On 1 April 2014, pursuant to the Enterprise and Regulatory Reform Act 2013, the Competition and Markets Authority (CMA) was created as a new UK-wide competition authority. The CMA took over many of the functions of the Office of Fair Trading (OFT) and the Competition Commission. It is the primary competition authority in England and Wales and, together with various sectorial regulators (in sectors such as rail, energy and communications), they have powers to enforce domestic competition law. They also have powers to enforce European competition law along with the European Commission (Commission). For example, the CMA has powers to investigate individual undertakings or groups of undertakings to determine whether they may be in breach of the UK or EU prohibitions against anticompetitive agreements and abuses of a dominant position.
The CMA also has responsibility for, among other things, merger clearance, investigating markets and conducting market studies into markets where competition infringements are suspected, bringing criminal proceedings against individuals who commit the cartel offence and powers to enforce a range of consumer protection legislation.
The CMA has wide powers to investigate suspected breaches of competition law (as do the sectorial regulators and, in relation to European competition law, the Commission). The CMA can also exercise investigatory powers on behalf of the Commission or other national competition authorities of EU member states.
The CMA has the power to investigate whether a criminal offence has been committed under section 188 of the Enterprise Act 2002 and, together with the Serious Fraud Office, it has the power to prosecute any criminal offences.
Article 16 of Regulation (EC) 1/2003 prevents a court in a member state from taking any decision that runs contrary to that of the Commission. This reflects the judgment of the European Court of Justice in Masterfoods Ltd v HB Ice Cream Ltd Case C-344/98  ECR I-11369, which also requires the same approach in respect of appeals to the European courts. It is generally accepted by the English courts that it is prevented from giving judgment in competition cases pending the outcome of any related investigation by the Commission and the outcome of any appeals from decisions following investigations. The contentious issue in private damages claims has been how far preparation for trial should proceed pending the outcome of an investigation and appeals.
In a series of cases the English courts have favoured allowing damages actions to proceed where possible, at least as far as the defendant filing a defence, requiring some disclosure of documents and even as far as service of witness statements and expert reports (see National Grid v ABB and Others  EWHC 1326). This has not been the outcome in every case. In Morgan Stanley Dean Witter Bank Ltd and Anor v Visa International Services Association (2 May 2001), a full and immediate stay of the proceedings was ordered. More recently in Secretary of State for Health v Servier Laboratories  EWHC 2451, the High Court granted a temporary stay to allow the defendant to focus on the parallel Commission investigation. However, the approach in National Grid v ABB and Others, has been followed in most cases including WM Morrison Supermarkets Plc and Others v MasterCard Incorporated and Others  EWHC 1071 (Comm) and  EWHC 3082 (Comm) where the Court has twice decided that there should be no immediate stay of the proceedings, and Infederation Ltd v Google Inc & Ors  EWHC 2295 (Ch), where the Court decided against an immediate stay of the action prior to disclosure, opting for close judicial case management going forward and targeted disclosure by reference to specific issues.
In relation to CMA (previously OFT) decisions, the High Court has a discretion to stay its proceedings pending the outcome of an investigation or appeal and has held that similar considerations apply as under European law (see Synstar Computer Services v ICL  CP Rep 98).
To date, the issue has not arisen in claims made in the Competition Appeal Tribunal (CAT) but as it will be bound by the EU law requirements not to take decisions running contrary to Commission decisions it can be expected to adopt a similar approach to that of the High Court. In addition, in respect of claims that arose prior to 1 October 2015, a transitional provision (Rule 119 of the Competition Appeal Tribunal Rules 2015) applies certain old rules to the claim and these require a claimant wishing to bring a follow-on claim relying on a existing competition authority decision, to obtain permission from the CAT to bring a claim before the end of any appeals of the relevant decision.
Criminal proceedings in respect of antitrust matters are much less common than civil damages actions. Criminal proceedings can only be brought against individuals under section 188 of the Enterprise Act 2002, and private antitrust claims are almost exclusively brought against undertakings. A direct overlap between criminal and civil proceedings is, therefore, unlikely. The court has discretion to stay civil proceedings running in parallel with a criminal prosecution, and will exercise this if the defendant would suffer serious prejudice. Typically, preparations for trial of the civil case will be required to proceed, but the civil trial will not be held until after the criminal trial.
The High Court and the CAT as part of their general case management powers, can stay proceedings as they see fit. The application for a stay is usually made during the early stages of the proceedings, ordinarily before any disclosure is provided.
Where claims are brought following a competition authority decision the claimant can rely on the decision as proof of a breach of competition law. This only applies to decisions of the UK’s competition authorities (ie, the CMA and the concurrent regulators) or those made by the European Commission (see details below).
Directive 2014/104/EU on antitrust damages actions (the Damages Directive) was implemented into UK law on 9 March 2017 by the Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017. Following implementation of the Damages Directive, for claims brought on or after 9 March 2017, final decisions made by competition authorities in other EU member states finding an infringement of EU competition law will constitute prima facie evidence of a breach of competition law rather than being directly binding on UK courts.
European Commission decisions are binding on the addressee of that decision (articles 288 and 297 of the Treaty on the Functioning of the European Union (TFEU)). However, for these purposes it is only the operative part of the decision that is directly binding, which is normally limited to the finding of infringement itself. The individual findings of fact in the preceding recitals are not directly binding, however, an addressee may not be permitted to challenge those findings that form the basis of the infringement finding, as that could be regarded as an abuse of process because it would involve re-litigating those issues (see Iberian UK v BPB Industries  2 CMLR 601). Commission decisions are not directly binding on those that are not addressees (see Wegenbouwmaatschappij J Heijmans v Commission  ECR II-110 and Emerson v Morgan Crucible  CAT 4). Commission decisions relating to different facts or parties are not binding, but are admissible evidence and likely to be highly persuasive given their origins (see Crehan v Inntrepreneur  UKHL 38).
The English Court and the CAT are also bound by infringement decisions of the Commission and the CMA (for decisions made after 1 October 2015 this is expressly provided for by section 58A of the Competition Act 1998. The High Court and the CAT are also bound by decisions of the General Court and the Court of Justice of the European Union (CJEU) on matters of community law.
Decisions of competition authorities of non-EU countries are not binding and there may even be doubt as to their admissibility in subsequent private antitrust claims in England.
In relation to claims where the infringement of EU or UK competition law started before 9 March 2017, leniency applicants are protected only from fines imposed by the relevant competition authority. Some limitations are imposed on these cases in relation to the disclosure of documents created for the purposes of a leniency application (see questions 7 and 8).
On 9 March 2017 the UK implemented article 11 of the Damages Directive which changed the position for leniency applicants by limiting the effect of joint and several liability for those who have received immunity under a leniency programme. This limitation of liability applies only to claims where an infringement of EU or UK competition law started on or after 9 March 2017. When it applies, an immunity recipient will not be liable (either alone or jointly) to pay damages in respect of loss or damage suffered by a person as a result of the cartel infringement (whatever the legal basis of the liability) except when the person was a direct or indirect customer (or provider in the case of a supplier cartel) of the immunity recipient or where full compensation for the loss or damage cannot be recovered from the other undertakings involved in the cartel infringement. As a result, in most circumstances an immunity recipient’s joint and several liability with other infringers extends only to its direct and indirect purchasers and providers.
In addition, in relation to claims where the infringement of EU or UK competition law started on or after 9 March 2017, the extent of contribution claims against an immunity recipient by other infringers is limited so that it will not exceed the amount of harm caused to its own direct or indirect purchasers or, in the case of a buying cartel, its direct or indirect providers.
Although current case law (for claims brought before 9 March 2017) provides protection for leniency documents (see questions 7 and 8), the UK’s implementation of the Damages Directive provides statutory protection for leniency documents in relation to claims for infringement of EU or UK competition law brought on or after 9 March 2017, ensuring that neither the English Court nor the CAT will make a disclosure order in respect of a cartel leniency statement.
Access to the European Commission’s file Before bringing proceedings a potential claimant or any member of the public may seek access to the Commission’s file through Regulation (EC) 1049/2001. There are certain restrictions on disclosure, for example, to prevent the undermining of commercial interests and to protect investigations. The Commission is reluctant to provide access to its investigation file and, in particular, leniency material and so, to date, this has not proved an effective means of accessing this information. In EnBW Case C-365/12 P the Commission’s approach was supported by the CJEU, which ruled that the Commission is entitled to presume that disclosure of documents on the Commission’s file will undermine the protection of the commercial interests of those involved and the protection afforded to the investigations. However, this is a rebuttable presumption; a member of the public requesting the document need only demonstrate that there is an overriding public interest in disclosure of the document or the specific document that has been requested is not covered by the presumption to succeed. The fact that a claimant wants to use such a document from the Commission’s file to bring a private damages action does not in itself rebut the general presumption.
