Private antitrust litigation in the UK (England and Wales): overview

A Q&A guide to private antitrust litigation in the UK (England and Wales).

The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.

This Q&A is part of the Private Antitrust Litigation Global Guide.

The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.

Contents

Legal basis for bringing private antitrust litigation actions

1. Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?

Stand-alone actions

Stand-alone and follow-on actions for damages can be brought before either the High Court or the Competition Appeal Tribunal (CAT). For the CAT, this represents a significant change, as before 1 October 2015 it was only able to hear follow-on actions for damages. This change resulted from the amendments to the Competition Act 1998 (Competition Act) introduced by the Consumer Rights Act 2015 (Schedule 8). Further changes to the applicable regimes before the High Court and the CAT are due under Directive 2014/104/EU on actions for damages under national law for infringements of competition law provisions of the member states (Antitrust Damages Directive), the provisions of which the UK government is required to implement by 27 December 2016 (see Question 41).

The High Court can hear stand-alone and follow-on actions for damages relating to actual or alleged competition law infringements under the:

  • Treaty on the Functioning of the European Union (TFEU).

  • Agreement on the European Economic Area (EEA Agreement).

  • Competition Act.

Actions for damages are heard by either the Chancery Division, or the Commercial Court of the Queen's Bench Division (EU Competition Law Practice Direction under the Civil Procedure Rules 1998 (CPR)).

Currently, the CAT can hear stand-alone and follow-on actions for damages relating to actual or alleged competition law infringements under the TFEU and the Competition Act. However, it cannot hear actions relating to the EEA Agreement. The UK government is currently consulting on a proposal to enable the CAT to hear these actions to align the CAT's jurisdiction with that of the High Court.

Stand-alone actions for damages can be commenced in relation to allegedly infringing:

  • Arrangements between two or more parties (for example, a multi-party cartel).

  • Conduct by one or more parties (for example, an abuse of dominance).

Article 101 TFEU prohibits certain arrangements between undertakings that may affect trade between EU member states and have as their object or effect the prevention, restriction or distortion of competition within the internal market. Article 102 TFEU prohibits any abuse by one or more undertakings of a dominant position within the internal market (or a substantial part of the same), where that abuse may affect trade between EU member states. The provisions of Articles 101 and 102 TFEU are effectively reproduced by Articles 53 and 54 of the EEA Agreement, except that the EEA Agreement is applicable to conduct that may affect trade between:

  • One or more of Iceland, Norway, and Liechtenstein (EEA EFTA member states), and one or more EU member states.

  • Any of the EEA EFTA member states.

References in this article to EU competition law are intended to refer to the provisions of both the TFEU and the EEA Agreement where required by the context.

The key provisions of the Competition Act largely correspond with EU competition law. For example, the "Chapter I Prohibition" and the "Chapter II Prohibition" (sections 2 and 18, Competition Act) are respectively modelled on Articles 101 and 102 TFEU, except the provisions of the Competition Act apply to conduct that may affect trade within the UK. The Competition Act aims to ensure that UK competition law is applied in a manner that is consistent with EU competition law, where possible (section 60, Competition Act).

Stand-alone actions can be brought prior to, or in the absence of, the adoption of a decision or judgment finding an infringement; thus, stand-alone actions have been commenced before the High Court following the announcement of an investigation by the European Commission (Commission) into suspected infringements of EU competition law, but before any finding of infringement. Stand-alone actions can also be brought when a decision or judgment is subject to appeal.

However, a stand-alone action may be stayed under the active case management powers of the High Court and the CAT when a relevant decision or judgment is either pending or subject to appeal.

Article 16 of Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU (formerly Articles 81 and 82 of the EC Treaty) (Modernisation Regulation) requires that where national courts rule on agreements, decisions or practices under Article 101 or 102 TFEU, they must not take decisions that either:

  • Run counter to a decision adopted by the Commission in respect of the same.

  • Conflict with a decision contemplated by the Commission.

Where a Commission decision is under appeal, a national court must stay proceedings pending the final judgment of the EU courts, unless it considers that a reference to the European Court of Justice (ECJ) for a preliminary ruling on the validity of the Commission decision is required (Case C-344/98 Masterfoods Ltd v HB Icecream Ltd). Similarly, where a decision by a national competition authority is pending, or subject to appeal, an associated stand-alone action may be stayed.

The courts of England and Wales have tended to take a relatively permissive view in allowing proceedings to progress procedurally in preparation for trial (see Question 22).

Legislative (legal basis for bringing actions). Stand-alone actions for damages and/or injunctive relief in respect of alleged competition law infringements under the TFEU and/or the Competition Act can be brought before the CAT pursuant to section 47A of the Competition Act.

Non-legislative basis. Stand-alone actions can be brought before the High Court on the basis of the tort of breach of statutory duty. Pursuant to section 2(1) of the European Communities Act 1972, Articles 101 and 102 TFEU have legal effect in the UK (Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130; Crehan v Inntrepreneur Pub Co [2004] EWCA Civ 637), and the Competition Act provides the statutory basis for the Chapter I Prohibition and the Chapter II Prohibition.

