UK Class actions

General antitrust

The UK Parliament extends the Competition Appeal Tribunal’s jurisdiction and powers to hear competition damages cases
St John’s Chambers (Bristol)
United Kingdom: Consumer Rights Act 2015 introduces new procedures for competition litigation, including collective follow-on damages actions* On 1 October 2015, the Consumer Rights Act 2015 (“CRA 2015”) entered into force. The CRA 2015 makes numerous changes to consumer rights laws in the (...)

The UK Parliament implements a regime issued from the Consumer Right Act extending the powers of the Competition Appeal Tribunal
Blackstone Chambers (London)
Private Actions: The CRA 2015 giveth; and the 2015 CAT Rules taketh away Introduction* Today, on the 1st October 2015, when we are supposed to be celebrating the brave new world of the Competition Act 1998 (“CA”) as amended by the Consumer Rights Act 2015 (“CRA”), cartelists and other competition (...)

The UK Parliament’s Consumer Rights Act 2015 enters into force
White & Case (London)
,
White & Case (Brussels)
,
White & Case (Brussels)
The entry into force of the UK Consumer Rights Act 2015 (the “CRA”) on 1 October 2015 marks the introduction of opt-out class actions in the UK, further transforming the legal landscape for private damages claims in the UK. Together with further changes as a result of the UK’s implementation of (...)

The UK Parliament adopts the Consumer Rights Act to boost private enforcement of competition law
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 1 October 2015 the Consumer Rights Act 2015 entered into force. This reforms and consolidates consumer protection laws in the UK but also - (...)

The UK Parliament introduces a class action mechanism for antitrust damages
Covington & Burling (London)
,
Covington & Burling (Brussels)
,
Covington & Burling (Brussels)
The UK has introduced a class action mechanism that could lead to an increase in antitrust litigation. Most significantly, the new mechanism will enable opt-out class actions, which are potentially effective in aggregating individually low value claims, into a single high value, and (...)

The UK Government announces plans to introduce an opt-out class action regime in its consultation paper on options for reforming the private enforcement system
Blackstone Chambers (London)
Collective Actions: loss in complex cases* The big news from last week’s UK announcement on reforming private competition enforcement is that the government plans to introduce opt-out class actions for competition claims. The proposals incorporate various “safeguards” designed to ensure that the (...)

The UK Government shares proposals for consumers and businesses to bring collective damages claims against competition law infringers
McDermott Will & Emery (Brussels)
,
Norton Rose Fulbright (Brussels)
UK GOVERNMENT ANNOUNCES PROPOSALS FOR AN "OPT-OUT" COLLECTIVE COMPETITION DAMAGES ACTION * On 29 January 2013, the UK Government’s Department for Business, Innovation & Skills announced new proposals designed to improve the ability for consumers and businesses to bring collective damages (...)

The UK Government publishes proposed changes to the mechanisms for bringing private actions for alleged breaches of antitrust law
Covington & Burling (London)
The UK Government has published proposed changes to the mechanisms for bringing private actions for alleged breaches of antitrust law. The most significant change is to introduce an ‘opt-out’ collective redress mechanism, allowing claims to be brought on behalf of persons who need not be active (...)

The UK Government publishes a consultation document on how best to encourage private sector challenges to anticompetitive behaviour
McDermott Will & Emery (Brussels)
,
McDermott Will & Emery (Brussels)
,
McDermott Will & Emery (Paris)
PRIVATE ACTIONS IN COMPETITION LAW: UK GOVERNMENT CONSULTATION* On April 24, 2012, the UK government took a significant step towards private antitrust actions by publishing a consultation document on how best to encourage private sector challenges to anticompetitive behavior. This consultation (...)

The UK Government announces proposals for reform of the private competition damages regime
White & Case (London)
,
White & Case (London)
As widely expected, earlier this week the Government announced proposals for reform of the private competition damages regime in the UK, proposing to increase the Competition Appeal Tribunal’s (CAT) power and introduce an opt-out “collective action” scheme before the CAT . The proposed changes (...)

Anticompetitive practices

The UK Supreme Court confirms that English courts may set the terms of global licences to portfolios of standard essential patents (Unwired Planet / Huawei)
Bristows (London)
,
Bristows (London)
English courts given green light to set terms of global FRAND licences* On 26 August 2020, the UK Supreme Court (UKSC) gave its eagerly awaited judgment in Unwired Planet v Huawei and Conversant v Huawei & ZTE. In a unanimous policy-driven decision, the Court dismissed the appeals brought (...)

The UK Supreme Court hands down a judgement between a software and a telecommunication company, providing answers on questions concerning the English Courts’ approach to FRAND disputes (Unwired Planet / Huawei)
Hogan Lovells (London)
,
Hogan Lovells (London)
,
Hogan Lovells (London)
The UK Supreme Court has handed down its long-awaited judgment in the Unwired Planet v Huawei and Conversant v Huawei & ZTE proceedings ([2020] UKSC 37), providing answers on several key questions concerning the English Courts’ approach to FRAND disputes. In a unanimous judgment, the (...)

The UK Supreme Court confirms that it is possible to set global FRAND rates and global licences to portfolios of standard essential patents (Unwired Planet / Huawei)
Baker Botts (Brussels)
,
Baker Botts (Brussels)
The U.K. Supreme Court’s 26 August ruling on standard-essential patents (SEPs) is the latest in a series of recent decisions that are likely to have a profound effect on FRAND license negotiations across the globe, in particular for the next generation 4G and 5G mobile telecommunication (...)

The UK Competition Authority fines 3 pharmaceutical companies £2.3 million for anti-competitive agreement in the supply of life-saving drug fludrocortisone and secures £8 million in damages for the National Health Service (Aspen / Tiofarma / Amilco)
United Kingdom’s Competition Authority - CMA (London)
CMA levies fines of £2.3m and secures £8m for NHS in pharma probe* The CMA has formally concluded that 3 pharmaceutical companies took part in an illegal arrangement in relation to the supply of life-saving medicine. The investigation by the Competition and Markets Authority into the supply of (...)

The UK Supreme Court finds payment card schemes used in supermarkets infringing competition law (Visa / Mastercard)
Hausfeld (London)
,
Hausfeld (London)
The UK Supreme Court recently handed down its eagerly anticipated Judgment in respect of unlawful interchange fee claims against MasterCard and VISA, following almost a decade of litigation. The Judgment provides welcome clarity to merchant retailers as to the unlawfulness of MasterCard’s and (...)

The UK Supreme Court dismisses an appeal concerning the two largest payment processing networks on the basis that their multilateral interchange fees restricted competition (Sainsbury’s / Visa & MasterCard)
Van Bael & Bellis (Brussels)
On 17 June 2020, the UK Supreme Court dismissed Mastercard and Visa’s appeal against a 2018 ruling by the Court of Appeal of England and Wales and ruled that their multilateral interchange fees (“MIFs”) unlawfully restricted competition. The Supreme Court’s ruling potentially exposes Mastercard and (...)

The UK Supreme Court finds payment card schemes used in supermarkets infringing competition law (Sainsbury’s / Visa & MasterCard)
Morgan Lewis (London)
,
Morgan Lewis (London)
,
Morgan Lewis (London)
On June 17, 2020, the UK Supreme Court handed down its judgment in the appeals on the lawfulness of multilateral interchange fees, or swipe fees, (MIFs) in Sainsbury’s Supermarkets Ltd (Respondent) v. Visa Europe Services LLC and Others (Appellants) and Sainsbury’s Supermarkets Ltd and Others (...)

The UK Supreme Court dismisses the two largest payment processing networks arguments on the basis that their multilateral interchange fees restricted competition but upholds grounds of appeal concerning the application of the “passing on” defence (Sainsbury’s / Visa / MasterCard)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
On 17 June 2020, the Supreme Court handed down a much anticipated judgment concerning the default multilateral interchange fees (MIFs) set by Mastercard and Visa (together, the Appellants). The case considered appeals relating to three separate damages actions brought by retailers against the (...)

The UK Court of Appeal upholds the ruling of the Competition Appeal Tribunal in its schemes governing suppliers’ access to its infrastructure (Network Rail / RISQS)
Ashurst (London)
,
Ashurst (London)
The Court of Appeal on 5 March 2020 handed down a judgment upholding the ruling of the Competition Appeal Tribunal ("CAT") of July 2019 which found Network Rail had infringed the Chapter I and II prohibitions of the Competition Act 1998 by requiring, in its schemes governing suppliers’ access to (...)