Within proceedings that were commenced before the implementation of the Damages Directive on 9 March 2017, it may be possible to seek disclosure from a defendant who has copies of documents from the Commission’s files as a result of access to file during the investigation. Access to its investigation file is provided by the Commission on strict terms and for a limited purpose so parties may not feel free to disclose this material freely. The High Court has ordered disclosure in most cases (eg, National Grid v ABB and Others  EWHC 1326) on confidential terms. In relation to disclosure of leniency documents in particular see question 8.
In May 2014, the Commission published an opinion it provided to the High Court in WM Morrison Supermarkets plc and Others v MasterCard Incorporated and Others, which addresses disclosure of the Commission file and Commission decisions in damages actions. In that opinion the Commission confirmed, among other things, that national courts need to assess the situation on a case-by-case basis whether there are overriding reasons for refusing the disclosure of documents on the Commission’s file that have been provided voluntarily (see also question 8 in relation to Pfleiderer v Bundeskartellamt [Case C-360/09]). The Commission confirmed that in that case it has no objection to the disclosure of confidential versions of Commission decisions provided that adequate protection is given to business secrets and other confidential information, for example, through a suitably redacted version of the decision being disclosed into a confidentiality ring. Any disclosure given should be protected to the levels required by article 339 of the TFEU, article 28 of Regulation 1/2003, and article 15(4) of Regulation 773/2004.
However, the disclosure and admissibility of documents relating to the Commission’s investigation in damages actions has changed following the implementation of the Damages Directive on 9 March 2017. For all proceedings brought on or after 9 March 2017 new rules apply in respect of both the Commission and for UK and other member states’ competition authorities. Under those new rules:
There is some ambiguity as to what documents will fall in to which categories and it will remain to be seen how the High Court and the CAT will interpret the categories and when a competition authority’s proceedings are closed. There appear to be no change to the admissibility or the right to disclose a parties’ own pre-existing documents on the Commission’s file.
In relation to the confidential versions of Commission decisions, the Commission has confirmed that it has no objection to these decisions being disclosed, provided that adequate protection is given to business secrets and other confidential information, for example, through a suitably redacted version of the decision being disclosed into a confidentiality ring. Any disclosure given should be protected to the levels required by article 339 of the TFEU, article 28 of Regulation 1/2003, and article 15(4) of Regulation 773/2004.
In addition to leniency material, there is a further category of material in competition authority decisions which may require protection from disclosure. In Emerald Supplies v British Airways and others  EWCA Civ 1024 the Court of Appeal ruled on the question of whether the court could order the disclosure of the full, unredacted version of the Commission’s Airfreight decision, albeit within the confines of a confidentiality ring. A number of airlines relied on the judgment of the General Court of the European Union in the case of Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse GmbH v Commission  ECR II-4225 (Pergan), which concerned the publication of findings of, or allusions to, liability which could not be challenged before the EU Courts, and the incompatibility of that publication with the presumption of innocence which is enshrined in European law. The Court of Appeal held that the protection provided by Pergan is absolute, meaning that the national court must afford the same protection which is afforded to the document at EU level.
In cases brought on or after 9 March 2017 the court or the CAT is expressly prohibited from ordering a competition authority to disclose documents or information included in a competition authority’s file unless those documents cannot reasonably be provided by anyone else. However, it is possible for a party to ask the High Court to seek documents directly from the Commission under article 15 of Regulation (EC) 1/2003. This approach is subject to certain limitations, including protection of confidential information and leniency documents. In the one case in which a formal request under article 15 was made, National Grid v ABB and Others  EWHC 1326, the Commission decided to provide the documents (with leniency material redacted), but the transmission of the documents was prevented by an interim order granted by the General Court (see Case T-164/12 R, Alstom v Commission, Order of the President of the General Court, 29 November 2012).
CMA’s (or OFT’s) file Information obtained by the CMA (or OFT before it) as part of its functions is subject to strict protection (see Part 9 Enterprise Act 2002), breach of which can amount to a criminal offence. The prohibition on disclosure is subject to certain disclosure gateways, including: disclosure with consent, to allow an authority to fulfil its functions, and for the purposes of a criminal investigation. One further gateway allows the CMA to give disclosure for the purpose of civil litigation, although this excludes certain information including information obtained through Competition Act or Enterprise Act investigations (Competition Act 1980, Competition Act 1998 and Enterprise Act 2002).
Third parties that receive information during a CMA investigation (or in an OFT investigation) may not disclose it without the consent of the CMA. The OFT’s policy was to firmly resist disclosure of leniency material and it is expected that the CMA will adopt the same position.
In relation to claims commencing after the implementation of the Damages Directive on 9 March 2017, the limitations on the admissibility and disclosability of documents relating to competition authority investigations described above also apply to CMA investigations.
For claims brought before implementation of the Damages Directive on 9 March 2017 the position under EU law is governed by Pfleiderer v Bundeskartellamt (Case C-360/09). In Pfleiderer the Court of Justice held that it was necessary for courts in member states in each case to weigh the interests in favour of disclosure against those against. The English High Court was the first member state court to apply these principles to disclosure of Commission leniency material in an antitrust damages claim in National Grid v ABB and Others ( EWHC 1326). In that case, although some limited leniency material was disclosed (including some elements of the confidential version of the Commission’s decision) much of the material was not required to be disclosed. However, the English Court has not been consistent in its approach in relation to leniency materials when applying Pfleiderer. In the National Grid claim the judge looked at each of the contested documents and carried out his “balancing exercise” on a document-by-document basis. However, in other cases judges have made decisions in relation to categories of documents, such as in WH Newson & Others v IMI and Others.
In relation to the CMA’s own leniency programme (and the OFT’s before it), third parties who receive information from the CMA (and the OFT before it) during an investigation may not disclose it without the CMA’s consent. The OFT’s stated policy was to resist disclosure of leniency information and the CMA is expected to adopt the same stance.
As stated above, the current case law for proceedings brought before 9 March 2017 provides qualified protection for leniency documents submitted to the Commission and UK or other member state national competition authority. As discussed in more detail in question 7, the UK’s implementation of article 6(6) of the Damages Directive imposes an absolute prohibition on orders requiring the disclosure of leniency corporate statements. Therefore, for proceedings brought on or after 9 March 2017 leniency statements may not be ordered to be disclosed and are not admissible in evidence in competition proceedings (unless not obtained from a competition authority file).
The position in relation to cartel settlement documents requested in proceedings brought before 9 March 2017 is currently untested in the English courts, but similar considerations are likely to apply to settlement submissions that apply to documents created for leniency applications.
However, for proceedings brought on or after 9 March 2017 following the implementation of the Damages Directive, settlement submissions made to the Commission or any UK or other member state national competition authority are protected from disclosure (article 6(6) of the Damages Directive) (see also question 7). National courts may order the disclosure of settlement submissions that have been withdrawn but only after a competition authority, by adopting a decision or otherwise, has closed its proceedings.
The fact that a document contains information that is confidential and commercially sensitive is no bar to its disclosure. The courts do recognise, however, that in competition cases in particular, disclosure of such information causes difficulties. The court will take a flexible approach and it will be necessary to justify the limits on disclosure sought. In practice, this is dealt with by the court putting in place “confidentiality rings” whereby documents containing confidential information must be disclosed but may be reviewed by only a limited number of identified individuals, who are each personally subject to an obligation of confidence owed to the court. Often in practice this may mean that confidential information is disclosed to only external lawyers and experts. Such confidentiality rings have been used in, inter alia, cases where disclosure of material from competition authorities’ files has been required.
Private damages actions arising out of inringements of EU and UK competition law are usually brought as claims for breach of statutory duty. The relevant statutes are the European Communities Act 1972, which enshrines into English law the requirements of articles 101 and 102 TFEU and, in relation to domestic competition law, the Competition Act 1998. Other causes of action could be used if the requirements are met, for example, breach of contract.
There has recently been a number of attempts by claimants to rely on such causes of action in addition to claims for breach of statutory duty (see the Emerald Supplies & other v British Airways plc claim where the claimants have argued the torts of unlawful means conspiracy and the interference of the claimants’ business by unlawful means. However, in order make out a claim for unlawful means conspiracy it is necessary to demonstrate that the defendant intended to cause damage to the claimant. In Emerald Supplies the Court of Appeal held that the necessary intention to injure is not made out merely because the increased prices resulting from a cartel must be at the expense of customers. It held that “an intention to injure an identifiable class is not sufficient to establish an intention to injure its constituent members” and that it did not follow from the imposition of higher prices that the claimant, in that case a direct customer, would be harmed because it may pass on any overcharge. In Emerald Supplies the Court of Appeal struck out the claimants’ conspiracy claim.
