Monthly Archives: March 2013

Albion v Dwr Cymru: Incompetence and counterfactuals

The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in relation to the price it was prepared to charge Albion for the use of its water pipes.

The 130-page judgment consists largely of a detailed analysis of the counterfactual – i.e. what would have happened, and what profits would Albion have made, if Dŵr Cymru had not behaved abusively. It is, however, worth highlighting two points which will be of more general interest. Continue reading

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Filed under Abuse, Damages

The OFT’s tobacco decision: Is it dead yet?

Late in 2011, the Office of Fair Trading was forced to concede before the Competition Appeal Tribunal that it could no longer defend the theory of harm contained in its Decision on alleged pricing agreements between tobacco manufacturers and retailers.

However, the OFT refused to simply give up, and instead tried to persuade the CAT to allow it to run a new case. One of the barristers before the CAT (step forward Dinah Rose QC) described the OFT’s new case as “Frankenstein”, a corpse stitched together from components of the abandoned Decision. She invited the CAT to bury the corpse. It duly did so: the OFT was not allowed to run a new case, and the Appellants succeeded in their appeals.

The OFT’s original Decision, however, was not quite dead. Continue reading

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Filed under Agreements, Procedure

Anticompetitive behaviour by professional regulators – Wouters naturalised

The ECJ’s judgment in Case C-309/99 Wouters – that the Dutch legal regulator was an association of undertakings for the purposes of competition law, but that its prohibition on partnerships between lawyers and accountants nevertheless fell outside Article 101(1) having regard to its context and objectives – was a controversial one.

To some it suggested the emergence in European competition law of a “rule of reason”. Professor Whish preferred to treat it as an example of a standalone doctrine of “regulatory ancillarity” that enabled the courts to overlook the incidentally anticompetitive effects of primarily regulatory measures. Whatever the explanation, it was clear that the ECJ had introduced a doctrine which cut across the express wording of Article 101(1) and allowed measures of certain types to benefit from an unwritten exemption. It was unclear whether that doctrine was a new beginning or an evolutionary dead-end. Continue reading

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Filed under Abuse

Appeals on the merits: only pick a hole if you can fill it

In his recent blog “Down the rabbit hole,  Tom Richards described the “quasi judicial review within an appeal” contained in s.193(7) Communications Act 2003 as something of a Wonderland.

Last Wednesday it was the turn of the Court of Appeal to enter Wonderland. However, the judgment of Moses LJ in Everything Everywhere Ltd v Competition Commission and ors [2013] EWCA Civ 154 gives important general guidance on the evidence needed for an appeal “on the merits”. It is likely to be of assistance to appellants in a variety of contexts, whether or not they have ventured into this particular statutory Wonderland. Continue reading

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Filed under Procedure, Telecoms