The UK Competition Authority closes its pharma probe by fining 4 companies more than £3.4 million and requiring a payment of £1 million directly to the NHS for breaches of competition law in relation to the supply of an antidepressant (King Pharmaceuticals / Accord-UK / Lexon / Alissa Healthcare Research)
United Kingdom’s Competition Authority - CMA (London)
Over £3m in fines and £1m for NHS in CMA pharma probe* Following an investigation, the CMA has found that 4 pharmaceutical companies broke competition law in relation to the supply of an antidepressant. The probe by the Competition and Markets Authority (CMA) into the supply of nortriptyline, a (...)

The UK Competition Appeals Tribunal rules on which part of the EU Commission’s settlement decision is binding on a defendant and that it is an abuse of process for defendants to deny in follow-on damage claim findings that are contained in settlements (DAF Trucks)
Hausfeld (London)
,
Hausfeld (London)
,
Hausfeld (London)
In an important judgment for follow- on damages claims, the Competition Appeal Tribunal has ruled that a number of findings made by the European Commission in its Trucks ‘settlement’ Decision are binding on the defendants and the Tribunal; and that, subject to limited exceptions, it is an abuse (...)

The UK Court of Appeal clarifies principles governing competition damages and reiterates that judges must base their decisions on the evidence before them by exclusively focusing on the loss of the claimant (BritNed / ABB)
Case Associates (London)
The Court of Appeal in BritNed v ABB [2019] EWCA Civ 1840 has again had to clarify the principles governing competition damages. It reaffirmed the English High Court’s rejection of the claimant’s approach to damages but took issue with the trial judge’s position that damages should err on the side (...)

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)
Ashurst (London)
,
Ashurst (London)
,
Ashurst (London)
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 (...)

The UK Court of Appeal hands down a follow-on damages claim against a power cable cartel member (BritNed / ABB)
Bird & Bird (Amsterdam)
,
Bird & Bird (London)
On 31 October 2019, the Court of Appeal of England and Wales ("Court") handed down a significant judgment in relation to BritNed’s follow-on damages claim against a power cable cartel member, ABB. The Court allowed ABB’s cross-appeal in relation to cartel savings, finding that the High Court of (...)

The UK Competition Appeal Tribunal adopts a practical approach to realities of collective actions damages due to the Truck cartel decision (Road Haulage Association / UK Trucks Claim)
Hausfeld (London)
,
Hausfeld (London)
A recent judgment by the UK Competition Appeal Tribunal (the “Tribunal”) in the Trucks collective actions regarding funding and adverse costs arrangements is welcome news for class claimants and undoubtedly positive for the development of the UK’s young collective actions regime.[2019] Competition (...)

The UK High Court of Justice rejects methodology for estimating overcharges on cables based on economic evidence (BritNed / ABB)
The Brattle Group (London)
ABSTRACT In the first cartel overcharge claim brought in the English High Court, the claimant’s methodology for estimating ABB overcharges on the BritNed cable was comprehensively rejected. The Court concluded that the claimant’s econometric analysis was insufficiently grounded in facts and (...)

The UK High Court delivers its first follow-on cartel damages case judgment in the electricity interconnected cable market (ABB / BritNed)
Freshfields Bruckhaus Deringer (London)
,
Freshfields Bruckhaus Deringer (London)
The High Court has delivered its decision in the claim brought by BritNed Development Limited (BritNed) against ABB AB and ABB Ltd (together ABB). The case is significant as it is the first cartel damages claim to reach final judgment in the English courts. BritNed alleged that it suffered (...)

The UK High Court of Justice rejects econometrics analysis in a cartel damage case for being too complex (BritNed / ABB)
Case Associates (London)
BritNed Development Ltd v. ABB AB and ABB Ltd [2018] EWHC 2616 (Ch). (“BritNed”) is the first English cartel damage judgment and the first to consider an econometric approach to calculating overcharges. The court rejected the claimant’s econometric analysis as ‘too complex’ and “unspecific”. Here (...)

The UK Court of Appeal adopts a ruling allowing plaintiffs in cartel damages actions to advance claims based on overcharges incurred outside of the EU when they ultimately hit the sales of their finished goods within the EU (Liyama)
Dentons (Brussels)
,
Levi Strauss (Brussels)
On February 16, 2018, the UK Court of Appeal adopted its much awaited ruling in the iiyama case. Taking stock of the Court of Justice (CoJ) ruling in Intel last year, the Court of Appeal allows plaintiffs in civil cartel damages actions to advance claims based on overcharges incurred by their (...)

The UK Competition Appeal Tribunal refuses a £14 billion class action against a financial service company (Merricks / MasterCard)
Covington & Burling (Brussels)
,
Covington & Burling (Brussels)
,
Covington & Burling (London)
On Friday, July 21, 2017, the UK’s Competition Appeal Tribunal (the “CAT”) handed down its second class certification decision under the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). It dismissed the application for two reasons. First, the proposed representative (...)

The UK Competition Appeal Tribunal hands down its first-class certification judgment on concerted practices in the mobility scooter sector (Dorothy Gibson / Pride Mobility Products)
Covington & Burling (Brussels)
After a wait of nearly 15 months from the introduction of class actions in the UK for antitrust damages claims, the first class certification hearing took place before the UK’s Competition Appeal Tribunal (the “CAT”) between December 12 and 14. Having heard argument, the CAT is considering (...)

The UK Competition Appeal Tribunal allows the first class action brought under the competition law collective redress regime and continues providing some clarifications on important aspects of the regime (Dorothy Gibson / Pride Mobility Products)
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
Already, 2017 has seen significant developments in the UK’s competition litigation landscape. Most recently, last Friday the Competition Appeal Tribunal (CAT) allowed the first ’class action’ brought under the new competition law collective redress regime to continue, at least for now, providing (...)

The UK Competition Appeal Tribunal hands down its first-class certification for entering into agreements and concerted practices aimed at prohibiting the online advertising of certain models of mobility scooter (Dorothy Gibson / Pride Mobility Products)
Covington & Burling (Brussels)
,
Covington & Burling (Brussels)
,
Covington & Burling (London)
The UK’s Competition Appeal Tribunal (the “CAT”) has handed down its first class certification judgment in relation to the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). The result? The hearing has been adjourned, with the proposed representative allowed to file and (...)

The UK High Court concludes that multilateral interchange fees were not restrictive of competition and can be exempted under article 101(3) (MasterCard)
DLA Piper (London)
On 30 January 2017, the United Kingdom (UK) High Court handed down a judgment in favour of MasterCard in a damages claim brought by UK retailers (including Next, Acadia Group and Asda). The claimants alleged that MasterCard’s multilateral interchange fees (MIFs) were illegally restrictive of (...)

The UK Competition Appeal Tribunal rules on passing-on defense (Sainsbury ’s / Mastercard)
Blackstone Chambers (London)
The passing-on “defence” after Sainsbury’s*The passing-on defence – ie. whether the damages suffered by a purchaser of a product which has been the subject of a cartel are reduced if he passes on the overcharge to his own customers – had, as Tristan Jones blogged a few years ago, been the subject of (...)

The UK Competition Appeal Tribunal awards competition damages in country’s judgment on a standalone action (Sainsbury’s / MasterCard)
Cleary Gottlieb Steen & Hamilton (Rome)
The Competition Appeal Tribunal awards competition damages in UK’s first judgment on a stand-alone action* On 14 July 2016, the UK Competition Appeal Tribunal (CAT) ordered MasterCard to pay Sainsbury’s £68.6m plus interest for infringing competition law in the setting of UK multilateral (...)

The UK Competition Appeal Tribunal awards £8.6 million damages and finds that an undertaking setting of UK multilateral interchange fees for its payment cards infringed national and EU competition law on anti-competitive agreements (Sainsbury’s / MasterCard)
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
On 14 Jul the UK Competition Appeal Tribunal (CAT) issued its judgment in the damages claim brought by Sainsbury’s against MasterCard. The CAT found that MasterCard’s setting of UK multilateral interchange fees (MIFs) for its payment cards infringed the Article 101 TFEU/Chapter I prohibition on (...)

The UK Competition Appeal Tribunal hears the first damages claim since the entry into force of the Consumer Rights Act 2015 (NCRQ)
Collyer Bristow (London)
On 22 December 2015, the Competition Appeal Tribunal (the “CAT”) announced the commencement of two damages actions which, according to its website , were only the second and third claims issued in the CAT since 1 October, when the Consumer Rights Act 2015 came into force seismically changing (...)

The UK Court of Appeal strikes out two cartel damage claims based on the torts of conspiracy and economic interference and narrows the scope of other potential claims (Air Cargo)
Simmons & Simmons (London)
,
Simmons & Simmons (London)
,
Simmons & Simmons (London)
In brief There were three significant developments in the air cargo cartel damages litigation in the UK in October 2015. First, on 14 October 2015, the English Court of Appeal significantly narrowed the scope of potential claims in the UK by striking out two claims based on the torts of (...)