The High Court has recently ruled on the territorial application of article 101 TFEU in a competition damages claims (see iiyama Benelux BV v Schott AG  EWHC 1207 (Ch) (iiyama). In iiyama the High Court struck out a claim for damages arising from an alleged overcharge on goods sold outside the EEA (even though the goods were transformed on other products sold in the EU) as the sales outside the EU could not amount to implementation of the cartel in the EEA and so they were not a breach of EU competition law.
The principle monetary relief sought is compensatory damages. Damages are calculated by reference to normal tortious principles so that the damages will put the victim in the same position as if the breach of competition law had not taken place.
Other theories of monetary relief, such as claims for restitution or an account of profits, have been rejected by the English courts (see Devenish Nutrition Ltd v Sanofi-Aventis SA  EWCA Civ 1086). Exemplary damages, which are not compensatory but are intended to punish and deter certain conduct, may be claimed in limited circumstances and following implementation of the Damages Directive only where the infringement of EU or UK competition law came to an end before 9 March 2017. One of those circumstances is when the defendant has deliberately or recklessly infringed the victim’s rights, calculating that the damages that he or she might have to pay are outweighed by the gain he or she would make (see Rookes v Barnard  A.C. 1129). In Devenish Nutrition the court ruled that exemplary damages would not be available in circumstances where the defendant had already been fined by a competition authority for its conduct or if it was a successful leniency applicant.
In practice, it will be rare for a defendant who has infringed competition law but has avoided a fine (other than under a leniency programme) to satisfy the Rookes v Barnard criteria and, therefore, awards of exemplary damages are likely to remain rare.
The CAT has made one award of exemplary damages in 2 Travel v Cardiff City Transport Services  CAT 19, where the defendant was found by the OFT to have engaged in abusive conduct but had not been fined because of exemptions for small businesses. The CAT awarded £60,000 exemplary damages and gave useful guidance as to the circumstances in which it would be appropriate to award exemplary damages. Further guidance was given in Albion Water Ltd v Dwr Cymru Cyfyngedig  CAT 6, in which the CAT declined to award exemplary damages. Exemplary damages will not be available in collective proceedings before the CAT.
Following the implementation of the Damages Directive, for claims where the infringement of EU or UK competition law started on or after 9 March 2017, neither the English court nor the CAT can award exemplary damages in competition proceedings.
It is also possible to claim interest, including if specific loss can be established, compound interest (see, for example, Sainsbury’s Supermarkets v Mastercard Incorporated and others  CAT 11).
The full range of remedies available to the High Court are available in competition claims. In practice, in addition to interim relief discussed in question 24, the most common non-monetary final remedies sought will be final injunctions and declarations.
A declaration as to the rights and obligations of the parties may be sought in addition to damages or an injunction. It is a discretionary remedy and will only be available if it will serve some purpose. The court may make negative declarations. An example of a declaration that might be sought is that a contract is void because it infringes competition law.
Injunctions are most commonly sought as an interim remedy, but they can also be a final remedy. Injunctions can be mandatory, requiring a defendant to take a step, or prohibitary, requiring the defendant not to take certain steps, for example, to desist from conduct found to have infringed competition law. Injunctions are a discretionary remedy.
The CAT now has the same powers as the High Court to grant injunctive relief (eg, requiring infringing behaviour to cease), including interim injunctions that will have the same effect, and can be enforced, as if it is an injunction granted by the High Court.
The European Court of Justice made clear in Manfredi v Lloyd Adriatico (C-295/04) that claims for compensation arising for infringement of EU competition law were available to any victim of the infringement that has suffered loss. Damages claims should be available to all victims of EU and UK competition law, including direct and indirect purchasers of the goods or services affected by the infringement. The first award of damages to an indirect claimant in the UK was in Sainsbury’s Supermarkets v Mastercard Incorporated and others  CAT 11. While such claimants may face practical difficulties in proving their loss, it is generally accepted that they have standing to sue.
Following the implementation of article 14 of the Damages Directive, proof of loss has become easier; for proceedings where the infringement of EU or UK competition law started on or after 9 March 2017, as there is a presumption that a cartel causes loss or damage and the indirect purchaser is deemed to have proven that a passing-on to that indirect purchaser occurred where that indirect purchaser has shown that:
The High Court and the Competition Appeal Tribunal both have unlimited jurisdiction to hear private antitrust claims. In addition, the CAT can hear collective or class actions (see question 48).
Two EU regulations apply to determine jurisdiction in respect of claims against defendants domiciled in EU member states: Regulation (EC) 44/2001 (Brussels Regulation), which applies for judgments given in proceedings instituted before 10 January 2015 and Regulation (EU) 1215/2012, which applies to proceedings instituted on or after 10 January 2015 (Recast Brussels Regulation). The Recast Brussels Regulation repealed the Brussels Regulation, except for judgments and proceedings instituted before 10 January 2015 (article 66 Recast Brussels Regulation), however, the majority of the substantive provisions of the Brussels Regulation are carried through into the Recast Brussels Regulation. Under both of these regulations, the general rule is that a defendant should be sued in the jurisdiction of its domicile. However, there are certain important exceptions to this rule, the most important of which relevant to antitrust damages claims are as follows.
If a claimant has claims against entities domiciled in more than one member state it can bring all the claims in the courts of any member state in which one of the defendants is domiciled provided that those claims are so closely connected that it is expedient to hear them together to avoid the risk of irreconcilable judgments from separate proceedings (article 6(1) Brussels Regulation or article 8(1) Recast Brussels Regulation).
In relation to tortious claims, a defendant domiciled in a member state can be sued in the courts of another member state where the harmful event occurred or may occur (article 5(3) Brussels Regulation or article 7(3) Recast Brussels Regulation). This could be where the damage was sustained or where the event giving rise to the tort took place. If the former basis is relied on the claim will be limited to the damage suffered in that jurisdiction.
Article 25(1) of the Recast Brussels Regulation provides for the recognition and enforcement of jurisdiction agreements between parties (this applies regardless of the parties’ domicile, whereas the equivalent provision of the Brussels Regulation (article 23(1)) only applies if at least one party is domiciled in a member state). A claimant and defendant may have entered into a contract relevant to the claim that includes a jurisdiction clause.
Under article 24 of the Brussels Regulation or article 26 of the Recast Brussels Regulation, any defendant domiciled in any jurisdiction is deemed to have submitted to the jurisdiction of an EU member state if he or she enters an appearance in the courts of that member state, unless that appearance is only made for the purpose of contesting jurisdiction.
Pursuant to articles 27 and 28 of the Brussels Regulation or articles 29 and 30 of the Recast Brussels Regulation, where proceedings that involve the same cause of action between the same parties are brought in two member states, the court that is second seized must stay proceedings until it has been established as to whether the court first seized has jurisdiction. If the jurisdiction of the court that is first seized is established, any court second seized must decline jurisdiction. If the two sets of proceedings are related (but not the same cause of action between the same parties) so as to be so closely connected that it is expedient to hear the claims together to avoid the risk of conflicting judgments, the court second seized may stay proceedings but it is not obliged to do so.
The rules set down in the Recast Brussels Regulation have direct effect in the UK and in other EU member states (the only exception to this is Denmark, although it has subsequently confirmed that it will implement the Recast Brussels Regulation). The Lugano Convention applies very similar rules for defendants domiciled in Iceland, Norway or Switzerland.
The Court of Justice of the European Union’s (CJEU) judgment in Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (C-352/13) EU:C:2015:335 (ECJ) was the first time that the CJEU had to rule on the application of the Brussels Regulation to competition claims. The CJEU’s judgment confirmed that claimants could bring claims jointly against multiple defendants in one member state, where only one of the cartelists is domiciled (see article 6(1)). The CJEU confirmed that this extended to circumstances where the claimant has withdrawn proceedings against the sole defendant domiciled in that jurisdiction after proceedings had commenced. In addition, the CJEU held that cartel victims can, under article 5(3) of the Brussels Regulation, bring damages actions at the courts of the member state where the cartel was entered into – being the place of the harmful events, but only if it is possible to clearly identify that, which in a multinational cartel may often not be the case. Alternatively a damages action can be brought in the member state where the claimant is domiciled being the place where the relevant harm was suffered under article 5(3). This case related to the Brussels Regulation and not the Recast Brussels Regulation, however, as noted above, the substantive rules that this case concerns have been largely carried through into the Recast Brussels Regulation. The case also considered the validity of a jurisdiction clause under article 23(1). The judgment held that for a jurisdiction clause to apply in cartel damages cases, the contract will need to expressly refer to disputes relating to infringement of competition law, and a general reference will not be sufficient.
A national court or tribunal may seek a reference from the CJEU to answer any questions relating to the interpretation of the Recast Brussels Regulation.