Parties can also advance actions on alternative bases. For example, the Court of Appeal has confirmed that the following economic torts can provide the basis for an action, provided that the defendant had the intention to harm the claimant(s) (British Airways plc v Emerald Supplies Ltd & Others [2015] EWCA Civ 1024):

  • Interfering with business by unlawful means.

  • Conspiracy to use unlawful means.

Adversarial or inquisitorial. Stand-alone actions for damages are adversarial in nature.

Follow-on actions

As with stand-alone actions, follow-on actions for damages can be commenced in relation to infringing:

  • Arrangements between two or more parties (for example, a multi-party cartel).

  • Conduct by one or more parties (for example, an abuse of dominance).

See above, Stand-alone actions.

There is no requirement for a judgment or decision relied on as the basis for a follow-on action for damages to be final. However, under the active case management powers of the High Court and the CAT, the action would generally be stayed (see Question 22). Further, in certain circumstances, the CAT's permission may need to be obtained to bring an action during the period in which a relevant infringement decision either may be appealed, or is under appeal (see Question 6).

Legislative (legal basis for bringing actions). Follow-on actions for damages and/or injunctive relief in respect of competition law infringements under the TFEU and/or the Competition Act can be brought before the CAT pursuant to section 47A of the Competition Act in reliance upon infringement decisions adopted by:

  • The Commission.

  • The UK national competition authority, currently the Competition and Markets Authority (CMA).

  • Certain relevant UK sector regulators.

  • The CAT in relation to an appeal from an infringement decision by a relevant authority (see Question 24).

Non-legislative basis. Follow-on actions can be brought before the High Court on the basis of the tort of breach of statutory duty. See above, Stand-alone actions: Non-legislative.

Adversarial or inquisitorial. Follow-on actions for damages are adversarial in nature.

 

Parties to an action

2. What must be demonstrated to commence an action?

Stand-alone actions

A claimant must demonstrate that:

  • The defendant infringed EU and/or UK competition law.

  • The claimant suffered harm.

  • But for the defendant's infringement, the claimant would not have suffered this harm.

The case law of the ECJ provides that any individual can claim compensation for harm suffered where there is a causal relationship between that harm and an agreement or practice that is prohibited (Cases C-295/04 to C-298/04 Manfredi & Others v Lloyd Adriatico Assicurazioni SpA & Others ECLI:EU:C:2006:461).

Any natural or legal person who has suffered harm as a result of an alleged infringement of EU and/or UK competition law can commence a stand-alone action for damages before the High Court or the CAT. Therefore, third parties may bring such actions for damages, including both direct and indirect purchasers.

In addition to third parties, any party to an allegedly infringing agreement is able to bring a stand-alone action for damages. However, the ECJ has confirmed that EU law does not preclude national law from denying a party found to bear "significant responsibility" for a distortion of competition the right to obtain damages. This is on the basis that a party must not benefit from its own unlawful conduct (Case C-453/99 Courage Limited v Crehan ECLI:EU:C:2001:465).

Follow-on actions

Under a follow-on action for damages, a claimant relies on an existing finding of infringement, and is required to demonstrate that:

  • The claimant has suffered harm.

  • But for the defendant's infringement, the claimant would not have suffered this harm.

The principles outlined above in relation to stand-alone actions are also applicable to follow-on actions.

 
3. Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?

Stand-alone actions

Multiple claimants. From 1 October 2015, collective proceedings can be brought before the CAT in both stand-alone and follow-on actions for damages, under which the claims of a defined class of persons are treated as a single action. Importantly, collective proceedings can only be brought with the approval of the CAT. To seek the CAT's approval, the proposed class representative must apply for a collective proceedings order (CPO), as considered further below.

If a CPO is made by the CAT, collective proceedings may proceed. The only parties to these proceedings are the approved class representative and the defendants: represented members of the class in question cannot bring a separate action at a later date for the same claim, and are unable to appeal any judgment made by the CAT in relation to the proceedings (see Question 40).

In addition to bringing collective proceedings before the CAT, it also possible to take actions including:

  • Bringing a representative action before the High Court, where two or more parties share the "same interest" in the claim, with one or more of the parties bringing or continuing the claim as a representative (CPR Rule 19.6).

  • Seeking a group litigation order (GLO) in proceedings before the High Court, enabling the court to manage collectively issues of fact or law arising from multiple claims (CPR Rule 19.11).

However, the collective proceedings regime before the CAT was implemented to overcome the difficulties posed by representative actions and GLOs before the High Court. It is anticipated that this regime will encourage claimants to pursue collective proceedings before the CAT, rather than these alternate options.

Opt-in or opt-out. Collective proceedings can be brought on an opt-in or an opt-out basis. The CAT determines which is most appropriate on the facts of the case.

In opt-in proceedings, any judgment will be binding on those class members that opted in to the action within the applicable time period set by the CAT. In opt-out proceedings, any judgment will be binding on all UK-domiciled class members, unless they opted out of the action within the applicable time period set by the CAT. Non-UK domiciled class members must opt-in to any form of collective proceedings within the relevant time period set by the CAT. Where appropriate, the CAT may limit who is bound by any judgment in collective proceedings.

