Author Archives: Tom Richards

About Tom Richards

Barrister at Blackstone Chambers.

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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Filed under Procedure

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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Filed under Agreements, Damages, Procedure

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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Filed under Procedure, Telecoms

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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Filed under Agreements, Damages, Procedure

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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Filed under Abuse, Damages