For defendants domiciled outside a member state (or Iceland, Norway and Switzerland), claimants may be able to found jurisdiction in the English courts pursuant to common law rules. Aside from situations in which the parties have agreed to confer jurisdiction on the English courts, claimants can bring their claims in England if they validly serve process on the defendant, or if defendant enters an appearance before the English courts for purposes other than to challenge jurisdiction.
Process can be validly served either within or outside of the jurisdiction, as long as the necessary requirements are met. A claimant can found the jurisdiction by serving the defendant physically in England and Wales, for example, if the defendant has an office or branch within the jurisdiction. If the defendant is outside of the jurisdiction, the claimant must seek the permission of the English courts to serve outside the jurisdiction. The courts may grant permission if the claim has a reasonable prospect of success, England is the proper place to bring the claim, and the claim falls within a number of specific categories set out in the Practice Direction 6B.3.1 in the Civil Procedure Rules. Examples of the jurisdictional “gateways” set out in PD 6B.3.1 include circumstances where the remedy sought is an injunction ordering the defendant to do or refrain from doing something within the jurisdiction, in relation to tort claims, where damage was sustained within the jurisdiction or the damage resulted from an act committed within the jurisdiction or that the defendant is a necessary and proper party to a claim against another defendant. The English court may decline jurisdiction under the common law rules if it considers that another forum is more appropriate to hear the claim.
The English High Court has also recently stayed a claim for breach of EU competition law to arbitration holding that in that case the contractual arbitration clauses extended to the tortious claims for breach of competition law because of the links between the contractual relationship and the claim, see Microsoft Mobile OY (Ltd) v Sony Europe Ltd  EWHC 374 (Ch).
As between the parallel jurisdictions of the High Court and the CAT, this is a matter of choice for claimants, as they will both have largely similar jurisdictions, but only the CAT will be able to hear collective actions. It is also possible for cases to be transferred from the High Court to the CAT or vice versa.
Generally, claims may be brought based on foreign law and it is clear that claims can be brought based on breaches of European competition law. The position in relation to the competition law of other countries is unclear. The principle objection to allowing such claims is that they may amount to the enforcement of a foreign penal law or other public law, which is not permitted.
Any party contending that foreign law should apply must establish this. The test to determine if foreign law applies (and if so which) in respect of tort claims depends upon the period covered by the claim.
In relation to events giving rise to damage occurring after 11 January 2009, the applicable law will be determined by Regulation (EC) 864/2007. This regulation, known as Rome II, contains provisions specifically concerning claims in relation to restrictions of competition. Article 6(3) provides that the law applicable to such claims shall be the law of the country where the market is or is likely to be affected. If the market is likely to be affected in more than one country, a claimant suing in the court of a country in which a defendant is domiciled may choose to base its claim on the law of that court, provided that the market in that country is directly and substantively affected.
The Private International Law (Miscellaneous Provisions) Act 1995 applies to claims between 1 May 1996 and 10 January 2009. Under the Act, the applicable law will be the law of the country in which the tort occurred. Broadly speaking, where the tort occurred in more than one country, the law will be that of the country in which the most significant element or elements of the events, which constitute the tort, occurred.
In respect of acts before 1 May 1996, the position is governed by complex principles established under common law.
Proceedings are commenced in both the High Court and CAT by filing a claim form. A court fee is also payable on commencing proceedings in the High Court. The court fee will be 5 per cent of the value of the claim, capped at £10,000. In the High Court, the details on the form can be relatively general, but shortly thereafter must be expanded. In the CAT, full details of the claim must be provided in the claim form. Once issued, the claim form must be served on the other parties. Service can be effected on companies and individuals in England and Wales by a number of mechanisms including post, fax and e-mail. For parties outside England and Wales, permission to serve outside the jurisdiction will be required in some circumstances from the High Court and in all cases from the CAT.
Different limitation periods will apply to claims depending on when the claim arose and in some cases whether the claim is brought in the High Court or the CAT.
Summarised below is the position under English law, but foreign law limitation periods may apply if the claim is governed by foreign law (see Deutsche Bahn AG and others v MasterCard  CAT 14).
For claims where the infringement of EU or UK competition law came to end before 9 March 2017, when the Damages Directive was implemented, the position is as follows: Tort claims governed by English law, including those on which antitrust claims are based, are subject to a primary limitation period of six years running from the date on which the cause of action accrued (section 2 Limitation Act 1980). A cause of action will accrue only when some damage has been caused. However, where there is deliberate concealment of any fact relevant to the claimant’s cause of action, the six-year limitation period will begin to run from the date on which the claimant discovered, or could with reasonable diligence have discovered, the concealment (section 32 Limitation Act 1980). A deliberate breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment for these purposes. In practice, therefore, in many antitrust cases such as those arising from a secret cartel, the limitation period might only start to run from the date of the relevant infringement decision of the CMA or the Commission. However, if sufficient relevant information was in the public domain or otherwise known to the claimant before this date then the limitation may start to run earlier.
For all claims where the infringement started on or after 9 March 2017 the implementation of the Damages Directive did not alter the limitation period for claims brought before the High Court which remains six years, but there are different rules to determine when the period starts to run and the limitation period will be suspended in certain circumstances. The limitation period for such claims will only start to run on the latter of:
The limitation period is suspended during any competition authority investigation and during and subsequent appeals from a decision and for a period of one year thereafter, for consensual dispute resolution and for collective proceedings.
These changes will substantially extend the limitation periods in many cases because the majority of claims brought in the High Court are follow-on claims which “follow-on” from competition authority decisions.
Prior to 1 October 2015, the CAT had jurisdiction to hear only claims following on from a prior infringement decision of the Commission or a UK competition authority. The limitation period for such claims was two years running from the date when the relevant infringement decision on which the claim is based has become final, that is to say once time for appealing has expired or any appeals have been determined. For these purposes, appeals against only the level of a fine are not relevant (see BCL Old Co Ltd v BASF Plc  UKSC 45). Where there has been an infringement jointly by a number of undertakings, for example, a cartel, a judgment of the Supreme Court (Deutsche Bahn AG and others v Morgan Advanced Materials Plc (formerly Morgan Crucible Co Plc)  UKSC 24) decided that any appeal against the finding of infringement by any other addressee is irrelevant to the limitation period applicable to the non-appealing addressee.
On 1 October 2015 the new Competition Appeal Tribunal Rules 2015 (CAT Rules) came into force changing the limitation period for claims made in the CAT, but transitional provisions (see Rule 119) continued to apply the old two-year limitation period to claims that arose prior to 1 October 2015, but in relation to which proceedings had not yet commenced. For all other claims arising after 1 October 2015 the CAT’s limitation period was brought into line with the limitation periods then applying to claims in the High Court. The limitation period for claims in the CAT has also been amended by the implementation of the Damages Directive for claims where the infringement of EU or UK competition law started on or after 9 March 2017. For such claims the limitation period in the CAT is the same as in the High Court (see above).
Under English law limitation periods are procedural in nature and their expiry does not extinguish the right, but merely acts as a bar to proceedings if a limitation defence is raised.
See question 19.
Parties can agree standstill or tolling agreements in respect of English law limitation applicable to claims in the High Court and probably for claims in the CAT arising after 1 October 2015. For claims arising before 1 October 2015, it appears that standstill or tolling agreements cannot be agreed in respect of the time period for bringing damages claims in the CAT (see Emerson v Morgan Crucible  CAT 28). Certain insolvency events may suspend limitation periods.
For claims where the infringement of EU or UK competition law started on or after 9 March 2017, the implementation of the Damages Directive provides for the suspension of the limitation period during any competition authority investigation (and subsequent appeals), for consensual dispute resolution, and for collective proceedings (see question 19).
A claimant’s pleadings must set out reasonable grounds for a claim and must have a realistic prospect of success, otherwise the claim is liable to be struck out. In practice in antitrust damages claims, the court has been prepared to take a lenient approach to the level of detail the claimant provides. This is particularly so in claims arising from alleged cartels, where the court recognises that the claimant is likely to have limited information in relation to the operation of the cartel (see Toshiba Carrier v KME  EWCA Civ 1190).
Interim relief is available in the High Court and in the CAT. In general terms, interim relief will be available if the claimant’s case raises a serious issue to be tried and damages would not be an adequate remedy. Injunctions are discretionary remedies and the court will assess whether the balance of convenience favours granting an interim injunction or not, with a view to doing what is least likely to cause injustice if the decision later turns out to be wrong.
The first step a defendant must take is to acknowledge service of the proceedings. If it wishes to challenge the jurisdiction of the court it must indicate when it acknowledges service and make its application before taking any other step. If there is no challenge to jurisdiction, the defendant must serve a defence setting out its factual and legal defences. If the defendant has a counterclaim or a related claim against a third party (eg, a claim for contribution) this will usually be made at the same time as filing a defence (although they can be brought after service of the defence with the court’s permission).