Certification. The proposed class representative must be authorised by the CAT, and the collective action requires certification by the CAT, in the form of a CPO. The proposed class representative is required to file a draft CPO for the CAT's consideration when filing the claim form in respect of the collective proceedings.

The proposed class representative is not required to be a member of the class and does not need to have a personal claim against any proposed defendant. In principle, where the proposed class representative is not a member of the class, there are a range of bodies which could seek to carry out the role of class representative, including third party funders (see Question 15); consumer organisations; trade associations; and law firms. However, the CAT will carefully consider factors including whether there is an actual or potential conflict between the interests of a proposed class representative and the interests of the class members (paragraph 6.30, CAT Guide to Proceedings 2015).

The authorisation of the class representative is intended to ensure that the class is appropriately represented. Therefore, the CAT considers whether it is just and reasonable for the proposed representative to act (Rule 78, CAT 2015). In so doing, the CAT considers whether that person:

  • Would fairly and adequately act in the interests of the class members, including:

    • whether the proposed representative is a member of the class, and if so, whether it is suitable to manage the proceedings (for example, the proposed representative would generally expected to be able to provide instructions to its lawyers, and to exercise control over the legal work undertaken and the costs incurred);

    • if the proposed representative is not a member of the class, whether it is a pre-existing body (the CAT will consider the nature of the body, it motivations, whether there is any actual or potential conflict of interests between the body and the class members, and whether the body is suitable to manage the proceedings); and

    • whether the proposed representative has prepared a plan for the proceedings, with the expectation being that the proposed representative will be able to explain how it and its lawyers intend to ensure that the proceedings will be effectively and efficiently pursued in the interests of the class, and include a costs budget up to the end of trial.

  • Has a material interest that conflicts with the interests of the class members in relation to the issues to be determined in the proceedings.

  • Would be the most suitable representative (where there is more than one proposed representative).

  • Would be able to pay the defendant's costs if ordered to do so.

  • If interim injunctive relief is sought (see Question 20), would be able to satisfy an undertaking for damages if required to do so.

The CAT will continue to consider these aspects throughout the proceedings. If it appears that the representative is no longer appropriate for the role, the CAT may vary or revoke the CPO, either on its own volition or following an application by the representative, a represented person, or a defendant (Rule 85(2), CAT 2015).

Before making a CPO, the CAT must be satisfied by the proposed class representative that the claims are eligible to be included in collective proceedings. In terms of eligibility, the CAT considers whether the claims (Rule 79(1), Competition Appeal Tribunal Rules 2015 (CAT 2015)):

  • Are brought on behalf of an identifiable class of persons.

  • Raise common issues.

  • Are suitable to be brought in collective proceedings, having regard to all matters that the CAT thinks fit.

In determining whether collective proceedings are to be brought as opt-in or opt-out proceedings, the CAT will take into account any matter it thinks fit, including:

  • The strength of the claims. While the CAT is not required to undertake a full assessment of the merits of claims, it generally expects opt-out proceedings to be perceptibly strong claims, given the complexity, cost and risks of opt-out proceedings.

  • Whether it is practicable for proceedings to be brought as opt-in proceedings. The CAT's general preference is for proceedings to be opt-in wherever practicable, and the CAT considers whether this approach is appropriate in all the circumstances (Rule 79(3), CAT 2015).

Where a CPO is made, the claims under the collective proceedings are able to proceed (section 47B(4), Competition Act). The appointed class representative must provide the members of the class with appropriate notice of the making of the CPO

(Rule 81, CAT 2015), and subsequently maintain a record of all class members that have opted in or out of the proceedings (Rule 83, CAT 2015). The appointed class representative must also provide the class members with information about the proceedings at each of the following stages:

  • In opt-in proceedings, if the class representative is a class member, and settles its own claim included in the proceedings (Rule 86, CAT 2015).

  • If the class representative wishes to withdraw from that role (Rule 87(2), CAT 2015).

  • When a judgment or order is issued by the CAT in the proceedings (Rule 91(2), CAT 2015).

  • When the CAT intends to have a hearing to determine the means by which to quantify individual claims from an aggregate award of damages in the proceedings (Rule 92(3), CAT 2015).

The CAT may also require that the class representative gives notice to the class members at other stages during the proceedings (Rule 88(2) (d), CAT 2015).

Follow-on actions

See above, Stand-alone actions.

 
4. On what basis will a court or tribunal assume jurisdiction with respect to a claim?

Stand-alone actions

Claimants can bring stand-alone and/or follow-on actions against legal persons domiciled within England and Wales.

Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) addresses jurisdiction within the EU. The Recast Brussels Regulation is applicable to all EU member states (except Denmark), and applies to proceedings commenced on or after 10 January 2015.

The general position under the Recast Brussels Regulation is that a party can be sued in the jurisdiction within which it is domiciled (Article 4(1), Recast Brussels Regulation). This general position is subject to certain exceptions, including:

  • Article 7(2). This provides that in a matter relating to "tort, delict or quasi-delict", a party may be sued in the courts of the place where the harmful event occurred or may occur. The ECJ has considered the application of this provision in the context of Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation). The ECJ held that a claimant can establish jurisdiction on a number of bases where an action is brought in reliance on a Commission decision finding that the defendants infringed EU competition law by participating in a cartel at different times and in different places (Case C-352/13 CDC v Evonik Degussa GmbH & Others ECLI:EU:C:2015:335). In these circumstances, the ECJ confirmed that the "harmful event" occurs in relation to each alleged victim individually, meaning that each alleged victim can either bring an action:

    • before the courts of the place in which the cartel was definitively concluded;

    • before the courts of the place in which one agreement in particular was concluded which is identifiable as the sole causal event resulting in the loss allegedly suffered; or

    • before the courts of the place where the alleged victim's registered office is located.

