The UK Court of Appeal slashes a cartel follow-on damages award and emphasises claimants’ burden to prove losses in a claim brought by power cable manufacturers for market-sharing and customer allocating (BritNed / ABB)

BritNed Development Limited ("BritNed") brought a claim against ABB arising from the European Commission's 2014 power cables cartel decision. In October 2018, the High Court found that there had been no overcharge but awarded damages for "baked-in inefficiencies" and "cartel savings" plus simple interest, which were reduced in a subsequent judgment by 10% to account for the relevant regulatory cap on profits. BritNed appealed, seeking an increase in damages, and ABB brought a cross-appeal in relation to the "cartel savings". BritNed's appeal was dismissed in full, while ABB's was allowed. WHAT YOU NEED TO KNOW - KEY TAKEAWAYS Only compensatory damages are available in the English courts; restitutionary awards will not be permitted. A saving by a cartelist cannot form the basis for a loss