A defendant may seek early summary determination of the claim by either applying to strike the claim out on the basis that it discloses no reasonable grounds or by seeking summary judgment on the grounds that the claim has no reasonable prospects of success. In practice, strike out and summary judgment applications are often combined. To date the High Court has shown great reluctance to strike out private antitrust damages claims or give summary judgment for the defendant prior to disclosure (see Toshiba Carrier v KME  EWCA Civ 1190). However, in a number of recent cases strikeout applications have been successful (see Bao Xiang International Garment Center and others v British Airways plc  EWHC 3071, British Airways v Emerald Supplies Limited & Others  EWCA Civ 1024, and iiyama Benelux BV v Schott AG  EWHC 1207 (Ch)).
Disclosure in English proceedings is, in practice, almost exclusively by means of disclosure of documents. Other forms of factual inquiry in advance of trial are possible, such as making formal requests for information and even in limited circumstances, depositions. The evidence of witnesses of fact are served in advance of trial in the form of witness statements, and expert witnesses must serve reports setting out their evidence. Set out below is a brief overview of the scope of documentary disclosure.
Parties to proceedings are generally required to provide wide ranging disclosure of documents after the close of pleadings but before the preparation and exchange of witness statements and expert reports. The exact scope of disclosure is a matter for the court in each case but the normal approach is to require the parties to carry out a reasonable search for and to disclose all documents that support their case or harm the other party’s case, and harm their own case or support the other party’s case. For these purposes documents include hard copy documents and all forms of electronic record. This is known as “standard disclosure”.
There are a range of other approaches available to the court, including disclosure on an issue-by-issue basis (this is common in cartel damages claims), disclosure of documents that could lead to a train of inquiry that may advance the other side’s case or each party disclosing the documents on which it relies and requesting specific disclosure from the other party. Parties may also apply for an order requiring disclosure of specific documents.
There are specific provisions setting out detailed guidance on the approach that parties should take to electronic disclosure (CPR Practice Direction 31B).
Orders for disclosure may be made against third parties who are not parties to the case and the court also has the power to order that disclosure be provided before proceedings have started if it would assist with the disposal of the case or reduce cost.
The CAT has wide powers in respect of disclosure, but broadly follows the approach adopted by the High Court.
The Damages Directive which was implemented in the UK on 9 March 2017 did not require changes to current disclosure practice in England, which is well-established, however, it did provide for the protection from disclosure of certain documents, including leniency documents and investigation materials from a competition authority’s file (see questions 7 and 8).
As to protection of confidential information, see question 10.
Although hearings, including trials, are generally conducted in public, if it is necessary to protect confidential information the court or CAT can sit in private with only those within the confidentiality ring attending. As there is a strong presumption for hearings to be held in public the court or CAT will need to be persuaded of a genuine need for confidentiality.
Parties are not required to give disclosure of privileged documents in civil proceedings in England and Wales. The law of privilege is complex but the main heads of privilege can be summarised in broad terms as follows:
Trials are conducted in public other than in exceptional circumstances. Generally the trial will start with the claimant’s advocate making oral opening submissions, followed by opening submissions from the defendants. Witnesses of fact are called by each party in turn, starting with the claimant, and they will be cross examined by each other party’s advocate. This is followed by evidence from the parties’ experts. After all the evidence, each party will make oral closing submissions. Oral submission plays a central role, but it is common to have written opening and closing submissions in addition
Witness evidence is provided in the form of a witness statement served before trial; it must be limited to statements of fact, not opinion. Witnesses are normally required to attend court to give evidence in person (although in some circumstances video evidence may be permitted). The witness statement will generally stand as evidence in chief and the witness can then be cross-examined by the advocate for each other party, and may be re-examined by the advocate for the party who called them as a witness. Cross-examination is not limited to the content of the witness statement. It is possible to compel witnesses within the jurisdiction to attend court to give evidence. Evidence may be obtained from witnesses abroad through either the Hague Convention or, within the EU, Council Regulation (EC) No. 1206/2001.
Expert evidence is primarily provided in the form of an expert report. Following an exchange of expert reports, each side may put written questions to the other party’s expert, and experts may be ordered to meet to determine the areas on which they agree and disagree. The expert will be required to attend court to be cross-examined and re-examined on the contents of their report.
The court can order experts to give their evidence concurrently, known as hot-tubbing. The court can then hear each expert comment on the other expert’s evidence. This form of giving evidence would be led by the judge, with each party’s advocate given the opportunity to question the experts subsequently.
Documents may be admitted in evidence and unless challenged their authenticity need not be proved.
Expert evidence is likely to be essential in all private antitrust cases. Typically, expert evidence will be provided by economists, but other experts may be required such a forensic accounting or industry experts. Permission of the court is required for expert evidence. Generally the parties will each appoint their own expert, but it is possible for a single joint expert to be appointed, although this is exceptional. The primary duty of any expert is to the court, not to the party that has instructed it.
What must be proved will vary depending on the circumstances and the remedy sought. In stand-alone antitrust damages claims the claimant will need to establish both a breach of competition law and that it caused him or her harm. He or she will also need to establish the quantum of any damages so caused. In a follow-on damages claim, the claimant need not establish a breach of competition law, which is proved by the competition authority decision that an infringement of competition law has occurred. The claimant will, however, have to prove that that infringement has caused him or her loss and the amount of that loss.
One of the changes made following the implementation of the Damages Directive is in relation to the quantification of harm for claims where the infringement of EU or UK competition law started on or after 9 March 2017, where there will be a rebuttable presumption (rebuttable by the infringer) that cartel infringements cause harm (article 17 of the Damages Directive). The intention is to remedy the information asymmetry and some of the difficulties associated with quantifying harm in competition law cases, and to ensure the effectiveness of claims for damages.
The amendments made following implementation of the Damages Directive also provide for claims where the infringement of EU or UK competition law started on or after 9 March 2017 that, where the existence of a claim for damages or the amount of damages to be awarded depends on whether or to what degree an overcharge paid by a direct purchaser from the infringer has been passed-on to an indirect purchaser, in a claim by an indirect purchaser, there is a rebuttable presumption that an overcharge has been passed-on to the claimant unless the infringer can prove otherwise.
There are no defences that are unique to antitrust damages claims, but the passing-on defence is typically raised. The first English case that substantively dealt with the pass-on defence, was Sainsbury’s Supermarkets v Mastercard Incorporated and others  CAT 11. The CAT concluded that the pass-on defence is in reality not a defence at all: it simply reflects the need to ensure that a claimant is sufficiently compensated and not overcompensated, by a defendant and that the defendant does not pay more than compensatory damages (ie, it is not paying damages twice for the same wrong), when considering all of the potential claimants. The CAT considered that legal pass-on and economic pass-on were different and that the passing-on defence is only concerned with identifiable increases in prices by a company to its customers and not with other responses by a purchaser such as cost savings or reduced expenditure. It also stated that the increase in price must be causally connected with the overcharge, and demonstrably so. Finally, the CAT determined that the pass-on “defence” ought only to succeed where, on the balance of probabilities, the defendant has shown that there exists another class of claimant, downstream of the claimant(s) in the action, to whom the overcharge has been passed on. The CAT held that the burden of proving pass on is on the defendant.
For claims where the infringement of EU or UK competition law started on or after 9 March 2017, the implementation of the Damages Directive confirms that a defendant who to relies on the passing-on defence must prove the existence and extent of the pass-on of the overcharge.
Where the existence of a claim or the amount of damages to be awarded depends on whether, or to what degree, an overcharge has been passed on to an indirect purchaser, the indirect purchaser should be regarded as having proven that an overcharge has been passed on to it where it is able to show prima facie that such passing-on has occurred. This rebuttable presumption applies unless the infringer/defendant can show that the actual loss has not or not entirely been passed-on to the indirect purchaser.
Additional quantification guidance will be provided to member states by the Commission in the form of Guidelines for national courts on the passing-on of overcharges (the Guidelines).The Commission will be assisted in drafting the Guidelines by an expert study on the passing-on of overcharges arising from competition law infringements prepared by the economics firm RBB and published in October 2016. These guidelines will complement the existing EC Practical Guide on Quantifying Harm (published in the Official Journal of the EU on 13 June 2013) and will set out the economic theories, econometric methods and empirical insights which can be useful for national courts when assessing passing-on, and when estimating the pass-on rate and the loss of profit resulting from any lost business effect in the context of an antitrust damages action. The Guidelines are intended to assist judges, and other practitioners who are not economic experts, with guidance on obtaining and assessing economic evidence in relation to pass-on claims.
