Tag Archives: competition appeal tribunal

Pay TV: Court of Appeal sends message to the CAT

In its recent decision in British Sky Broadcasting Ltd v Office of Communications [2014] EWCA Civ 133 the Court of Appeal has sent a strong message to the CAT, criticising the Tribunal for its failure to properly consider the reasons underpinning Ofcom’s original decision to impose licence conditions on British Sky Broadcasting Ltd (“Sky”). Continue reading

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The Court of Appeal on Cartels and Conflicts

The Court of Appeal handed down two important decisions last week on the application of conflict of law principles to cartel follow-on damages claims: Deutsche Bahn AG & Ors v Morgan Advanced Materials plc & Ors [2013] EWCA Civ 1484 and Ryanair Limited v Esso Italiana Srl [2013] EWCA Civ 1450. The defendants in each case challenged the jurisdiction of the English courts to hear damages claims arising from their cartel activities. Continue reading

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Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)

In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act 1998 and the tort of common law conspiracy.

The Court upheld Roth J’s decision (on which see Tom Richards’ blog) that it is in principle possible to advance in the CAT a follow on claim based on common law conspiracy. However, it held that because the claim followed on from a Commission Decision which did not contain a specific finding that the Defendant intended to injure the Claimant, the cause of action could not be made out without inviting the CAT to make additional findings – an invitation which the CAT was bound to decline in the light of Enron 1 and Enron 2. Continue reading

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Filed under Agreements, Damages, Policy

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

The Competition Commission’s power to block transactions outside the UK

The judgment in Akzo Nobel NV v Competition Commission [2013] CAT 13 is an important decision on the ability of the Competition Commission (“CC”) to block transactions between companies outside of the UK. However, neither party to the appeal will be entirely happy with the Competition Appeal Tribunal’s (“CAT”) legal analysis. There must therefore be a chance that – in a future case even if not in this one – the decision will be subject to attacks from both directions. Continue reading

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UK government proposes “streamlining” regulatory and competition appeals

The UK government on Wednesday published a consultation on streamlining regulatory and competition appeals. The press spin was that the proposals are all about preventing “armies of lawyers” from blocking consumer-friendly measures. In reality, although it is true that the proposals are designed in part to put a lid on litigation, the consultation contains a series of thoughtful suggestions – many of which are likely to attract widespread support.

Take, for example, the suggestion that there should be greater consistency in the available appeal routes. Someone at the Department for Business, Innovation and Skills has had fun mapping out the existing appeal routes for different decisions in the regulated sectors. The resulting table speaks for itself (figure 3.5 of the consultation):

Regulatory decisions

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Filed under Abuse, Agreements, Mergers, Policy, Procedure, Telecoms

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