Author Archives: Tom Richards

About Tom Richards

Barrister at Blackstone Chambers.

Blown out of the water? Air Cargo and the future of extra-EU/EEA cartel damages claims

If the captain of a trading ship fires cannon on a canoe to prevent the canoeists trading with another boat vying for their trade, that boat’s owners can sue the captain: Tarleton v M’Gawley (1793) Peake 270. An intention to gain where your gain must be another’s loss is an intention to injure the other for the purposes of the “unlawful means” economic torts: OBG v Allen [2007] UKHL 21, [63] per Lord Hoffmann, [164]-[167] per Lord Nicholls.

What if there are two other boats competing for the canoe’s business, and the captain doesn’t care which of them will lose out? In such a case there remains an intention to injure, even though one of the victims will in fact have suffered no loss, because ‘there is the intent to damage the identifiable and known class of two boats’, competition for the canoe’s business being ‘effectively a zero-sum game’. So the Court of Appeal accepted in its judgment yesterday [2015] EWCA Civ 1024 in the Air Cargo litigation at [168]-[169].

But swap cannon for cartels; increase the number of victims; change boats for air cargo shippers and freight forwarders; exeunt the canoeists and enter The Gondoliers. In W.H. Newson [2013] EWCA Civ 1377 (blogged here by Andrew Scott), Arden LJ waxed lyrically dismissive of a cartel victim’s argument that it formed part of a class of persons against whom the cartelists intended to injure: ‘When everybody is somebody, then nobody is anybody’, to quote, as she did, Gilbert & Sullivan. Now in Air Cargo the Court of Appeal has endorsed Arden LJ’s approach and affirmed the binding nature of the Newson decision. Because the immediate victims of a cartel, or those next in the supply chain, may be able to pass on their losses to others further down the chain, the cartelists cannot be said to be seeking to gain at their expense. And while the loss must ultimately be borne by someone, to expand the class of victims ‘to anyone in the chain down to the ultimate consumers’ would open up ‘an unknown and unknowable range of potential claimants’. See the Court of Appeal’s judgment at [169]. The Court on this basis (reversing a judgment of Peter Smith J discussed in a previous blog of mine) struck out the Air Cargo claimants’ economic tort claims.

This is significant. Tort claims at common law might allow cartel victims to recover damages in respect of losses which EU/EEA law claim provides no remedy, for example where particular anti-competitive behaviour falls outside the territorial scope of EU/EEA law (see the Court’s judgment at [120]).  But the Court of Appeal at [174] made no secret of their pleasure, as a matter of policy, not to let the common law expand the scope of the remedies available to cartel victims under the law of the EU/EEA.

How then will claimants seek to recover such losses? There may be other routes to (some) recovery, such as the Air Cargo claimants’ “umbrella effect” argument, or claims based upon the competition law of foreign states which can be advanced in this jurisdiction (mentioned in the Court’s judgment at [157] and [120]). But the question of intention to injure in cartel claims must now be ripe for consideration by the Supreme Court. In particular, as Andrew Scott has remarked of Newson, pass-on appears to be attributed an unusual significance in this context. The captain of the Othello could not know whether the owners of the Tarleton would pass on their losses to others further down the chain, but he was liable nonetheless.

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What’s the plot? Conspiracy and 19th Century comic opera (again)

Ever since Johnson v Moreton [1980] AC 37 (61E-G per Lord Hailsham: ‘we should have to adopt the carefree attitude of the Mikado…’), references to Gilbert and Sullivan have been gaining ground in the judgments of our higher Courts. When last year Arden LJ rejected the argument, advanced by the claimant victim of a cartel, that it suffices to establish the intention requirement for the tort of unlawful means conspiracy that the claimant forms part of a class of persons against whom a cartelist’s wrongful acts were targeted, she did so by reference to The Gondoliers:

‘it deprives the requirement of intent to injure of any substantial content. It is tantamount to saying it is sufficient that the conspirators must have intended to injure anyone who might suffer loss from their agreement. If I might say so, the submission is reminiscent of the circularity of words in the Gondoliers that “when everyone is somebody, then nobody is anybody”’.

(See W.H. Newson [2013] EWCA Civ 1377 at [41], blogged here by Andrew Scott). Continue reading

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Dogma in telecoms, cream for the CAT: 08- numbers in the Supreme Court

The Supreme Court yesterday handed down judgment in British Telecommunications plc v Telefónica O2 UK Ltd & Ors [2014] UKSC 42. Reversing the decision of the Court of Appeal (blogged on here by Emily Neill), Lord Sumption for a unanimous Supreme Court held that there had been no basis for Ofcom to disallow BT’s introduction of “ladder pricing” in wholesale termination charges for certain non-geographic telephone numbers (specifically 080, 0845 and 0870, whence the litigation’s popular name among telecoms lawyers: “08- numbers”). Continue reading

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Murphy and pay-TV: an update

A version of the blog post below was first published on the Blackstone Chambers sports law blog: http://sportslawbulletin.org/.

Back in November I blogged on a Financial Times report that the European Commission was about to commence an antitrust investigation into pay-TV services.  That investigation was formally announced last Monday, in a statement by Joaquín Almunia, Commission VP for Competition Policy. Continue reading

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Murphy, round 2: does exclusive territorial licensing of pay-TV breach EU competition law?