The UK Court of Appeal refuses to expand the qualification of victim down the chain to the ultimate consumer (Air Canada / Emerald Supplies)
Blackstone Chambers (London)
Blown out of the water? Air Cargo and the future of extra-EU/EEA cartel damages claims* If the captain of a trading ship fires cannon on a canoe to prevent the canoeists trading with another boat vying for their trade, that boat’s owners can sue the captain: Tarleton v M’Gawley (1793) Peake 270. (...)

The UK High Court of Justice guides on the application of the limitation period in damages actions (Arcadia / Visa)
St John’s Chambers (Bristol)
United Kingdom: High Court provides guidance on application of limitation periods in damages actions* The High Court has recently provided guidance on the application of limitation periods in competition damages actions. In Arcadia v Visa, it ruled that a substantial part of the claimant’s (...)

The UK Competition Appeal Tribunal rules that antitrust findings regarding the copper plumbing tubes cartel did not support the intent to injure required for a conspiracy claim brought under section 47A of the Competition Act (W.H. Newson / IMI)
London School of Economics and Political Science
Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)* In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act (...)

The UK Supreme Court grants permission to appeal against the Court of Appeal’s judgment that struck out a cartel damages claim on the ground that they were out of time (Deutsche Bahn)
Manchester University
Introduction Deutsche Bahn v Morgan Crucible is a well-litigated case, with a judgment from the Court of Appeal and the granted permission to appeal to the Supreme Court. Taking into account the novel issues involved in this case, it appears reasonable that the Supreme Court wants to resolve (...)

The UK Court of Appeal refuses to revive private damages claims against a subsidiary of the addressee of the graphite cartel EC decision (Emerson Electric / Mersen)
Blackstone Chambers (London)
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

The UK Court of Appeal allows price-fixing damages claims brought by an Irish utility service provider against a British industrial bag manufacturer based on Article 5(3) of the Brussels I Regulation (Bord NA Mona)
Blackstone Chambers (London)
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

The UK Court of Appeal dismisses an appeal against an action for damages arising from an Art. 101 TFEU violation on the market for the supply of industrial copper tubes (KME Yorkshire / Toshiba Carrier)
Blackstone Chambers (London)
Special pleading? Toshiba Carrier and the industrial tubes cartel* The Court of Appeal’s judgment last Friday in KME Yorkshire Ltd & ors v Toshiba Carrier UK Ltd & ors [2012] EWCA Civ 1990 will gladden the hearts of Article 101 damages claimants. It confirms that the Court will be (...)

The UK Court of Appeal dismisses an appeal seeking to strike out a damages claim brought against a company that was not the addressee of an EU Commission decision (Toshiba Carrier)
University of Leeds
On 13 September 2012, the Court of Appeal (England and Wales) dismissed an appeal which sought to strike out a damages claim (or grant summary judgment) brought against a company that was not the addressee of a European Commission decision finding an infringement of EU competition law. In (...)

The UK Court of Appeal paves the way for an ‘anchored’ follow-on claim against an industrial copper tube cartel liable under Art. 101 TFEU (Toshiba Carrier / KME Yorkshire)
Manchester University
On 13th September 2012, the UK Court of Appeal turned down an appeal by KME Yorkshire Ltd (“KME UK”) to summarily dismiss a private damages claim by Toshiba Carrier UK Ltd and other claimants (“Toshiba UK”). The claim was in respect of losses that occurred during the operation of a cartel between (...)

The UK Court of Appeal clarifies the meaning of the term “decision” in Section 47A of the Competition Act 1998 (Deutsche Bahn / Morgan Crucible)
King’s College (London)
The Court of Appeal, in its decision in Deutsche Bahn AG and others v Morgan Crucible plc, has clarified the meaning of the term “decision” in section 47A of the Competition Act 1998 for the purpose of applying the limitation period for bringing follow-on action claims for damages in the (...)

The UK High Court of Justice orders disclosure of parts for the unredacted version of the EU Commission’s switchgear cartel decision (National Grid / ABB)
Baker McKenzie (London)
,
Linklaters (London)
,
Constantine Cannon (London)
This article has been nominated for the 2013 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. *Antitrust Litigation: Access to Documents Held by Regulatory Authorities The English High Court has confirmed that the principles established by the judgment of (...)

The UK High Court rules in favour of partial disclosure of documents in an action for damages allegedly caused by the gas insulated switchgear cartel (National Grid Electricity)
Matrix Chambers (London)
National Grid – shining Pfleiderer’s light on access to EU leniency documents* A while ago I blogged on an important development in the General Court relating to the ability of victims of cartels and other anti-competitive practices to get their hands on relevant evidence enabling them to prove (...)

The UK Competition Appeal Tribunal narrows the scope of follow-on claims (Emerson Electric / Carbone)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On March 21, 2011, the U.K. Competition Appeal Tribunal (the “CAT”) struck out a follow-on claim for damages brought by Emerson Electric and others (“Emerson”) (...)

The UK High Court strikes out various competition law claims brought in relation to a landlords opposition to the granting of a new business tenancy under the Landlord and Tenant Act 1954 (Humber Oil Terminals Trustee / Associated British Ports)
Office of the Parliamentary Counsel (London)
I. Overview In February 2011, the Chancery Division of the UK High Court (the «Court») struck out various competition law related claims put forward by Humber Oil Terminal Trustee Limited («HOTT», the claimant) to resist Associated British Ports’ («ABP», the defendant) attempts to end HOTT‘s business (...)

The UK Court of Appeal upholds a decision of the Competition Appeals Tribunal denying a claimant follow-on damages (Enron Coal Services / English Welsh & Scottish Railway)
Office of the Parliamentary Counsel (London)
I. Overview In January 2011, the UK Court of Appeal (the “Court”) dismissed an appeal against a ruling of the UK Competition Appeal Tribunal (the “Tribunal”) that Enron Coal Services Ltd (“Enron”) was not entitled to follow on damages against English Welsh and Scottish Railway Ltd (“EWS”). The Court (...)

The UK Court of Appeal upholds Chancellor’s order striking out "representative parts" of a class action claim (Emerald / British Airways)
Ropes & Gray (London)
,
Latham & Watkins (London)
Class Actions in the U.K: Emerald Supplies Limited & Anr. v. British Airways plc* The U.K. Court of Appeal has recently rebuffed an attempt by Plaintiff’s firm, Hausfeld, to bring a collective “opt out” style action using Rule 19.6 of the CPR rules (Emerald Supplied Limited v. British Airways (...)

The UK Parliament revokes land agreements’ exemption from competition law
Morgan Lewis (London)
,
Squire Patton Boggs (London)
The UK Competition Act prohibits agreements that have the object or effect of restricting competition within the UK. Currently, land agreements - such as freehold, leasehold and rental agreements - are exempt from the prohibition, but that is all about to change. With effect from 6 April 2011, (...)

The UK Court of Appeal grants permission to appeal and proceed to a full trial on defence against trademark infringement allegations (Oracle / M-Tech)
Ashurst (Milan)
English Court of Appeal allows M-Tech’s appeal against Oracle* On 28 August 2010, the English Court of Appeal issued a judgment setting aside an order for summary judgment by the High Court of Justice, thus granting M-Tech permission to appeal and proceed to a full trial to defend itself (...)

The UK Competition Authority fines £28.6 million for price-fixing cartel in the bank industry (Royal Bank of Scotland)
University of East Anglia (Norwich)
Reckless Bank Saved by the Taxpayer Will Now Pay Cartel Fine* British bank, Royal Bank of Scotland (RBS), has agreed to pay a fine of £28.6 million for price fixing. RBS employees shared confidential pricing information concerning commercial loans, with their counterparts at Barclays, who (...)

The UK High Court opens the way for companies to pursue private damages actions against employees and directors who are involved in competition law infringements (Safeway Stores)
Shoosmiths (Thames Valley)
Background 1. Between 2002 and 2003, various employees and directors of the Safeway group ("Safeway"), a UK supermarket operator, were involved in the exchange of commercially sensitive retail pricing information with other UK supermarkets and dairy processors. As a consequence of this, (...)

The UK High Court sees a way through public policy objections to the recovery of cartel fines from company executives (Safeway Stores)
Sanoma (Helsinki)
,
Clayton Utz (Sydney)
a. Background Since 2005, the UK’s Office of Fair Trading (“OFT”) has investigated an alleged cartel scheme arranged by certain supermarkets and dairy producers between 2002 and 2003. In 2007, Safeway (now owned by Wm Morrisons Supermarkets plc), one of the supermarket chains implicated in the (...)