  • Article 8(1). This provides that where a party is one of a number of defendants, that party can be sued in the courts of the place where any of the defendants are domiciled, provided that proceedings are so closely connected that it is expedient to hear and determine them together, so as to avoid the risk of irreconcilable judgments resulting from separate proceedings. The ECJ has considered the application of this provision in the context of the Brussels Regulation. The ECJ held that this provision is applicable where an action is brought in reliance on a Commission decision finding that the defendants infringed EU competition law by participating in a cartel at different times and in different places. Further, if the claimant withdraws its action against a co-defendant domiciled in the member state of the court seised, the remaining defendants are still subject to the jurisdiction of that court in relation to the action. The only exception to this is where the claimant and co-defendant artificially collude at the time the action was commenced to seek to ensure the application of this provision (Case C-352/13 CDC v Evonik Degussa GmbH & Others ECLI:EU:C:2015:335).

  • Article 25. This provides that the parties are able to agree to confer jurisdiction on the courts of a member state to settle any disputes in connection with their relationship, provided that the agreement is valid under the laws of that member state. Jurisdiction must be exclusive unless the parties have agreed otherwise, and Article 25 applies irrespective of where the parties are domiciled. In conjunction, Article 31(2) provides that, where parties agree to confer jurisdiction exclusively on the courts of a member state (Agreed Courts), and those courts are seised in relation to a dispute between the parties, the courts in any other member states must stay proceedings until the Agreed Courts have declared that they do not have jurisdiction. The ECJ has considered the application of this provision in the context of the Brussels Regulation. The ECJ held that in an action for damages in respect of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, courts should take into account jurisdiction clauses in contracts for the supply of goods, provided such clauses refer to disputes concerning liability incurred as a result of an infringement of competition law (Case C-352/13 CDC v Evonik Degussa GmbH & Others ECLI:EU:C:2015:335).

  • Article 29. This provides that, without prejudice to Article 31(2), where proceedings between the same parties, and involving the same cause of action, are brought before the courts of different member states, any court other than the court first seised is required to stay proceedings pending the court first seised establishing jurisdiction. Where the court first seised establishes jurisdiction, other courts must decline jurisdiction.

  • Article 30. This provides that where "related" proceedings are brought before the courts of different member states, any court other than the court first seised can stay proceedings, and on the application of a party, can decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation of these actions. Proceedings are "related" in this context if they are so closely connected that it is expedient to hear and determine them together, so as to avoid the risk of irreconcilable judgments resulting from separate proceedings.

In applying these principles, the High Court in particular has tended to take a relatively permissive approach towards establishing jurisdiction to hear claims against entities domiciled outside of England and Wales. For example:

  • In Provimi Ltd v Roche Products Ltd & Others [2003] EWHC 961 (Comm), the High Court permitted an action against subsidiary companies (domiciled in England and Wales) to be used to bring their parent company (domiciled outside of England and Wales) into the proceedings. While the parent company had been found by the Commission to have participated an infringement of what is now Article 101 TFEU, no such finding had been made against the subsidiary companies. In this context, the High Court held that is was arguable that where distinct legal entities (that is, each of the subsidiaries and the parent company) form part of the same undertaking, then for the purposes of EU competition law, the "mind and will" of one entity is to be treated "as the mind and will of the other entity". Bringing the parent company into the proceedings enabled other addressees of the infringement decision to be brought into the proceedings, notwithstanding that they were also domiciled outside of England and Wales.

  • In Cooper Tire & Rubber Company & Others v Shell Chemicals UK Ltd & Others [2009] EWHC 2609 (Comm), the High Court followed the approach taken in Provimi. However, on appeal, while the Court of Appeal was not ultimately required to consider the issues in Provimi, it nevertheless, obiter, expressed the view that "it is by no means obvious even in an Article [101 TFEU] context that a subsidiary should be liable for what its parent does, let alone for what another subsidiary does" (see Cooper Tire & Rubber Company & Others v Dow Deutschland Inc. & Others [2010] EWCA Civ 864). In so doing, the Court of Appeal stated that, had it been required to consider the issues in Provimi, it would have been inclined to refer the question to the ECJ.

  • In KME Yorkshire Ltd & Others v Toshiba Carrier UK Ltd & Others [2012] EWCA Civ 1190, the Court of Appeal held that the issues in Provimi did not arise. This was as the action was a stand-alone claim brought in reliance upon a Commission decision. The claim alleged that a subsidiary domiciled in England and Wales (which was not found by the Commission to have infringed Article 101 TFEU) had implemented arrangements that infringed Article 101 TFEU and had knowledge of the infringing arrangements identified in the Commission decision. The Court of Appeal held that this stand-alone claim enabled proceedings to be brought before the High Court against addressees of the Commission decision domiciled outside of England and Wales pursuant to Article 6(1) of the Brussels Regulation (the text of which is reproduced as Article 8(1) of the Recast Brussels Regulation).