According to a report in the Financial Times last weekend, the European Commission is on the verge of commencing a formal investigation into potentially anti-competitive restrictions in pay-TV licensing arrangements.  Such an investigation could have significant ramifications for any owners of television rights in sports fixtures (or other content) who seek to maximise their revenues by licensing on an exclusive territorial basis.

The last time similar issues came before the Court of Justice, a rights owner rather than the Commission was on the offensive.  In Joined Cases C-403/08 and C-429/08, Football Association Premier League Ltd v QC Leisure, Murphy v Media Protection Services Ltd [2012] 1 CMLR 29, FAPL was attempting to use criminal and civil law provisions of the Copyright, Designs and Patents Act 1988 to enforce its model of exclusive territorial licensing of satellite TV rights for the Premier League.  Mrs Murphy, a publican who had used an illicitly obtained satellite decoder card to show Greek satellite broadcasts of Premier League matches in her Portsmouth pub, famously persuaded the Court of Justice that national legislation prohibiting the import, sale and use of satellite decoder cards from elsewhere in the EU contravenes the free movement rules in the EU Treaties, and that restrictions such as those in the licence agreements between FAPL and its satellite broadcasters, obliging the licensee not to provide decoding devices outside its territory, contravene Article 101 TFEU.  Her appeal against conviction (for the offence of fraudulently receiving a programme included in a broadcasting service) was successful.  Yet FAPL snatched victory from the jaws of this defeat, establishing in the QC Leisure litigation that activities such as Mrs Murphy’s are actionable as copyright infringement. Continue reading

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Curtains for the French Blocking Statute?

Never the most celebrated actor on the stage of English litigation, the French Blocking Statute nonetheless has its fans, particularly among competition lawyers.  The recent decision of the Court of Appeal in Secretary of State for Health v Servier Laboratories [2013] EWCA Civ 1234, however, may prove the Statute’s final curtain call in this jurisdiction.

Law No. 68-678 of the French Republic, to give the Statute its proper name, was originally enacted in response to a United States antitrust investigation into French shipping companies.  Continue reading

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Update – more cats in bags

Further to my post this morning, the CAT’s website has just been updated with a new judgment on confidentiality, Ryanair Holdings plc v Competition Commission [2013] CAT 25.  The Tribunal has ruled, in the context of a challenge to the CC’s decision requiring Ryanair to divest itself of the large part of its minority stake in Aer Lingus, that not even Ryanair’s lawyers are entitled to see a fully unredacted copy of the decision.  It would appear from the judgment that the case is likely to give rise to further arguments about procedural fairness and confidentiality: certainly one to watch.

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Cats, bags, rings and rooms: the problem of confidentiality

Dealing with confidential information in competition cases can be tricky.  The CAT’s recent judgment in BMI Healthcare and others v Competition Commission [2013] CAT 241 provides some help.

The core problem of confidentiality in the context of competition law is that many of the arguments deployed by litigants and regulators rely upon information which is highly commercially sensitive.  Revealing one party’s business secrets to another – letting the cat out of the bag2 – not only risks aggravation to the cat’s owner but has the potential for serious economic harm. Continue reading

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Conspiracy in the CAT: the scope of section 47A

What kinds of “follow-on” claims may be brought in the CAT?  ‘[A]ny claim for damages, or any other claim for a sum of money which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom’, according to section 47A(1) of the Competition Act.  A ‘relevant prohibition’ for this purpose is of course defined as any of the Chapter I and II prohibitions or the prohibitions in Articles 101 and 102 of the Treaty.

The most obvious section 47A claim is a claim in tort for breach of statutory duty.  But what other causes of action fall within the scope of the section?

That question has been considered judicially for the first time in W. H. Newson Holding Ltd & ors. v IMI plc & ors. [2012] EWHC 3680 (Ch), a case arising out of the copper plumbing tubes cartel. Continue reading

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Down the rabbit-hole: costs, the Comms Act and the Competition Commission

‘“But I don’t want to go among mad people,” Alice remarked.

“Oh, you can’t help that,” said the Cat:  “we’re all mad here”.’

Where an appeal to the Tribunal under section 192 of the Communications Act 2003 gives rise to specified ‘price control matters’, the CAT must hive them off for determination by the Competition Commission: see section 193(1) and SI 2004/2068.  The CAT is then bound by section 193(6) to follow the Commission’s determination, except ‘to the extent that the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the Competition Commission is a determination that would fall to be set aside on such an application’: section 193(7).

This “quasi-judicial review within an appeal” jurisdiction under section 193(7) is tribute in itself to the complexity of the legal imagination.  In British Telecommunications Plc v Office of Communications [2012] CAT 30 the Tribunal takes us deeper still into wonderland with this question: can the Competition Commission, when it participates in a section 193(7) review before the Tribunal, recover its costs of so doing? Continue reading

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Special pleading? Toshiba Carrier and the industrial tubes cartel

The Court of Appeal’s judgment last Friday in KME Yorkshire Ltd & ors v Toshiba Carrier UK Ltd & ors [2012] EWCA Civ 1990 will gladden the hearts of Article 101 damages claimants.  It confirms that the Court will be generous in assessing the adequacy of a claimant’s pleaded case – at least where a Commission decision has already established the existence of a cartel.

By a Decision dated 16 December 2003, the Commission found that three manufacturers of industrial copper tubes had between 1988 and 2001 operated a price-fixing and market-sharing cartel under cover of a trade association. Continue reading

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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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