The UK Competition Appeal Tribunal clarifies timing rules for follow-on private antitrust actions for damages against cartel participants (BCL / BASF)
Morgan Lewis (London)
,
Wilberforce Chambers (London)
,
Jones Day (London)
On 19 November 2009, the UK Competition Appeal Tribunal (“CAT”) confirmed the test it will apply when assessing whether to extend the time limit by which claimants may commence follow-on actions for damages before the CAT once there has been a finding of a breach of UK or EU competition law. The (...)

The UK High Court refuses to delay a jurisdiction hearing in a cartel case until after an Italian Court of Appeal rules on its part of the same cartel case (Cooper Tire & Rubber / Shell Chemicals)
Simmons & Simmons (London)
As reported in our article Italian Torpedo defused? Tactical moves in private actions for damages, a number of claimants are seeking damages - possibly amounting to some tens of millions of pounds - in the Commercial Court of the High Court in a follow on action to the synthetic rubber cartel. (...)

The UK High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald / British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (London)
,
Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

The UK High Court strikes out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, refusing to stretch the scope of the English civil procedure rules in order to encourage the bringing of private damages actions (Emerald Supplies / British Airways)
European Commission - Legal Service (Brussels)
In striking out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, the English High Court has refused to stretch the scope of the English civil procedure rules in order to facilitate the bringing of such damages actions. Background The (...)

The UK Court of Appeal holds that compensatory damages are adequate and that a restitutionary reward is not available in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
McDermott Will & Emery (Brussels)
Introduction In view of the fact that Community law regulates competition, English law is required to provide remedies for violations to persons injured thereby. Indeed, as the European Court of Justice stated in Courage v. Crehan, "the full effectiveness of Article 81 of the Treaty and, in (...)

The UK Court of Appeal decides on restitutionary damages in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
University of Exeter
By its decision of 14 October 2008, the Court of Appeal dismissed the appeal of the claimant, Devenish Nutrition Ltd, against the decision of Lewison J of 19 October 2007 . As a result, claimants seeking damages in a private action against a cartel, for losses based on a finding of an (...)

The UK High Court rules that restitutionary damages are not an available remedy in antitrust cases, nor will an account of a defendant’s profits be appropriate (Devenish / Sanofi-Aventis)
Pinsent Masons (London)
Background The present case involves "follow on" claims for compensation in respect of damage suffered as a result of the vitamins cartel, which was famously subject to a Commission decision in 2001. The Commission found that notwithstanding the number of producers involved in eight distinct (...)

The UK Court of Appeal upholds the High Court’s finding that following an infringement decision by the EU Commission, the appropriate claim is compensatory and not restitutionary damages (Devenish Nutrition / Sanofi-Aventis)
European Commission - Legal Service (Brussels)
The Court of Appeal of England and Wales has ruled that restitutionary damages are not generally available in antitrust cases and that, in most cases, compensatory damages provide adequate remedies. Background In 2001, the European Commission adopted a decision finding that a number of (...)

The UK High Court finds that following an infringement decision by the EU Commission, the appropriate claim is for compensatory and not exemplary or restitutionary damages (Devenish Nutrition / Sanofi-Aventis)
European Commission - Legal Service (Brussels)
The High Court’s judgment is the first time that an English court has to consider what type of damages can be obtained in claims following from an infringement decision by the European Commission in competition cases. According to the judgment, a claimant is only entitled to compensatory damages (...)

The UK High Court makes a group litigation order in a competition case in the automobile sector (Prentice / DaimlerChrysler UK)
Reed Smith (London)
Gerald Barling is a justice of the High Court and president of the Competition Appeal Tribunal (CAT). He wrote an article “Collective Redress for Breach of Competition Law – A Case for Reform” published in Competition Law Journal Volume 10 Issue 1, 2011. In it he deals with Group Litigation Orders (...)

The UK Competition Appeal Tribunal denies permission to bring follow-on damages actions while appeals to the EU General Court are pending (Emerson Electric / Morgan Crucible)
Pinsent Masons (London)
Background 1. On 3 December 2003, the European Commission (the “Commission”) adopted a decision finding that various undertakings had participated in a series of agreements and concerted practices within the meaning of Article 81 EC Treaty ( “Article 81”) in the market for carbon and (...)

Unilateral Practices

The UK High Court throws out a private claim for damages based on abuse of dominance in the online mapping sector (Streetmap / Google)
Constantine Cannon (London)
,
Constantine Cannon (London)
Google wins court battle against StreetMap in the UK*Google won a big victory Friday in the High Court of England and Wales, which ruled that Google did not abuse its dominant position to the detriment of the now-defunct UK online mapping provider, Streetmap.The Court’s ruling against (...)

The UK Court of Appeal refuses interim injunction against the alleged refusal to deal as the claimant failed to identify any market on which the defendant could conceivably be dominant (Chemistree Homecare / Abbvie)
St John’s Chambers (Bristol)
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The UK High Court grants interim injunctions to a bank for continuing to provide financial services despite threats of irreparable harm to claimants (Dahabshiil Transfer Services / Barclays Bank)
St John’s Chambers (Bristol)
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The UK High Court refuses interim injunction against the refusal to grant access to the airport coach terminal even though an arguable case of abuse made out as damages would be an adequate remedy if abuse established at trial (Arriva The Shires / London Luton Airport Operations)
St John’s Chambers (Bristol)
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The UK Competition Appeal Tribunal awards the highest damages ever in a case involving an abuse of dominant position in the water sector (Albion Water)
One Essex Court (London)
There are approximately 45 private actions for damages pending in the United Kingdom Courts. Some are stayed pending final decisions of the Commission and the European Courts; some are at the disclosure stage; some are setting up “confidentiality rings” prior to disclosure; and others are lost in (...)

The UK Competition Appeal Tribunal awards damages in a follow-on claim arising from the abuse of dominance on the market for transportation and partial treatment of water (Albion Water / Dŵr Cymru Cyfyngedig)
Blackstone Chambers (London)
Albion v Dwr Cymru: Incompetence and counterfactuals* The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in (...)

The UK Competition Appeal Tribunal dismisses the claim for exemplary damages against a water management company (Albion Water / Dŵr Cymru Cyfyngedig)
Preiskel (London)
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The UK Competition Appeal Tribunal imposes exemplary damages in a predatory pricing case in the bus services market (2 Travel / Cardiff Bus)
Sidley Austin (London)
2 Travel v Cardiff Bus – Making Commitments in Dominance Cases Less Attractive?* In early July 2012, the UK’s specialist competition court, the Competition Appeal Tribunal (“CAT”), adopted a judgment (“Judgment”) in which it awarded a claimant (2 Travel) exemplary damages in relation to predatory (...)

The UK Competition Appeal Tribunal awards exemplary damages for breach of competition law (Cardiff Bus)
Herbert Smith Freehills (London)
Summary The UK Competition Appeal Tribunal (CAT) has awarded damages to 2 Travel Group plc (2 Travel) for breach of the Competition Act 1998 Chapter II prohibition on abuse of dominance, ordering Cardiff City Transport Services Limited (Cardiff Bus) to pay compensatory damages for loss of (...)

The UK High Court grants an interim injunction against the use by private hire vehicles of bus lanes marked for taxis: insufficient connection with EU law (Transport for London)
Matrix Chambers (London)
Taxi wars in London – does EU law have a role to play?* On Thursday of last week the High Court granted Transport for London (TfL) an interim injunction relating to the high-profile raising of the stakes in its battle with Addison Lee (AL), the largest “private hire” (ie minicab) operator (PHO) (...)

The UK Department of Health seeks antitrust damages after abuse of dominant position in the pharmaceutical sector (Reckitt Benckiser)
Van Bael & Bellis (Brussels)
According to press reports, the UK Department of Health, together with 10 health authorities and 144 primary care trusts, has launched an action for damages against Reckitt Benckiser in the High Court. This follows the OFT’s decision to fine Reckitt Benckiser £ 10.2 million for abusing its (...)

The UK High Court declines to issue a stay against a damage claim brought by tire manufacturers seeking redress from members of an alleged Butadiene Rubber and Emulsion Styrene Butadiene Rubber cartel (Cooper Tire & Rubber Company / Shell Chemicals)
European Commission - Legal Service (Brussels)
The High Court of England and Wales has declined to issue a stay against a damage claim brought by tyre manufactures seeking redress from members of an alleged Butadiene Rubber and Emulsion Styrene Butadiene Rubber cartel. Background The damage claim brought by the tyre manufacturers follows (...)

The UK Competition Appeal Tribunal rejects rival newspaper publishers complaint of alleged abusive anti-competitive practices (Brannigan)
London Borough of Barking and Dagenham
On July 26th 2007 the Competition Appeal Tribunal (“CAT”) unanimously dismissed an appeal brought by Mr. Brannigan, who challenged the OFT’s refusal to investigate the complaint under the Competition Act 1998. Mr. Brannigan was a proprietor of two local newspapers in East Sussex. He alleged that (...)