The Recast Brussels Regulation is applicable to all EU member states (except Denmark). If the defendant is domiciled in either Denmark, or any of Iceland, Norway or Switzerland, each of the EC-Denmark Agreement, and the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2007 (Lugano Convention) are respectively applicable. If the defendant is domiciled elsewhere, the question of whether the courts of England and Wales have jurisdiction to hear the claim will be determined by either the:

  • Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968.

  • Relevant common law regime.

Depending on the country in which the defendant is domiciled, and whether proceedings between the parties concerning the same claim are pending in another jurisdiction, the claimant (or the class representative in collective proceedings) may require permission to serve proceedings outside of the jurisdiction. Both the High Court and the CAT will apply the relevant framework under CPR Part 6 in determining whether permission is required, and if so, whether to grant permission.

Follow-on actions

See above, Stand-alone actions.

 
5. Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside of, the jurisdiction?

Stand-alone actions

Where an individual constitutes an undertaking for the purposes of EU and/or UK competition law, stand-alone and/or follow-on actions can be brought against them in relation to infringements of EU and/or UK competition law. The jurisdiction of the courts of England and Wales must be considered in the circumstances, having regard to the issues outlined in Question 4.

Follow-on actions

See above, Stand-alone actions.

 

Limitation periods and forum

6. What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?

Stand-alone actions

It is an issue of substantive law as to which laws will determine the applicable limitation periods, and so where all or part of an action for damages is substantively governed by foreign law(s), those relevant foreign law(s) will apply to determine the limitation period of part or all of the action before the High Court or the CAT (Deutsche Bahn AG & Others v MasterCard Inc. & Others and Peugeot Citroen Automobiles UK Ltd & Others v Pilkington Group Ltd [2016] CAT 14).

Where stand-alone actions for damages are governed by the laws of England and Wales, and brought before the High Court or the CAT (where the cause of action before the CAT accrued on or after 1 October 2015), the limitation period in respect of claims for tortious breach is six years from the date on which the cause of action accrued (section 2, Limitation Act 1980).

Where a stand-alone action for damages is governed by the laws of England and Wales, if the relevant cause of action accrued before 1 October 2015 and the claim is brought before the CAT, the applicable limitation period is presently unclear. This ambiguity arises due to the transitional provisions included at Rule 119 of the CAT 2015. These provide that Rules 31(1) to (3) of the Competition Appeal Tribunal Rules 2003 (Old Limitation Rules) apply to determine the limitation period for actions brought before the CAT on or after 1 October 2015, but where the underlying cause of action arose before 1 October 2015. The Old Limitation Rules previously applied only to follow-on actions; the CAT did not have jurisdiction to hear stand-alone actions before 1 October 2015. The Old Limitation Rules state that the limitation period is two years from the later of either:

  • The date on which the relevant infringement decision is final.

  • The date on which the cause of action accrued.

Rule 119 of the CAT 2015 (insofar as it applies the Old Limitation Rules) also appears to require that the CAT's permission is obtained to bring an action during the period in which an infringement decision of any of the CMA (or a relevant UK sector regulator), the CAT, or the Commission either may be appealed, or is under appeal. In the absence of the Old Limitation Rules expressly referring to stand-alone claims, it is presently unclear how these limitation periods are to be applied to stand-alone claims where the cause of action accrued before 1 October 2015. At the time of writing, the CAT has not been required to address this issue.

However, the High Court has given effect to a procedural means by which this apparent ambiguity can be avoided. In the context of a stand-alone action for damages where the cause of action accrued before 1 October 2015, the High Court transferred the entire claim to the CAT (see Question 7). In so doing, the presiding judge held that the Old Limitation Rules (however they are to be applied) were relevant to claims commenced before the CAT, but not to claims commenced before the High Court and subsequently transferred to the CAT (Sainsbury's Supermarkets Ltd v MasterCard Inc & Others 2015 EWHC 3472 (Ch)).

In certain circumstances, the limitation period applicable to stand-alone actions for tortious breach brought before the High Court or the CAT, where the cause of action accrued on or after 1 October 2015, will be suspended. This is of particular relevance to actions arising in respect of cartels, where the defendant has deliberately concealed any fact required for the claimant to establish its cause of action. In such cases, the limitation period will be suspended from running until such time as the claimant either (section 32, Limitation Act 1980; Arcadia Group Brands Ltd & Others v Visa Inc & Others [2015] EWCA Civ 883):

  • Discovered the concealment.

  • Could have discovered this with reasonable diligence.

Collective proceedings. Specific provisions apply to limitation periods under the laws of England and Wales in the context of collective proceedings before the CAT (see Question 3). In both stand-alone and follow-on actions, the limitation period is suspended from running on the date on which the collective action is commenced (section 47E(4), Competition Act). The limitation period will then resume on the date that any of the following events occur:

  • The CAT declines to make a CPO in respect of the claim.

  • The CAT makes a CPO, but not including the claim within that CPO.

