Tag Archives: follow-on

Non-Appealing Cartelists Beware

Tucked away at the back of last week’s Supreme Court decision on time-limits for follow-on claims is a very important development for private competition actions.

The context is section 47A of the Competition Act 1998, a provision which has generated an extraordinary amount of litigation in view of the fact that it was intended to streamline private damages actions. 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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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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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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Another reason to avoid the CAT – Emerson in the Court of Appeal

The famous Victorian cricketer WG Grace is reputed once to have offered the following advice:

“When you win the toss – bat. If you are in doubt, think about it, then bat. If you have very big doubts, consult a colleague – then bat.”

The recent Emerson decision [2012] EWCA Civ 1559 is another illustration that bringing a follow on claim in the CAT rather than in the High Court is the law’s equivalent of choosing to bowl.

Emerson was yet another interlocutory skirmish arising from the CAT’s notoriously troublesome follow on jurisdiction under section 47A of the Competition Act 1998.  Continue reading

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BCL No.2: The Supreme Court addresses time limits in follow-on claims

The White Paper which first proposed follow-on damages claims promised a “swift” and “streamlined” procedure. The idea was that when a regulator had made an infringement finding, there would be a simple way for victims to claim damages without having to prove the infringement afresh.

In reality, however, many follow-on actions have been bogged down by procedural skirmishes. The Court of Appeal has ruled on the need for the facts alleged in a follow-on claim to be part of the infringement actually found. It has ruled on the extent to which findings of fact in an infringement decision are binding in the follow-on action.

And it has on three occasions turned its attention to the time limits for bringing follow-on claims in the Competition Appeal Tribunal. Continue reading

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