The UK High Court rejects a claim of predatory behaviour on a local bus transport services market (Chester City Transport / Arriva)
King’s College (London)
Introduction and Background to the Claim In Chester City Council and Chester City Transport Limited v. Arriva Plc, Arriva Cymru Limited and Arriva North West Limited [2007] EWHC 1373 (Ch), the High Court of Justice had to consider a claim brought by Chester City Council (‘the Council’) and (...)

The UK High Court rules that, although Art. 82 EC does not contain a declaration of nullity equivalent to Art. 81 EC, the effects are the same (English Welsh & Scottish Railway / E.ON)
King’s College (London)
This note considers antitrust private enforcement in the UK; it should be read together with other cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) and two follow-on damages’ claims which have been lodged before the specialist Competition Appeal Tribunal (...)

The UK High Court rules on interim injunction for an alleged unlawful refusal to supply in the pharmaceutical sector (AAH Pharmaceuticals / Pfizer-UniChem)
King’s College (London)
This note considers one of the two cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) (See also A. Jones, The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces/British Horseracing Board), (...)

The UK Court of Appeal overturns the finding by the High Court of an abuse of dominance in a litigation between private parties (Attheraces / British Horseracing Board)
White & Case (London)
,
Reed Smith (London)
Background A recent decision of the Court of Appeal has reversed the first ever High Court finding of an Article 82 infringement in litigation between private parties. Attheraces v British Horseracing Board was an appeal from the High Court decision of Justice Etherton. The Judge who had held (...)

The UK Competition Appeal Tribunal grants interim damages of £2 million in a case of abusive drugs price setting (Healthcare at Home / Genzyme)
Hogan Lovells (London)
Background GenzymeLimited ("Genzyme”) is the manufacturer of Ceredase and Cerezyme, drugs used in the treatment of Gaucher disease. Genzyme also provided home care services to administer its drugs. The home care services were initially subcontracted, firstly to Caremark and then to Healthcare (...)

The UK High Court gives important guidelines as to the standard of proof for claiming damages in competition cases (Arkin)
Reed Smith (London)
Arkin v. Borchard Lines Ltd., [2003] All E.R. (D) 173, [2003] EWHC 687 (Comm) (10 April 2003), is important as one of the first damages claims brought in a United Kingdom court for breach of Articles 81 and 82 of the Rome Treaty involving private enforcement of competition law. It was decided (...)

The UK High Court deals with the issue of whether a party could, in national proceedings, rely on conclusions of facts and issues reached by the Commission, the CFI and the EU Court of Justice in related proceedings (Iberia UK / Bpb Industries / British Gypsum)
DG COMP (Brussels)
"The English High Court’s Judgment In Iberia U.K. Ltd V (1) Bpb Industries Plc And (2) British Gypsum Ltd"* The facts The defendants (BPB Industries Plc and British Gypsum Ltd) are major suppliers of plasterboard to the UK and for the purposes of Article 86, occupy a dominant position in that (...)

Procedures

The UK High Court issues guidance on the balancing of conflicting interest in a case involving the protection of a big tech’s confidential and technical information concerning its search algorithms (Foundem / Google)
Hausfeld (London)
,
Hausfeld (London)
,
Hausfeld (London)
Introduction There is an emerging trend in competition damages cases in England for the majority of documents to be disclosed into so-called “confidentiality rings.” These restrictive confidentiality procedures can result, in certain instances, in the parties themselves being precluded from (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision in favour of consumers in collective proceedings against a credit card company (Merricks / Mastercard)
Allegro Consulting (Brussels)
Walter Merricks v. Mastercard, Paving the Way for Economic Analysis in Class Actions* The England and Wales Court of Appeal has overturned the Decision of the United Kingdom Competition Appeals Tribunal (CAT) in the collective proceedings Walter Merricks v MasterCard, where final consumers are (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision refusing a £14 billion class action against a credit card company (Merricks / Mastercard)
Hausfeld (Washington)
,
Hausfeld (New York)
Introduction Few would argue with the proposition that antitrust indirect purchaser class actions in the U.S. raise more difficult questions of commonality, impact, and manageability than direct purchaser class actions, even though there may have been harm sustained at both levels. Accordingly, (...)

The UK Court of Appeal confirms that the first claim under the UK’s flagship "opt-out" regime can proceed (Merricks / Mastercard)
Simmons & Simmons (London)
The action is based on the EU Commission’s finding that MasterCard’s EEA multilateral interchange fees (MIFs) breached Article 101(1) TFEU (see here for further details). That finding was upheld by the European Court of Justice (on appeal by MasterCard) on 11 September 2014 (see our further (...)

The UK Court of Appeal clarifies the collective proceeding regime in a private action against a credit card company (Merricks / MasterCard)
Blackstone Chambers (London)
Merricks v MasterCard: Collective Actions Reinvigorated* The Court of Appeal today gave its much-anticipated judgment in the application to bring collective proceedings against MasterCard: see Merricks v MasterCard Incorporated and others [2019] EWCA Civ 674. It is a major victory for the (...)

The UK Court of Appeal overturns a decision refusing a £14 billion class action against a financial services company (Merricks / MasterCard)
Hausfeld (London)
,
Hausfeld (London)
On 16 April 2019, the UK Court of Appeal handed down what is undoubtedly the most significant ruling to date for the UK’s young collective actions regime. The Judgment in Merricks v Mastercard overturned the Competition Appeal Tribunal’s prior ruling refusing certification of Walter Merricks’ £14 (...)

The UK Court of Appeal grants the appeal by over 46 million consumers against a financial company in relation to alleged overcharging of interbank fees (Merricks / MasterCard)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (London)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. A recent Court of Appeal decision has reignited the prospects of a £14 billion class action against Mastercard. In a much-anticipated ruling, the court has granted (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision in landmark collective action (Merricks / Mastercard)
Court of First Instance of Namur
On 16 April 2019, the UK Court of Appeal ruled that the Competition Appeal Tribunal (“CAT”) had incorrectly refused to certify a major collective action brought against Mastercard. The collective action seeks approximately GBP 14 billion in damages on behalf of an estimated 46.2 million customers (...)

The High Court of England and Wales provides guidance determining the applicable law in competition actions (Deutsche Bahn / Mastercard)
Blackstone Chambers (London)
Applicable law in competition infringements: Deutsche* The recent judgment of Barling J in Deutsche Bahn AG v MasterCard offers important guidance on determining applicable law in competition actions. Practitioners dealing with competition infringements which stretch back prior to the entry (...)

The UK High Court renders a judgment significantly restricting the temporal scope of the claims in four air cargo cartel damages actions (Emerald Supplies)
Shearman & Sterling (Brussels)
,
Reed Smith (Brussels)
On 4 October 2017, the High Court gave a judgment on a preliminary issue significantly restricting the temporal scope of the claimants’ claims in four air cargo cartel damages actions. This judgment is the last in a series of adverse judgments for the claimants in these proceedings. Background (...)

The UK Parliament implements the EU antitrust damages directive
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
The Damages Directive seeks to promote private enforcement of EU competition law before national courts across the European Union (the “EU”). The UK Regulations implementing the Directive were laid before Parliament on 20 December 2016 but will not come into force until after they have (...)

The UK High Court allows a plaintiff to amend its claim and introduces a plea on the counterfactual which were not originally included in the complaint to the EU Commission (Deutsche Bahn / MasterCard)
Blackstone Chambers (London)
Illegal counterfactuals: bringing in new claims by the backdoor?*It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful (...)

The UK High Court decides that a standalone claim issued in the High Court could be transferred to the Competition Appeal Tribunal (Sainsbury Supermarkets / MasterCard)
Blackstone Chambers (London)
Standalone claims in the CAT: bypassing the transitional rules* We have written before about the problems inherent in the transitional provisions of the new Consumer Rights Act 2015 (see Tom de la Mare QC’s blog here). A recent decision from Mr Justice Barling in the Mastercard litigation (...)

The UK Parliament adopts the Consumer Rights Act to boost private enforcement of competition law
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
Introduction The Consumer Rights Act 2015 (the Act) will enter into force on October 1, 2015. It contains some significant reforms which aim to boost private enforcement of competition law in England and Wales and will increase the exposure of companies found to have infringed competition law (...)

The UK Parliament introduces reforms to facilitate private actions in antitrust cases
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
UK Introduces Reforms to Facilitate Private Actions in Antitrust Cases From October 1, 2015, new rules will make it easier for claimants to pursue antitrust damages claims in the UK. These reforms, introduced under the Consumer Rights Act 2015 (the “Act”), are the final piece of the Government’s (...)