  • The CAT rejects the claim.

  • Where the collective proceedings are opt-in, the claim is not opted-in within the relevant time period.

  • Where the collective proceedings are opt-out, and the claimant is domiciled with the UK, the claim is opted-out within the relevant time period.

  • The collective proceedings are withdrawn, settled, dismissed, discontinued, or otherwise disposed of without a judgment on the merits.

  • The CAT revokes or varies the CPO, such that the claim is no longer within the ambit of the proceedings.

Limitation periods under the Antitrust Damages Directive. The Antitrust Damages Directive will introduce a further limitation regime. Article 10(2) of the Antitrust Damages Directive requires that limitation periods must not begin to run before the competition law infringement has ceased, and the claimant knows (or can reasonably be expected to know) all of the following:

  • Of the infringement.

  • That the infringement has caused harm to the claimant.

  • The identity of the infringing party.

Article 10(4) of the Antitrust Damages Directive also provides that the limitation period must be suspended from running if the Commission and/or a national competition authority within the EU takes action to investigate an infringement of competition law. This suspension will end at the earliest of one year after the infringement decision has become final, or after the proceedings are otherwise terminated.

At the time of writing, the UK government intends to adopt the limitation provisions of the Antitrust Damages Directive. Additionally, the UK government intends for the provisions of the Antitrust Damages Directive to apply to infringements of UK competition law, as well as to infringements of EU competition law, thereby introducing a single regime for private antitrust litigation in England and Wales.

Follow-on actions

Where follow-on actions for damages are governed by the laws of England and Wales and are brought before the High Court or the CAT, where the cause of action accrued on or after 1 October 2015: the limitation period for claims for tortious breach is six years from the date on which the cause of action accrued (section 2, Limitation Act 1980). As outlined above, the applicable limitation period will be suspended in certain circumstances, including where the defendant has deliberately concealed any fact required for the claimant to establish its cause of action (see above, Stand-alone actions). Where all or part of an action is governed by foreign law, the limitation period under that law will apply to the action before the High Court or the CAT (Deutsche Bahn AG & Others v MasterCard Inc. & Others and Peugeot Citroen Automobiles UK Ltd & Others v Pilkington Group Ltd [2016] CAT 14).

For follow-on actions governed by the laws of England and Wales, and brought before the CAT where the cause of action accrued before 1 October 2015: the Old Limitation Rules apply (see above, Stand-alone actions). Under the Old Limitation Rules, the limitation period is two years from the later of either:

  • The date on which the infringement decision is final.

  • The date on which the cause of action accrued.

In terms of the limitation period running under the Old Limitation Rules, the Court of Appeal has confirmed that an appeal in relation to a financial penalty only (rather than a finding of infringement) does not suspend the applicable limitation period (BCL Old Co Ltd v BASF plc & Others [2009] EWCA Civ 434). The Supreme Court has further confirmed that:

  • The CAT is not empowered to extend the applicable limitation period (BCL Old Co Ltd v BASF plc & Others [2012] UKSC 45).

  • Where a party does not appeal an infringement decision, but other parties do, the limitation period applicable to the non-appealing party begins to run once the infringement decision is final as regards that non-appealing party (Deutsche Bahn AG & Others v Morgan Advanced Materials plc [2014] UKSC 24).

For details of the limitation periods in relation to follow-on actions in collective proceedings and under the Antitrust Damages Directive, see above, Stand-alone actions.

 
7. Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?

Stand-alone and follow-on actions for damages can be commenced before the High Court and the CAT (see Question 1). Actions can be transferred from the High Court to the CAT, and vice versa, at the discretion of the relevant forum.

 
8. Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?

Stand-alone actions

Advantages. Currently, a significant advantage of the High Court is the greater certainty in relation to the limitation period for a cause of action that arose before 1 October 2015 (see Question 6). In terms of the CAT, advantages include:

  • The breadth and specialist expertise of the tribunal.

  • The possibility of bringing collective proceedings (see Question 3).

  • The potential to have a claim heard under the fast track procedure (FTP) (see Question 18).

Disadvantages. A significant disadvantage in relation to bringing proceedings before the CAT is the current uncertainty in relation to the limitation period for a cause of action that arose before 1 October 2015 (see Question 6). In addition, it is presently not possible to seek declaratory relief before the CAT (see Question 39), and the CAT is unable to hear claims in relation to infringements of the EEA Agreement (see Question 1). The CAT is also unable to hear "mixed claims" (that is, claims relating also to non-competition law issues, such as validity or infringement of a patent or a contract).

Follow-on actions

See above, Stand-alone actions.

 

Standard of proof and liability

9. What is the standard of proof?

Standard of proof

In stand-alone and follow-on actions, the standard of proof before both the High Court and the CAT is the civil standard (that is, the balance of probabilities).

Burden of proof

The burden of proof is on the claimant to establish the relevant aspects of a stand-alone or follow-on claim, and on the defendant to establish the relevant aspects of any defence.

Rebuttable presumptions

There are currently no rebuttable presumptions. However, the Antitrust Damages Directive will introduce specific presumptions, including that:

  • Cartel infringements cause harm (Article 17(2), Antitrust Damages Directive) .