Following implementation of the Damages Directive there are in competition claims limited circumstances in which a parties liability might be limited by disapplying the rule of joint and several liability– see question 38.
It is not possible to specify how long an antitrust case usually lasts. In some cases it is important that the case moves promptly to trial, for example, if the remedy sought is an injunction. In such cases it is possible for the case to be determined within a year. In follow-on damages claims it has been common for significant delays to be caused by issues relating to jurisdiction and appeals against the infringement decision on which the claim is based. Also, given the wide ranging disclosure obligations in England and Wales, the disclosure process and arguments over what the appropriate scope of disclosure is often take time to resolve. Therefore, it is not uncommon for antitrust damages cases to take several years to reach trial. As the principles applicable to such cases become more established, it is expected that the procedure will speed up.
A fast-track claims procedure is available in the CAT for appropriate cases. The CAT may decide at any time, either of its own initiative or on the application of a party, to make an order that the proceedings be subject to the fast-track procedure (it cannot apply to class actions). If the fast track applies, it will have important consequences, as the substantive trial will take place within six months (although judgment will not necessarily be handed down in that period) and any costs a party could be ordered to pay will be capped. This expedited procedure and capped costs exposure is intended for simpler claims and is designed to make claims more accessible to SMEs. A number of fast-track cases have been brought since they were introduced in October 2015.
In the High Court the decision maker is a single judge. In the CAT, the tribunal is made up of three members, a legally qualified chairman and two other members who have other relevant experience (often in economics).
As with other elements of a claim, the claimant must establish the quantification of damages to the satisfaction of the court on the balance of probabilities. It is clear, however, from general case law that the court will not be deterred from awarding damages because it is not possible to quantify the loss precisely and will make the best estimate which it can.
See also question 32 regarding the rebuttable presumption that cartel infringements cause harm, and the burden of proof regarding indirect purchasers and question 33 regarding the passing-on defence following the CAT’s decision in Sainsbury’s Supermarkets v Mastercard Incorporated and others (where the CAT held that the burden of proof in respect of passing-on is on the defendant).
In antitrust cases the court will apply the usual tortious approach of assessing damages at the level that would put the claimant in the same position he or she would have been in had no tort been committed. The exact limits of recoverable damage in antitrust damages cases have yet to be established.
The general approach of the court will be to compare the so-called counter-factual circumstances with what actually occurred. In doing so, the court will be heavily dependent on the expert evidence adduced by the parties. The approach used by experts will vary and will often involve econometric techniques. The Commission published guidance in 2013, which courts in member states may follow in antitrust damages cases. The guidance illustrates and offers insights on the types of harm normally caused by anticompetitive practices and offers an overview of the main methods and techniques available to quantify such harm in practice.
The Damages Directive states that anyone who has suffered harm caused by an infringement can claim full compensation (article 3). Full compensation should place a person who has suffered harm in the position in which that person would have been had the infringement not been committed. The Damages Directive provides that this should include compensation for actual loss, for gain of which that person has been deprived (loss of profit), plus interest, irrespective of whether those categories are established separately or in combination in national law. The payment of interest is an essential component of compensation to make good the damage sustained by taking into account the effluxion of time and should be due from the time when the harm occurred until the time when compensation is paid, without prejudice to the qualification of such interest as compensatory or default interest under national law and to whether effluxion of time is taken into account as a separate category (interest) or as a constituent part of actual loss or loss of profit. It is incumbent on the member states to lay down the rules to be applied for that purpose.
However, the concept of full compensation under the Damages Directive is not intended to lead to overcompensation, whether by means of punitive, multiple or other damages (article 3(3)). National courts are also required to have appropriate procedural means, such as joinder of claims, to ensure that compensation for actual loss paid at any level of the supply chain does not exceed the overcharge harm caused at that level (such means should also be available in cross-border cases). Given this is already common practice in UK courts, the UK Government decided that there was no requirement to amend UK legislation in this regard.
There has yet to be a decision on this issue and the answer may depend on the circumstances. However, where two or more parties have been involved in a common enterprise that was a competition law infringement (eg, a cartel) it is generally accepted that they will be jointly and severally liable for the loss caused.
The Damages Directive explicitly provided for joint and several liability for joint infringers. In the UK, it is well accepted that a defendant may be jointly and severally liable, as required by article 11 of the Damages Directive and the UK government decided not to expressly set out the joint and several liability of competition co-infringers in legislation. However, the UK’s implementation of the Damages Directive introduced for claims where the infringement of EU or UK competition law started on or after 9 March 2017 two exemptions to this principle: (i) in the case of SMEs (whose market share in the relevant market was below 5 per cent at any time during the infringement of competition law and the application of the normal rules of joint and several liability would irretrievably jeopardise its economic viability and cause its assets to lose all their value); and (ii) those who have received immunity under a leniency programme (see questions 7 and 8 above). The leniency applicant will, however, still be liable to its direct or indirect purchasers or providers and to other injured parties only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law.
In addition, implementing article 19 of the Damages Directive, UK legislation stipulates, for claims where the infringement started on or after 9 March 2017, that following a consensual settlement, the claim of the settling claimant is reduced by the settling defendant’s share of the loss and damage regardless of the terms of the settlement. In addition, any other infringer liable for the claim may not bring a contribution claims against the settling infringer, regardless of the terms of the settlement. The result is to ensure that, even after a consensual settlement, the settling defendant does not continue to be jointly and severally liable for the loss to the settling claimant, and should not have to contribute to its non-settling co-defendants share of the loss. The only derogation from this is if the non-settling infringer cannot pay the damages that correspond to the remaining claim of the settling injured party, the settling claimant may exercise the remaining claim against the settling co-defendant unless there was agreement to the contrary.
The Civil Liability (Contribution) Act 1978 (the Act) provides that where two or more parties are liable to a claimant for the same damage they have the right to claim an indemnity or contribution to any damages they are liable to pay (either under a settlement or an award of damages). An indemnity or contribution can be claimed against another defendant or a third party.
The amount of the contribution, which could be set at nil or a full indemnity, will be the amount the court considers just and equitable having regard to the extent of that person’s responsibility for the damage in question. A contribution can be claimed under the Act against a successful leniency applicant.
For claims where the infringement of EU or UK competition law started on or after 9 March 2017 the UK’s implementation of the Damages Directive makes a number of changes to the operation of the Act. It provides that an infringer may recover a contribution from any other infringer, the amount of which shall be determined in the light of their relative responsibility for the whole of the loss and damage caused by the infringement (taking account of any amounts already paid in a settlement). In addition the amount of contribution of an infringer that has been granted immunity from fines under a leniency programme shall not exceed the amount of the harm it caused to its own direct or indirect purchasers or providers. The only exception to this is where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law.
The implementation of the Damages Directive also alters the position in relation to contribution claims in relation to claims where the infringement of EU or UK competition law started on or after 9 March 2017 and where a co-defendant has already settled (see also question 38). The claim of the settling claimant should be reduced by the settling defendant’s share of the loss and damage regardless of the terms of the settlement. Any non-settling co-infringer shall not be permitted to recover contribution for the remaining claim from the settling infringer.
The Court has a wide discretion as to whether one party should pay the costs of another and how they should be calculated. As a general rule, the winning party will be entitled to recover its reasonable costs from the losing party. The amount of costs payable will be subject to a detailed assessment by a specialist judge if the amount cannot be agreed, and the amount recovered will commonly be significantly less than the full legal costs incurred. The costs recoverable will generally include legal fees, fees of expert witnesses, court fees and other expenses. In addition, where a party had entered into a conditional fee agreement (CFA) with his or her own lawyer (see question 42) prior to 1 April 2013, the uplift on the lawyer’s normal fees may be recoverable from the paying party up to a maximum of 100 per cent. Further, if before 1 April 2013 the winning party had entered into an after-the-event (ATE) insurance policy covering legal costs, the premium for that insurance would be recoverable. The rules that apply to CFAs and ATE insurance arrangements entered into from 1 April 2013 provide that the uplift and premium are not recoverable.
Costs are always at the discretion of the court, therefore, the court may limit the ability of the successful party to recover its costs. It might, for example, not allow recovery of costs in respect of specific issues. In addition, the parties can use settlement offers to try to limit their costs exposure. If a settlement offer complies with certain requirements (set out in CPR 36 for the High Court and Rule 45 of the CAT’s Rules) it can provide some costs protection even if, ultimately, the party making the offer is unsuccessful at trial.
From 1 April 2013, lawyers have been able to enter into Damage Based Agreements (DBAs) with their clients, which, if the claimant is successful, allow the lawyer to recover from the claimant a contingency fee of up to 50 per cent of the damages. Successful claimants will still recover their basic legal fees from defendants in accordance with the usual costs shifting rule of loser pays, and the claimant will be obliged to pay any shortfall to meet the agreed sum under the terms of the DBA.