The UK Secretary of State issues regulations and guidance governing the approval of voluntary redress schemes to compensate persons injured by antitrust infringements
Simmons & Simmons (London)
,
Simmons & Simmons (London)
On 05 August 2015, the UK Secretary of State issued the Competition Act 1998 (Redress Scheme) Regulations 2015 governing the approval of voluntary redress schemes under the Act. One of the radical elements of the UK’s package of 2015 collective redress measures takes shape as regulations and (...)

The UK Court of Appeal confirms that the six years limitation period standard in tort or breach of statutory duty cases applies to competition cases (Arcadia / Visa)
Simmons & Simmons (London)
English Court of Appeal limits retailers’ Visa MIF claim to standard six years, dismissing arguments that concealment meant that time had not yet begun to run. On 05 August 2015, three English Court of Appeal judges confirmed in Arcadia Group Brands Limited and others v Visa [2015] EWCA Civ 883 (...)

The UK Court of Appeal takes a strict approach to time limitation (Arcadia / Visa)
Blackstone Chambers (London)
Arcadia v Visa revisited: the Court of Appeal takes a strict approach to limitation* Competition damages claims can be notoriously complex. According to the Court of Appeal, however, that is no reason to free them from the ordinary English rules of limitation – however strict those rules might (...)

The UK High Court renders a judgment regarding a cartel damages settlement exploring what “collateral defence” means (W.H. Newson Holding / IMI)
Blackstone Chambers (London)
Settling cartel damages actions: contribution defendants beware* Anyone who has ever tried to settle a cartel damages case will know that the law relating to settlements is fraught with difficulty. The recent judgment of the High Court in IMI Plc v Delta Ltd [2015] EWHC 1676 (Ch) highlights (...)

The UK Supreme Court decides on the recovery of penalties from directors and employees, setting the scene for a fresh challenge to the Safeway Stores decision (Jetivia / Bilta)
Blackstone Chambers (London)
Recovering penalties from directors and employees: Safeway revisited* Can a company which has been fined for anticompetitive conduct seek to recover the fine from the directors and employees responsible by suing them for damages? The question is moot in light of last week’s Supreme Court (...)

The UK Parliament provides powers for the Competition Authority to approve voluntary redress schemes
University of East Anglia (Norwich)
Why harmed consumers may be more satisfied in the future – the CMA’s new redress scheme* In an earlier blog post I wrote about the new opt-out collective action regime introduced by the Consumer Rights Act 2015. This is not the only measure that is to help consumers and other injured parties to (...)

The UK Parliament allows opt-out antitrust class actions with strong safeguards
University of East Anglia (Norwich)
Collective actions after the Consumer Rights Act 2015* On 30 March 2015 the Consumer Rights Act 2015 received Royal assent, introducing opt-out collective actions into UK competition law enforcement. The UK system of private enforcement has long being criticised for being ineffective in (...)

The UK High Court of Justice holds that the trigger for the running of time for limitation purposes in a competition claim is not the discovery of every potentially relevant fact in the broadest sense (Arcadia / Visa)
Blackstone Chambers (London)
“It’s too late baby, now it’s too late”: limitation, competition claims and knowledge* How much knowledge does a potential claimant need before time begins to run against a competition claim against a party alleged to have breached competition law? This was the key question addressed by Mr Justice (...)

The UK Supreme Court rules in relation to a follow-on claim for civil damages that any appeal against the finding of infringement by any other addressee is irrelevant to a non-appealing addressee (Deutsche Bahn / Morgan Advanced Materials)
King’s College (London)
Deutsche Bahn AG and others (Respondents) v Morgan Advanced Materials Plc (formerly Morgan Crucible Co Plc) (Appellant)* The Facts Morgan Advanced Materials Plc (‘Morgan’) participated in an illegal cartel in the sector of electrical and mechanical carbon and graphite products. Morgan, as (...)

The UK Supreme Court rules that non-appealing parties to a cartel, the existence of which has been negatived on appeal, remain liable to civil damages actions (Deutsche Bahn / Morgan Advanced Materials)
Blackstone Chambers (London)
Non-Appealing Cartelists Beware* Tucked away at the back of last week’s Supreme Court decision on time-limits for follow-on claims is a very important development for private competition actions. The context is section 47A of the Competition Act 1998, a provision which has generated an (...)

The UK House of Commons amends the proposed bill on consumer rights which brings forward reform of the civil litigation procedures to facilitate follow-on damages actions in competition cases
St John’s Chambers (Bristol)
Changes to the private litigation regime in the UK: are more collective damages actions on the way?* Private damages litigation is an important complement to public enforcement of UK and EU competition law by the European Commission and national competition authorities (“NCAs”), such as the UK’s (...)

The UK Parliament adopts a proposal for an opt-out regime from contingency fees in collective actions
Quinn Emanuel Urquhart & Sullivan (London)
,
IMF Bentham (Sydney)
Sharing Risk in Collective Actions* With legislation to introduce collective actions currently making its way through Parliament (see our previous blog here), we are pleased to welcome a guest blog from Elaine Whiteford of King & Wood Mallesons LLP and Oliver Gayner of Burford Capital (...)

The UK Court of Appeal rules that a cartelist cannot avoid the jurisdiction of a national court on the basis that the victim of the cartel had purchased the relevant product or service via a subsidiary or other third party (Deutsche Bahn / Morgan Advanced Materials)
Blackstone Chambers (London)
The Court of Appeal on Cartels and Conflicts* The Court of Appeal handed down two important decisions last week on the application of conflict of law principles to cartel follow-on damages claims: Deutsche Bahn AG & Ors v Morgan Advanced Materials plc & Ors [2013] EWCA Civ 1484 and (...)

The UK Court of Appeal rules that the making of an order for further information against a French litigant is in the English Court’s discretion, and is not precluded by French Law No. 68-678 or the Council Regulation No 1206/2001 (Secretary of State for Health / Servier Laboratories)
Blackstone Chambers (London)
Curtains for the French Blocking Statute?* Never the most celebrated actor on the stage of English litigation, the French Blocking Statute nonetheless has its fans, particularly among competition lawyers. The recent decision of the Court of Appeal in Secretary of State for Health v Servier (...)

The UK Court of Appeal rules that the making of a disclosure order against a French litigant is in the English Court’s discretion, and is not precluded by French Law No. 68-678 or the Council Regulation No 1206/2001 (National Grid Electricity Transmission / ABB)
Blackstone Chambers (London)
Curtains for the French Blocking Statute?* Never the most celebrated actor on the stage of English litigation, the French Blocking Statute nonetheless has its fans, particularly among competition lawyers. The recent decision of the Court of Appeal in Secretary of State for Health v Servier (...)

The UK High Court opts for targeted disclosure in private stand-alone claim against web search engine provider (Foundem / Google)
Manchester University
Background On 30 November 2010, the EU Commission (the “Commission”) announced that it had opened an investigation into allegations that Google has abused its dominant position, contrary to Article 102 TFEU, following multiple complaints. On 21 May 2012, the Commission published its preliminary (...)

The UK High Court dismisses defendants’ stay application in long term interchange fee litigation (Morrison Supermarkets / MasterCard)
Manchester University
On 4 May 2013, Mr Justice Field handed in a judgment in WM Morrison Supermarkets, dismissing an application by a number of the defendants within the MasterCard group for an immediate stay of the proceedings until a related appeal which is currently pending before the Court of Justice of the (...)

The UK High Court refuses stay of proceedings despite ongoing EU appeal in an interchange fees case (Morrison Supermarkets / MasterCard)
University of Leeds
The High Court (Queen’s Bench Division) has refused to grant a stay of proceedings against Mastercard defendants in WM Morrison Supermarkets plc and others v MasterCard Incorporated and others [2013] EWHC 1071 (Comm). In this case, Morrisons and other major high street retailers claimed damages (...)

The UK Government opts into class actions
White & Case (London)
,
White & Case (London)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Government proposals in brief The Government’s proposals are contained in its response to the consultation on options for reform of private competition actions in (...)

The UK Supreme Court grants permission to appeal against a decision concerning the time limits for bringing follow-on claims before the Competition Appeal Tribunal (Deutsche Bahn / Morgan Crucible)
Hausfeld (London)
CAT limitation rules: the saga continues* On 21st December 2012, the Supreme Court granted permission to Morgan Crucible to appeal against the judgment of the Court of Appeal, delivered in July, concerning the time limits for bringing follow-on claims in the Competition Appeal Tribunal (CAT). (...)