  • An overcharge was passed-on to an indirect purchaser (see Question 35), where that indirect purchaser is able to show that (Article 14(2), Antitrust Damages Directive):

    • the defendant infringed EU competition law;

    • the infringement resulted in an overcharge for the defendant's direct purchasers; and

    • the indirect purchaser obtained goods or services that were the object of the infringement, or goods or services containing or derived from them.

The UK government intends for the provisions of the Antitrust Damages Directive to apply to infringements of UK competition law, as well as to infringements of EU competition law, thereby introducing a single regime for private antitrust litigation in England and Wales (see Question 41).

 
10. Is liability on a joint and several basis?

Under the laws of England and Wales, there is a general presumption that liability is "joint and several" with respect to a tortious act. This is particularly relevant in the context of a multi-party cartel where, under the principle of joint and several liability for the wrongful acts, a claimant can commence proceedings against one (or a selected few) of the cartel participants for all of the damage it sustained as a result of the cartel activity. The defendant(s) can then bring so-called contribution claims against other undertakings held to, or alleged to, have participated in the cartel, so as to reduce the extent of their ultimate liability (W.H. Newson Holding Ltd & Others v IMI plc & Another [2015] EWHC 1676 (Ch)).

In principle, the High Court and the CAT are required to assess the apportionment of joint and several liability as between participants in the tortious action, on the basis of what is "just and equitable having regard to the extent of that person's responsibility for the damage in question" (section 2(1), Civil Liability (Contribution) Act 1978). This statute also provides the court with a residual discretion to "exempt any person from liability to make contribution or to direct that the contribution to be recovered from any person shall amount to a complete indemnity" (section 2(2), Civil Liability (Contribution) Act 1978). To date, no such apportionment has taken place in a case and arguably any such assessment will consider factors such as the role and responsibility of each of the defendants in participating in the infringement. Claimants are also able to seek so-called "umbrella" damages from actual or alleged cartel participants in relation to purchases made from firms that did not participate in the actual or alleged cartel (non-participating firms), on the basis that the actual or alleged cartel inflated the market price, and enabled the non-participating firms to charge higher prices to their customers as a result (Case C- 557/12 Kone AG & Others v ÖBB- Infrastruktur AG ECLI:EU:C:2014:1317).

The Antitrust Damages Directive confirms that liability for EU competition law infringement is on a joint and several basis, meaning that each undertaking that infringes EU competition law must provide compensation to the claimant for the harm in full, irrespective of whether it sold any cartel goods or services to the claimant (Article 11(1), Antitrust Damages Directive). This requirement is subject to the following exceptions:

  • Where the infringer is a small or medium-sized enterprise (SME) (and is not a recidivist) and has not led the infringement or coerced others to participate in the infringement. In such a case, the company will only be liable to its own direct and indirect purchasers where:

    • its share of the relevant market was less than 5% during the infringement; and

    • the application of joint and several liability would irretrievably jeopardise its economic viability and cause all of its assets to lose all of their value (Article 11(2) and 11(3), Antitrust Damages Directive).

    • Where the infringer is an immunity recipient. In such a case, the infringer is liable to its own direct or indirect purchasers or providers and is only liable to other affected parties if full compensation cannot be obtained from the other participants in the infringement (Article 11(4), Antitrust Damages Directive).

At the time of writing, the UK government intends to amend the Competition Act to transpose in full the provisions of the Antitrust Damages Directive regarding joint and several liability, so that these concepts would apply to actions in relation to infringements of UK competition law, as well as to infringements of EU competition law.

As noted above, defendants are able to commence contribution claims against parties found to, or alleged to, have infringed EU and/or UK competition law, irrespective of whether those parties are already involved in the claim. Contribution claims in the context of proceedings before the High Court are commenced in accordance with CPR Part 20 and proceedings before the CAT, in accordance with Rule 39 of the CAT 2015.

Contributions claims are frequently brought by defendants before the High Court and the CAT, with these claims typically running in parallel to the main claim. Section 10(1) of the Limitation Act 1980 provides that where a person has a right to recover a contribution in respect of damages from another person under section 1 of the Civil Liability (Contribution) Act 1978, an action to recover that contribution must be brought within two years of the date of either:

  • The judgment in the main claim.

  • The settlement of the main claim.

The Antitrust Damages Directive affords additional protection to immunity recipients with regard to joint and several liability under contribution claims. The Antitrust Damages Directive provides that an immunity recipient shall not be required to provide a contribution in damages which exceeds the value of the harm caused to their own direct or indirect purchasers or providers (Article 11(5), Antitrust Damages Directive).

 

Costs and timing

11. What are the recent trends in relation to the costs of bringing an action before the relevant courts/tribunals?

Stand-alone actions

The costs of bringing an action before the High Court or the CAT cannot be underestimated, particularly where an action requires substantial disclosure, and expert evidence in relation to alleged harm. In recent cases, depending on the complexity of proceedings, the parties' own costs have run into several millions of pounds. Conversely, the prospect of substantial legal costs can be an important factor in facilitating settlement, particularly with respect to multi-party cartel actions and contribution claims.