CFAs are also permitted. These provide that the client will only pay its own lawyer’s fees (or some element of them) if the client is successful. If the client is successful an agreed uplift (of up to 100 per cent) on the normal fees is payable. If the CFA was entered into prior to 1 April 2013 the uplift may be recoverable from the losing party. For CFAs entered into after that date the uplift is not recoverable from the losing party.
DBAs cannot be used for opt-out class actions in the CAT (see questions 48 and 52), although conditional fee arrangements, third-party funding and ATE insurance will be available. These funding arrangements will all assist the claimants in bringing these types of claim, removing some of the financial risks involved. DBAs will be permitted for opt-in class actions.
Third-party funding by a professional funder is permitted and is increasing. The sale of claims will in many circumstances be prevented by public policy considerations.
Insurance protecting against the risk of anti-competitive conduct is likely to be unenforceable as contrary to public policy. ATE insurance in respect of legal fees and related expenses is available to both claimants and defendants.
An appeal from the High Court or the CAT is made to the Court of Appeal. In the case of the CAT, appeals can only be made on a point of law or in relation to a decision concerning a finding of infringement of competition law, the grant of an injunction, the award of damages or the amount of damages awarded, but not interlocutory matters. Permission is required. In the first instance, an application for permission should be made in the High Court or the CAT. If permission to appeal is not granted, the appellant can apply to the Court of Appeal itself to request permission. Permission to appeal may only be granted where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.
In relation to competition collective actions before the CAT, section 49 of the Competition Act 1998 (as amended) deals with appeals against CAT decisions. Appeals are limited to points of law arising from a decision of the CAT as to:
Appeals may only be brought by the class representative or the defendant. Class members have no right to appeal decisions made in respect of the claims included in the collective proceedings. There are no express statutory provisions for appeals against the CAT’s decision on an application for a collective proceedings order (CPO) and there is some legal uncertainty as to whether there is a direct right of appeal to the Court of Appeal or whether such decisions can only be brought by way of judicial review in the Administrative Court. At the time of writing, the proposed representative in the Merricks v Mastercard proposed class action has sought permission from the CAT to appeal the CAT’s decision to dismiss the proposed £14 billion collective action.
The first appeal court is the Court of Appeal (see also question 45 in relation to appeals from the CAT regarding collective actions). A further appeal from the Court of Appeal can be made to the Supreme Court, which is the final appellate court in this jurisdiction. An application for permission to appeal must be made to the Court of Appeal in the first instance, and an application may then be made to the Supreme Court if the Court of Appeal refuses to grant permission. Permission is granted where the appeal raises an arguable point of law of general public importance that ought to be considered by the Supreme Court.
If there is a question of interpretation of European law at any stage of the proceedings in any court of England and Wales, a party can apply for that court (including the Supreme Court) to refer a preliminary question to the CJEU on that point pursuant to article 267 TFEU. Any court may also make a reference of its own volition. The proceedings before the English court are stayed pending the CJEU’s response. The CJEU will then issue a ruling on that question of interpretation, which the English court will apply to the facts of the case. At the time of writing it is unclear when and how Brexit will impact the English court and the CAT’s relationship with the CJEU.
An appeal will be allowed where the decision of the lower court was wrong (which can include an error in law, in fact or in the exercise of its discretion) or was unjust because of a serious procedural or other irregularity in the proceedings. Any appeal is limited to a review of the decision of the lower court, and the parties cannot introduce new evidence or arguments unless the Court of Appeal considers that it would be in the interests of justice to permit it.
On 1 October 2015 the Consumer Rights Act 2015 introduces for the first time in the UK an opt-out collective actions regime in the CAT especially for antitrust claims.
The CAT has powers to hear collective proceedings (or class actions) for breach of competition law, on either an opt-out or opt-in basis. In determining whether collective proceedings should be opt-in or opt-out proceedings, the CAT rules provide that the CAT will take into account all matters it thinks fit, including the strength of the claims and whether it is practicable for the proceedings to be brought as opt-in collective proceedings, having regard to all the circumstances, including the estimated amount of damages that individual class members may recover.
If the CAT approves an opt-out class action, all eligible claimants domiciled in the UK will be included in the action automatically, unless they choose to opt out. Overseas claimants will not be automatically included in the class, but they may choose expressly to opt in to the class.
The CAT can also approve claims as an opt-in class action, covering only claimants who choose to join the class action (ie, a claim in the form that is currently allowed).
Since 1 October 2015 there have been two collective actions issued pursuant to the Consumer Rights Act 2015: (i)a claim brought on behalf of the National Pensioners Convention for damages relating to inflated prices for mobility scooters (Dorothy Gibson v Pride Mobility Products Ltd  CAT 9); and (ii) a claim for approximately £14 billion grouping together claims of around 46 million UK consumers that bought goods and services from UK merchants accepting Mastercard cards between 1992 to 2008 (Merricks v Mastercard  CAT 16). Both of these claims failed to be approved as a class action and to obtain a collective proceedings order (CPO). The Pride Mobility case was adjourned following faults found with the applicant’s case concerning the definition of the proposed classes and the methodology used to formulate them (and the Claimants subsequently decided not to pursue their application for a CPO) and in the Mastercard claim the CAT refused to grant a CPO finding inter alia that there was “no plausible way of reaching even a very rough-and-ready approximation of the loss suffered by each individual claimant from the aggregate loss calculated” and, as a result, the award of aggregate damages which was sought and would then be distributed would not result in damages being paid to individual consumers in accordance with the compensatory principle. At the time of writing, the proposed representative in the Mastercard claim has sought permission from the CAT to appeal the CAT’s decision to refuse a CPO.
While representative proceedings are permitted in the High Court in limited circumstances, the only case to date to attempt to use the procedure in an antitrust damages claim, Emerald Supplies Ltd v British Airways Plc  EWCA Civ 1284, was rejected by the Court of Appeal.
Proceedings can, and often do, take the form of multi-party claims whereby multiple claimants (numbering several hundred) issue proceedings on the same claim form, pursuing the same defendant(s).
In the High Court, if a large number of claims that give rise to common or related issues of fact or law are brought in separate proceedings, the court can make a group litigation order (GLO) to enable the claims to be case-managed together. The test is not so stringent as to require the claimants to have the same interest in the claims. The GLO will give directions as to the establishment of a register covering all the claims to which the GLO relates. The court may consider it prudent to take certain claims as test claims, which then establish principles for generic issues that are relevant to the wider claims. Any judgment or order is binding on all claims within the GLO, unless the court orders otherwise. GLOs are not commonplace and they have not yet been used in private damages antitrust claims.
Collective actions in the CAT can be brought either by a representative claimant or by a third party. The individual or body bringing the class action under the new CAT rules only has to be ‘an appropriate representative’ and the CAT will decide whether it is just and reasonable for that person to act as a representative. The representative need not be a member of the proposed class and could, for example, be a representative body such as a trade or consumer association. The CAT must consider if the representative would fairly and adequately represent the interest of class members, whether it has any conflict of interest with class members and is able to pay the defendants costs. It will also look at the capability of the representative to manage the proceedings, whether it has a plan for communicating with and consulting class members, and the arrangements it has made in respect of funding the claim. It is possible for sub-classes to be identified and for sub-class representatives to be appointed if there are issues that are not common across the entire class.
Before a class action can proceed, the CAT will need to make a collective proceedings order (CPO) – effectively certifying the class. This is an important protection for defendants against frivolous or inappropriate claims and is likely to prove a very important part of the litigation. The following must be established:
In considering what is suitable for a collective claim, the CAT will take into account all matters it thinks fit, including whether a collective claim is an appropriate means for the fair and efficient resolution of the common issues, the costs benefits, the size and nature of the class and whether the claims are suitable for an aggregate award of damages.
The CAT will also consider whether the claim should be an opt-out or opt-in claim and in doing so will consider the strength of the claim and whether an opt-in claim would be practicable.
It remains to be seen how the CAT will apply its very wide discretion given that the first two proposed collective actions have failed at the class certification stage, but the kinds of claim most likely to be considered suitable for class actions and, in particular, opt-out claims are consumer claims, where the size of the class makes a class action efficient and an opt-in claim impracticable. In addition, a consumer claim is less likely to raise individual issues (such as the extent of pass-on) than a business claim.
It is important to note that the CAT can order that parts of a claim or certain issues in a claim are suitable for collective determination and this may provide a method to bring a collective claim even where aspects of a case are not common.
If an opt-out class is ordered, the outcome of the proceedings will be binding on all those who are members of the class domiciled in the UK and who have not opted-out, together with those overseas members who have opted in.
See question 50.
The CAT has the power in suitable cases to make an aggregate award of damages in respect of the class as a whole, without undertaking an assessment of the amount of damages recoverable in respect of the claim of each represented class member. Exemplary damages are not available in class actions.
Damages awarded will be paid to the representative (or a third party), from which class members must claim their share within a stated period. Any monies not claimed by class members within the period will be paid to charity or may be paid to meet the representative claimant’s legal costs.
The representative claimant will remain exposed to the cost of bringing proceedings that are ultimately unsuccessful, as the general principle of “loser-pays” in English litigation principle will apply to class actions. In addition, the contingency fees regime, which has recently allowed contingency fees in English litigation for the first time (DBAs – referred to in question 42), cannot be used for opt-out class actions, although conditional fee arrangements, third-party funding and ATE insurance will all be available. These funding arrangements will all assist claimants in bringing these types of claim, removing or mitigating some of the financial risks involved. DBAs will be permitted for opt-in class actions.
The CAT can approve collective settlements, both where a class action has been brought and, significantly, in circumstances in which no class action has been brought (see question 54). A collective settlement will be approved by the CAT only if it is satisfied that the terms are just and reasonable. In determining this, it must have regard to the amount and terms of the settlement, the class size, the likelihood of a judgment being obtained for a significantly higher sum, the likely duration and costs of the proceedings, and the views of the parties’ expert or lawyer or other any class member. It will be binding on all persons falling within the class described in the collective settlement order, although it will not be binding on a person who opts-out of the class action or is not domiciled in the UK and has not opted-in
Where no class action has been brought, a would-be representative may apply to be appointed as a settlement class representative and then, once a settlement has been agreed, seek the approval of the settlement, which will then be binding on the class members. In these circumstances, the CAT first has to consider the suitability of the proposed settlement class representative and whether the claim would be eligible for a collective claim and then whether it will approve the settlement.
The Consumer Rights Act 2015 also gives the CMA the power to certify voluntary redress schemes submitted by a business that relate to infringements of competition law set out in the Competition Act 1998 or articles 101 or 102 TFEU (see question 55). There is a risk that setting up such a scheme could open businesses up to a potentially significant financial exposure that might not otherwise arise. Businesses will have to weigh up the benefits of setting up the scheme (and any potential penalty reduction that the CMA may consider in light of the infringing party’s voluntary provision of redress – see below) and avoiding costly litigation, against the potential exposure that might arise anyway if the potential claimants were left to bring damages claims. The CMA’s guidance indicates that it will retain discretion to decide whether a scheme merits a penalty reduction (up to a maximum of 20 per cent), but there is no absolute right to a reduction
The Consumer Rights Act 2015 also gives the CMA the power to certify voluntary redress schemes submitted by a business that relate to infringements of competition law set out in the Competition Act 1998 or articles 101 or 102 TFEU (including both agreements or concerted practices between businesses that prevent, restrict or distort competition or abuse a business’s dominant position). The CMA will also have the power to approve a redress scheme, subject to a condition or conditions requiring the provision of further information about the operation of the scheme (including about the amount or value of compensation to be offered under the scheme or how this will be determined). Once the redress scheme is approved the compensating party is under a duty to comply with the terms of an approved scheme. The duty is owed to any person entitled to compensation under the terms of the approved scheme. Where such a person suffers loss or damage as a result of a breach of the duty, the injured party or the CMA may bring civil proceedings before the court for damages or an injunction.
On 14 August 2015, the CMA issued guidance on the approval of voluntary redress schemes for infringements of competition law. The CMA sees its voluntary redress scheme as a form of alternative dispute resolution and hopes that it will serve as an additional option for businesses to offer, and harmed persons to receive, compensation for loss suffered as a result of a competition law breach with a view to reaching an early compromise and avoiding litigation altogether. A business wishing to set up a voluntary redress scheme may apply to do so after an infringement decision has been issued by the CMA or the European Commission, or, alternatively, an application can be made where there is no infringement decision yet, but the CMA is investigating conduct that may constitute a breach of the competition rules. Applications during the course of an ongoing CMA competition investigation are, in practice, expected to be submitted after the CMA has issued its statement of objections to parties under investigation, since that is the point at which businesses will have seen the detail of the infringements alleged against them.
As a matter of English law competition issues are regarded as arbitrable (see, for example, ET Plus v Welter  EWHC 2115)
The English courts will generally enforce an agreement to arbitrate. The primary issue concerning the enforceability of an arbitration agreement will be whether as a matter of construction it covers the dispute that has arisen. The English courts are likely to take a liberal view of this. The English High Court has recently stayed a breach of competition law claim to arbitration holding that in that case the contractual arbitration clauses extended to the tortious claims for breach of competition law because of the links between the contractual relationship and the claim, see Microsoft Mobile OY (Ltd) v Sony Europe Ltd  EWHC 374 (Ch). It is possible also that an arbitration agreement itself might be unenforceable by virtue of illegality because for, example, the agreement to arbitrate has some anticompetitive effect.
There is strong encouragement to use ADR in all cases before the English courts. Parties and their lawyers are obliged to consider it and it is possible that an unreasonable refusal to enter into ADR can be penalised by costs orders being made against that party. However, the court will not compel parties to engage in ADR absent a contractual agreement to do so.
The Commission has long been a strong advocate of antitrust damages claims in Europe. It has engaged in a long process of discussing proposals to reform the law to facilitate such claims starting with studies and a Green Paper in 2005 and a White Paper in 2008. This process has had to take account of the very different legal systems of each member state and has finally resulted in the Council and the European Parliament reaching agreement on the text of a proposed directive in March 2014. The Parliament voted to adopt the directive on 17 April 2014 and the EU Council of Ministers formally adopted the directive on 10 November 2014 (Directive 2014/104 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and the EU was published in the Official Journal on 5 December 2014 (OJ 2014 L349/1)). The Directive clarifies the law in a number of areas and introduces reforms intended to provide a right to compensation for those that have suffered harm caused by an infringement of competition law and to make such claims easier to bring.
The UK regulations to implement the Damages Directive came into force on 9 March 2017. As the UK already has well-established rules governing claims for competition damages that are similar to the regime set out in the Damages Directive the UK government adopted a light touch approach to implementation. This meant that, where provisions already met the requirements of the Damages Directive in UK law (including case law and common law), those were left in place and changes were made to legislation and Court and CAT Rules in order to implement those provisions that were not already covered by UK legislation or rules. The UK regulations implemented the Damages Directive as a single regime that has the same procedures whether the original breach was of EU or UK competition law.
Importantly the implementation of the Damages Directive will not apply retroactively to claims where a national court was seized prior to 9 March 2017 (the date the Damages Directive entered into force). In addition, the substantive law provisions will not apply to claims where the infringement started before the date of implementing legislation (even if the infringement straddles the implementation date). Some of the procedural changes, such as the rules for disclosure and use of evidence, will apply for all competition damages claims brought on or after 9 March 2017.
Given that many of the requirements of the Damages Directive are already part of UK law, many of these changes set out in the Damages Directive will have less effect in England and Wales compared with other member states.
The UK government is also an advocate for antitrust damages claims, and on 1 October 2015 the Consumer Rights Act 2015 and the new CAT Rules came into force. The objective of the competition law changes brought in by the Consumer Rights Act 2015 is to encourage and facilitate private enforcement of competition law in the UK especially within the CAT.
Prior to the Consumer Rights Act, there had been an almost total absence of private enforcement claims brought on behalf of consumers and small businesses, therefore, the aim of the legislation is to remedy the difficulties faced by claimants and to encourage competition litigation claims to be brought in the CAT. The most significant change is the introduction of US style opt-out class actions for breach of competition law (see question 48) and the new fast-track claims procedure in the CAT (see question 34).
One of the main aims of these changes is to allow claims to be brought on behalf of end-consumers and small businesses where the value of individual claims may otherwise be too small when compared with the costs of bringing a claim, and to provide a mechanism to allow appropriate claims to be dealt with simply and quickly. To date, two applications for certification of opt-out collective actions have been brought, although at the time of writing, no class has yet been approved by the CAT. A number of fast-track cases have been brought since October 2015.
In recent years there has been a marked increase in the number of private antitrust damages claims brought in the courts of England and Wales. Most of these claims involve foreign claimants and defendants. The cross-border nature of antitrust infringements means that claimants frequently enjoy a choice of jurisdictions in which they can bring their claims. As a result, a handful of European jurisdictions are emerging as the most attractive, one of which is England and Wales.
The UK voted in a referendum in June 2016 in favour of leaving the EU. At the time of writing it is unclear when and how a Brexit will be implemented. It is not possible yet to gauge the impact of this on claims in the UK for breach of EU competition law. At least until such time as the UK actually leaves the EU, the law and procedure relating to such claims will remain unaffected and the UK government will continue to negotiate, implement and apply EU legislation.