The UK High Court refuses to strike out the conspiracy claim relying upon a cartel infringement on the market for copper plumbing tubes (WH Newson / IMI)
Blackstone Chambers (London)
Conspiracy in the CAT: the scope of section 47A* What kinds of “follow-on” claims may be brought in the CAT? ‘[A]ny claim for damages, or any other claim for a sum of money which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil (...)

The UK Supreme Court clarifies limitation period for follow-on damages actions in the Competition Appeal Tribunal (BCL / BASF)
DLA Piper (London)
The Supreme Court, in its decision in BCL Old Co v BASF, has clarified the limitation period for bringing follow-on action claims for damages in the Competition Appeal Tribunal (the “CAT”). The Supreme Court upheld the Court of Appeal’s earlier ruling that: An action for follow-on damages in the (...)

The UK Supreme Court rules on the matter of time limits as regards follow-on claims arising from the vitamin cartel (BCL / BASF)
Blackstone Chambers (London)
BCL No.2: The Supreme Court addresses time limits in follow-on claims* The White Paper which first proposed follow-on damages claims promised a “swift” and “streamlined” procedure. The idea was that when a regulator had made an infringement finding, there would be a simple way for victims to claim (...)

The UK Competition Authority welcomes the proposals for reforms in private enforcement of competition law advanced by the Government
Blackstone Chambers (London)
OFT welcomes DBIS proposals for reforms in private enforcement of competition law* Many readers will now be familiar with the proposals for the reform of private competition claims launched by the Department for Business Innovation and Skills (‘DBIS’) in April 2012 (‘Private actions in (...)

The UK Court of Appeal allows the claimants to proceed with an action for damages under Section 47A in consideration of price fixing of electrical and mechanical carbon and graphite products (Deutsche Bahn / Morgan Crucible)
London School of Economics and Political Science
CAT unlimited: the Deutsche Bahn decision* Where the Commission has issued a decision finding several addressees liable for the same infringement, amongst the more important tactical questions for a claimant in the UK are: where to sue the addressees and when? The decision of the Court of (...)

The UK Government publishes a consultation on private actions in competition law proposing a rebuttable presumption of 20% price rise for damages against proven cartels
University of East Anglia (Norwich)
This article has been nominated for the 2013 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. A Rebuttable Presumption of 20% Price Rise for Damages against Proven Cartels?* The UK Government yesterday published a consultation on private actions in (...)

The UK Government consults on changes to assist private litigants in seeking redress for breach of antitrust law
Covington & Burling (London)
The UK Government is consulting on changes to assist private litigants in seeking redress for breach of antitrust law. Most radically, the government has proposed introducing an opt-out collective redress mechanism. This change alone could significantly increase the volume and impact of (...)

The UK Government is consulting on reforms aimed at making it easier to bring private actions for antitrust damages
University of East Anglia (Norwich)
Article published on Centre for Competition Policy blog. An Unpopular Solution to the Private Enforcement Problem* The UK’s Department for Business is currently consulting on a package of reforms aimed at making it easier to bring private actions for damages against firms engaged in (...)

The UK Government launches consultation implementing alternative remedies to reform private actions in competition law
University of East Anglia (Norwich)
Article published on Centre for Competition Policy blog. Breaking the deadlock? Private antitrust enforcement in the UK* Private antitrust enforcement in the UK has never got off the ground, even after the Competition Act of 1998 introduced enforceable antitrust provisions. Plaintiffs have (...)

The UK High Court grants disclosure of documents obtained by access to the EU Commission’s file in a follow-on damages action in the switchgear cartel (GIS)
Modo (Brussels)
In its judgment of 4 July 2011 the English High Court of Justice granted the application for disclosure of documents obtained by access to the Commission’s file in a follow-on damages action for breach of Article 101 TFEU in the Gas Insulated Switchgear (“GIS”) cartel. However, considering the (...)

The UK Competition Authority gives guidance for businesses and directors on competition law compliance
Allen & Overy (London)
,
Allen & Overy (London)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The OFT has published a package of materials aimed at helping companies establish a culture of compliance with UK competition law, and considering the specific (...)

The UK Government consults on wide-ranging reforms to the competition regime, including a proposal to merge the Office of Fair Trading and the Competition Authority into a single competition and markets authority
Wiggin (London)
I. Background On 14 October 2010, the Department for Business, Innovation and Skills (“BIS”) announced the intention to bring together the Competition Commission (“CC”) and the competition functions of the Office of Fair Trading (“OFT”) to form a single Competition and Markets Authority (“CMA”). BIS (...)

The UK Court of Appeal rejects representative element of private damages action (Emerald Supplies / British Airways)
DLA Piper (London)
The Court of Appeal in England issued a judgment denying the appellants the ability to bring a representative action on behalf of a further 178 or more possible claimants seeking to obtain damages against British Airways plc (BA) for its alleged involvement in the air cargo cartel. The first (...)

The UK Court of Appeal holds its judgment on representative action in a claim against air cargo cartel (Emerald Supplies / British Airways)
Shoosmiths (Thames Valley)
1. Summary 1.1. On 18 November 2010, the English Court of Appeal dismissed an appeal by Emerald Supplies Ltd («Emerald«) and Southern Glass House Produce Limited against a High Court judgment that the representative element of their claim against British Airways («BA«) should be struck out as it (...)

The UK Court of Appeal rules that English court procedures do not allow representative actions on behalf of a class of direct and indirect purchasers of the air-freight cartel (Emerald Supplies / British Airways)
Volvo (Brussels)
On 18 November 2010, the English Court of Appeal ruled in favour of BritishAirways Plc. in an appeal brought by Emerald Supplies Ltd. and Southern Glass House Produce Ltd. The appeal was launched against a High Court (Chancery Division) decision to strike out the representative element of an (...)

The UK Court of Appeal confirms strike-out of the representative element in cartel damages claim (Emerald Supplies / British Airways)
University of Southampton
Court striking out representative proceeding for damages against British Airways (BA). This follows a decision earlier in the month by the European Commission that BA had engaged in price-fixing of fuel and security surcharges between 1999 and 2006 in breach of Article 101 of the Treaty on the (...)

The UK Court of Appeal rejects attempted ’opt-out’ class action (Emerald Supplies / British Airways)
Herbert Smith Freehills (London)
The English Court of Appeal has rejected a creative attempt to use existing English civil procedure rules to craft an ‘opt-out’ style class-action. The matter concerned an action for damages arising from the international air freight cartel, in which the European Commission has recently fined (...)

The UK Court of Appeal dismisses appeal against High Court ruling in cartel damages claim (Cooper Tire and Rubber / Dow Deutschland)
Shoosmiths (Thames Valley)
1. Summary 1.1. On 23 July 2010, the Court of Appeal dismissed an appeal against a judgement by the High Court where it declined to suspend proceedings based on a European Commission (the "Commission") cartel decision, where related proceedings based on the same decision were already taking (...)

The UK Competition Appeal Tribunal denies the claimant damages in the first English follow-on damages case to reach trial (Enron Coal Services / English Welsh and Scottish Railway)
Emirates NBD (Dubai)
Overview In December 2009, the Competition Appeal Tribunal (“Tribunal”) dismissed the follow on damages claim brought by Enron Coal Services Limited (“Enron”) against English Welsh and Scottish Railway Limited (“EWS”). The Tribunal held that Enron had failed to make its case against the Defendant on (...)

The UK Court of Appeal rules that damages cannot be recovered through the medium of Sec. 47A simply by identifying findings of fact by a regulator that could have amounted to a competition infringement, i.e., claimant’s right of action exists only if the regulator has actually decided that such conduct would constitute an infringement of competition provision (EW&S Railways / Enron)
Sonam Mathur (New Delhi)
In 2006, the Office of Rail Regulation (ORR) had concluded that English Welsh & Scottish Railway Limited (EW&S) infringed the prohibition contained in the Chapter II prohibition of the Competition Act 1998 and Article 82, EC Treaty . EW&S infringed the said provisions as it engaged (...)

The UK Court of Appeal clarifies the application of the time limits relating to damages actions based on competition law violation (BCL / BASF)
Van Bael & Bellis (Brussels)
In a judgment given on 22 May 2009, the Court of Appeal clarified the application of the time limits relating to damages actions brought under section 47A of the Competition Act. Section 47A allows parties that have suffered damages, as a result of a competition law violation to claim (...)

The UK Court of Appeal overturns the Competition Appeal Tribunal’s decision in a pro-defendant judgment on follow-on damages actions (BCL / BASF)
White & Case (London)
,
Emirates NBD (Dubai)
On 22 May 2009, the Court of Appeal handed down its judgment in BCL v BASF , ruling that the Competition Appeal Tribunal (“CAT”), had erred in allowing what was, in the opinion of the Court of Appeal, a time-barred damages claim to proceed. The judgment will provide welcome legal certainty to (...)