A FTP is available before the CAT for certain types of action (see Question 18). A key feature of this procedure is the capping of the costs that a party can recover from its opponent. This is intended to reduce the overall cost risk of bringing an action, and to make the CAT more accessible for individuals and smaller corporate entities.

Follow-on actions

See above, Stand-alone actions. The FTP is unlikely to be appropriate for follow-on actions for damages in respect of cartels (see Question 18).

 
12. What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?

Stand-alone actions

The High Court and the CAT are able to exercise a broad discretion in relation to the award of costs. However, the general rule is that costs "follow the event", with the unsuccessful party liable to pay the reasonably incurred costs of the successful party, subject to any offers of settlement that may have been made (see Question 30).

Follow-on actions

See above, Stand-alone actions

 
13. Can parties insure against costs risk associated with an action?

Stand-alone actions

Parties can insure against costs risks, with a number of companies specialising in litigation insurance. For example, claimants (or class representatives) and defendants can obtain after-the-event (ATE) insurance policies. ATE policies are entered into after a dispute has arisen, and typically cover the risk of being required to pay an opponent's costs. An ATE policy is often used in conjunction with a conditional fee arrangement (see Question 16).

Follow-on actions

See above, Stand-alone actions.

 
14. Can a third party fund the costs of bringing an action?

Stand-alone actions

A third party can fund the costs of a stand-alone and/or follow-on action, subject to the common law prohibitions on champerty and maintenance. The Court of Appeal has held that where a professional funder provides funding towards the costs of litigation, that funder will potentially be liable for the costs of the opposing party up to the extent of the funding provided (Arkin v Borchard Lines Ltd & Others [2005] EWCA Civ 655). The Court of Appeal considered that, in certain circumstances, it may also be appropriate for parties other than professional funders to be liable for costs where they contribute to the costs of unsuccessful proceedings.

Follow-on actions

See above, Stand-alone actions.

 
15. Can claimants assign their claim to a third party funder?

Claimants are unable to assign claims to a third party funder. However, a third party funder can be appointed as a class representative in the context of collective proceedings before the CAT (see Question 3). In deciding whether a third party funder is suitable to be appointed as a class representative, the CAT will have particular regard to any actual or potential conflict between the third party funder and the interests of the class members (paragraph 6.30, CAT Guide to Proceedings 2015).

 
16. Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?

Stand-alone actions

In litigation relating to actual or alleged infringements of EU and/or UK competition law, parties can engage legal representatives on a "contingency fee" basis, under either a:

  • Conditional fee arrangement (CFA).

  • Damages-based fee arrangement (DBA).

Under a CFA, the client only pays the fees and expenses of a person providing litigation or advocacy services in specified circumstances (for example, a successful outcome in the proceedings). Given the balance of risk between a party and its legal representative under a CFA, such arrangements generally provide for the payment of a "success" fee to the legal representative where a defined outcome is achieved. The success fee is paid in addition to the legal representative's costs. For CFAs entered into on or after 1 April 2013 in litigation relating to actual or alleged competition law infringements:

  • The level of success fee is capped at 100% of the legal representative's fees that would be payable in the absence of the CFA (Article 3, Conditional Fee Agreements Order 2013 (SI 2013/689)).

  • The CFA must be in writing, and state the percentage level by which the success fee will increase the fees that would be payable in the absence of the CFA (section 58(4)(b), Courts and Legal Services Act 1990).

  • The success fee payable by the successful party cannot be recovered in whole or part from its opponent (section 58A(6), Courts and Legal Services Act 1990).

Under a DBA, the client only pays the fees and expenses of a person providing litigation, advocacy, or claims management services if the client receives certain damages in connection with the dispute, with payment made as a percentage of the damages received. DBAs have been permitted in proceedings in England and Wales since 1 April 2013, subject to certain exceptions (for example, DBAs are unenforceable in the context of opt-out collective proceedings before the CAT, see Question 3). With the exception of opt-out collective proceedings, where DBAs are entered into in litigation relating to actual or alleged competition law infringements:

  • The level of fee and expenses payable under the DBA, inclusive of VAT, must not exceed 50% of the sum in damages received by the client at first instance (Regulation 4(3), Damages-Based Agreements Regulations 2013/609).

  • The indemnity principle applies, meaning that the client cannot recover from its opponent a greater level of fees and expenses than the client is liable to pay under the DBA.

Follow-on actions

See above, Stand-alone actions.

 
17. If it possible for a defendant to a claim to bring an application for security for costs?

A defendant can apply for an order for security for costs in either the High Court or the CAT, with each forum able to exercise its discretion in granting such an application.

If an application for security for costs is made against a claimant, the High Court considers whether it is just to grant any application in all the circumstances of the case. In so doing, the court considers whether any of the conditions provided by CPR Part 25.13 are applicable, including:

  • Where the claimant is resident, and the applicable jurisdictional provisions.

  • Whether there is reason to believe that the claimant will be unable to pay the defendant's costs if ordered to do so.

  • Whether the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against the claimant.

Additionally, in certain circumstances the defendant is also able to apply for security for costs from non-parties (CPR Part 25.14).

The approach taken by the CAT in respect of applications for security for costs is closely aligned to that of the High Court (Rule 59, CAT 2015). