT Rules does not begin to run against any addressee until the time for appealing against the Commission’s decision has expired against all of them. Continue reading →

Keeping the CAT in its bag: the 08 Appeal

Ofcom will likely be delighted by the result in the Court of Appeal’s decision in Telefonica O2 UK Limited and others v British Telecommunications PLC [2012] EWCA Civ 1002, in which the Regulator appeared as an interested party.

Not only does the judgment uphold Ofcom’s various dispute determinations relating to ladder pricing by BT for termination of calls to certain non-geographic number ranges, but the judgment make Ofcom’s life easier in a number of respects.

First, and for the immediate future, Ofcom will likely benefit from a decrease in its dispute determination workload. The decision of the CAT which was challenged before the Court of Appeal had generated a web of interlinked disputes raised by various communications providers to be determined by Ofcom under the s.185 Communications Act 2003 procedure. Continue reading →

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by Paul Luckhurst | August 10, 2012 · 4:49 pm

Fairness between infringers: the need for consistency in punishments

Competition lawyers may want to brush up on their criminal law. The Court of Appeal’s recent judgment in Interclass Holdings v OFT [2012] EWCA Civ 1056 borrows criminal law principles to guide the calculation of penalties imposed.

The appeal was a further instalment in the litigation arising from the OFT’s largest ever investigation under the Competition Act 1998 concerning collusive tendering practices in the construction industry. A round of litigation before the Tribunal had resulted in substantial reductions in the fines imposed by the OFT on many of the appellant undertakings. This further appeal by Interclass concerned the application by the Tribunal of a 100 per cent uplift to the provisional fine payable by Interclass with the intention of adequately deterring both Interclass and other undertakings from committing infringements in the future.

The Court of Appeal accepted that the Tribunal had correctly followed a staged approach to the calculation of the penalty, beginning with starting figures based on the seriousness of the infringements and then proceeding to consider whether an uplift should be applied for deterrence.

However, the Court borrowed two important concepts from criminal law. Continue reading →

As long as the regulator’s foot

The Court of Appeal’s remarks in BT v Ofcom (Partial Private Circuits) make Ofcom’s dispute-resolution power a still more distinctive alternative to court litigation, and in the right circumstances a more attractive one.

The appeal arose out of a dispute, brought to Ofcom under s.185 Communications Act 2003, about whether BT had overcharged for partial private circuits (“PPCs”), components necessary for other communications providers to extend their networks. Ofcom decided in 2009 that it had, and ordered repayment. That decision was upheld by the CAT on appeal.

Much of BT’s further appeal to the Court revolved around whether Ofcom had failed to take various aspects of the domestic and European regulatory framework into account. The Court ruled that it had not.

But there were two issues of greater long-term interest. Continue reading →

Cardiff bust-up: abuse of dominance, follow-on claims and exemplary damages

In 2 Travel Group PLC (in liquidation) v Cardiff City Transport Services Limited [2012] CAT 19 the Tribunal has made the first ever domestic award of exemplary damages for breach of competition law. The case is a significant landmark, but involves no radical development of the law; it is certainly not a declaration of “open season” for exemplary damages claims.

The Claimant, 2 Travel, was a struggling South Walian bus company. The Defendant traded as “Cardiff Bus” and, true to its name, was the major player in the Cardiff bus market.

In 2004, war broke out on the city streets. 2 Travel launched a new, “no frills” bus service in Cardiff. Cardiff Bus retaliated with force. It laid on “battle buses” (a term used, rather infelicitously, in its own internal documents), which were carefully planned to arrive just before 2 Travel’s buses and snatch 2 Travel’s potential customers. The militarism of Cardiff Bus’s response extended even to internal recruitment of drivers for the covert war against 2 Travel with a spoof of the famous First World War poster of Lord Kitchener: “Your Company Needs YOU”. 2 Travel’s Cardiff venture failed, and in 2005 the company entered liquidation. Continue reading →

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