The UK High Court allows a defendant’s application to strike out the representative element of the claim in an action seeking relief from damages (Emerald Supplies / British Airways)
King’s College (London)
Emerald Supplies Ltd v British Airways Plc considered the availability of representative proceedings under the English and Welsh Civil Procedure Rules (’CPR’) . Before setting out the facts of the case and the decision of the High Court, which is currently being appealed, it may be useful briefly (...)

The UK High Court dismisses novel class action claim for alleged antitrust damages arising out of agreements or concerted practices relating to the supply of air freight services (Emerald Supplies / British Airways)
Linklaters (London)
,
A&L Goodbody (Dublin)
The High Court today dealt a serious blow to claimants seeking to bring damages claims on a representative basis (which are, in substance, akin to "opt-out" class actions) by confirming that existing rules cannot be "stretched" to allow such claims in the English courts. In September 2008 two (...)

The UK Competition Appeal Tribunal refuses permission to initiate follow-on claims for damages while an appeal is pending in the public enforcement case (Emerson Electric / Morgan Crucible)
University of East Anglia (Norwich)
Background The claimants (Emerson Electric Co, Valeo S.A., Robert Bosch GmbH, Visteon Corporation and Rockwell Automation) seek damages for the violation of Article 81(1) EC from the defendant (Morgan Crucible Company Plc) and the proposed defendants (Schunk GmbH, Schunk Kohlenstofftechnik (...)

The UK Competition Authority recommends far-reaching changes to private enforcement of competition law
Linklaters (London)
,
Linklaters (London)
,
Linklaters (London)
On 26 November 2007, the OFT published its recommendations to the Government on measures to improve the effectiveness of redress for consumers and businesses for breaches of competition law. The recommendations followed the OFT’s informal consultation on private actions in competition law, (...)

The UK High Court of Justice rejects a claim for exemplary damages following an infringement decision by the EU Commission (Devenish / Sanofi-Aventis)
TLT Solicitors
Introduction and Background to the claim In November 2001 the European Commission adopted a decision that held that a number of vitamin manufacturers had entered into worldwide price-fixing agreements (cartels) in respect of various vitamins in breach of Article 81 EC Treaty and therefore (...)

The UK High Court rules that exemplary damages are not available to claimants bringing actions against cartelists that have already been fined by the EU Commission, even if their fine has been commuted due to an immunity or leniency application (Devenish Nutrition / Sanofi-Aventis)
Freshfields Bruckhaus Deringer (London)
Exemplary damages are not available to claimants bringing actions against cartelists that have already been fined by the European Commission, even if their fine has been commuted due to an immunity or leniency application. Similarly, restitutionary relief or an account of profits are most (...)

The UK Competition Appeal Tribunal rules on two follow-on damages’ claims (Emerson Electric / Morgan Crucible)
King’s College (London)
Introduction This note considers antitrust private enforcement in the UK ; it should be read together with two other recent cases (A. Jones, The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces/British Horseracing (...)

The UK Competition Appeal Tribunal clarifies limitation period for follow-on claims lodged with the Tribunal (Emerson Electric / Morgan Crucible)
University of East Anglia (Norwich)
I. Background On 09 February 2007 a claim for damages under section 47A Competition Act (follow-on action) was lodged with the Competition Appeal Tribunal (hereafter CAT). The defendant Morgan Crucible Company plc (“Morgan Crucible”) and the proposed defendants Schunk GmbH and Schunk (...)

The UK Competition Authority publishes discussion paper on private enforcement
Monckton Chambers (London)
,
Linklaters (London)
,
Linklaters (London)
The OFT have published (on 18 April 2007) a Discussion Paper entitled "Private actions in competition law: effective redress for consumers and business", launching an informal consultation process on how to encourage private actions by consumers and businesses for breaches of competition law. (...)

The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces / British Horseracing Board)
King’s College (London)
Introduction This note considers one of the two cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) (See also A. Jones, The UK Hight Court rules on interim unjunction for an alleged unlawful refusal to supply in the pharmaceutical sector (AAH (...)

The UK Competition Appeal Tribunal grants interim relief in ’follow on’ damages claim (Healthcare at Home / Genzyme)
King’s College (London)
The Competition Appeal Tribunal’s (the “CAT”) judgment in Healthcare at Home Ltd v Genzyme Limited, 15 November 2006, concerned a claim for “interim payment” in proceedings brought by Healthcare at Home (the “claimant”) against Genzyme Limited (“Genzyme”). Under section 47A of the UK Competition Act (...)

The UK Competition Appeal Tribunal awards interim damages in an abuse of dominant position case on the drugs market (Healthcare at Home / Genzyme)
Sanoma (Helsinki)
Introduction On 15 November 2006, the UK Competition Appeal Tribunal (CAT) awarded an interim payment of £ 2 millions to Healthcare at Home Limited (HH) in respect of its damages claim against Genzyme Limited (Genzyme) for infringement of the Chapter II prohibition (abuse of a dominant (...)

The UK Parliament puts in doubt the extent to which findings in previous decisions of the EU Commission can be relied on (Crehan)
Ashurst (Brussels)
,
Quinn Emanuel Urquhart & Sullivan (London)
,
Freshfields Bruckhaus Deringer (London)
Introduction The House of Lords recently handed down its judgment in Inntrepreneur Pub Company and others v Crehan a judgment dealing with the extent to which a national court is bound by previous decisions of the European Commission. The case has important implications for businesses (...)

The UK Competition Appeals Tribunal receives the first claim for damages based on abuse of dominant position (Healthcare at Home / Genzyme)
White & Case (London)
,
White & Case (London)
Healthcare at Home Limited (“HH”) has brought a claim for damages before the Competition Appeals Tribunal (“CAT”) against Genzyme Limited (“GL”) pursuant to section 47A of the Competition Act 1998. This is the third claim for damages to have been brought before the CAT pursuant to section 47A of the (...)

The UK High Court holds that Article 101 and 102 TFEU claims are arbitrable (Eurotunnel)
White & Case (London)
,
Pinsent Masons (London)
Background In 1994, Eurotunnel (a joint venture operated by the eighth and ninth defendants, Channel Tunnel Group Limited and France Manche SA, respectively) entered into a contractual relationship with Transferry SPA and ET Plus Lux SA (the sixth and seventh claimants) whereby the claimants (...)

The UK Competition Appeal Tribunal decides for the first time on claims for damages breaching Article 101 TFEU under national competition provision (Vitamins)
White & Case (London)
,
Ince (Paris)
Background These two cases, heard concurrently before the UK’s Competition Appeal Tribunal (“CAT” or “Tribunal”) were the first (and so far the only) claims for damages to be brought pursuant to Section 47A of the Competition Act 1998 (the “Act”). Section 47A of the Act is a significant legislative (...)

The UK High Court emphasises the need for claimants to ensure that they have robust evidence of an alleged breach to avoid being thrown out on summary judgment (Wireless / RAJAR)
White & Case (London)
Mr. Justice Lloyd’s recent judgment in the Wireless / RAJAR case (handed down on 16 December 2004), demonstrates certain of the procedural and evidential difficulties faced by private litigants seeking damages for alleged breaches of competition law before the English Courts. The Claimant, (...)

The UK Court of Appeal applies Article 101.1 TFEU and awards damages for breach of EU law (Crehan)
Sheppard, Mullin, Richter & Hampton (Brussels)
,
Law Office of Tim Seidenspinner
According to the Court of appeal judgement dated 21 May 2004, national court is obliged under its duty of sincere cooperation to give a great deal of deference to the Commission and is not entitled to reconsider the Commission’s previous decisions even if it thinks that they are wrong. Damages (...)

The UK Court of Appeal holds that beer distribution agreements containing ties were contrary to Article 101.1 TFEU and upholds an appeal for damages (Crehan)
London School of Economics
In this well-known case, published for the seek of completness (See J. Derenne and T. Seidenspinner, “The English Court of appeal applies Art. 81 EC and award damages for breach of EC law (Crehan)”, e-Competitions, April 2005, n° 204) , the claimant, Mr. B. Crehan, appealed against the judgment (...)

The EU Court of Justice rules on a preliminary ruling case from the UK High Court on the fact for parties to an agreement to use allegations of breach of competition law to avoid honouring their obligations under a commercial contract (SUNAG)
Reed Smith (London)
This was a commercial private arbitration case which ended up before the English High Court, Queen Bench Division (Case C-339/95), and was referred to the European Court of Justice for a preliminary ruling. A unanimous arbitration award to enforce the agreement was appealed in the commercial (...)

All issues

  • Latest News issue 
  • All News issues
  • Latest Special issue 
  • All Special issues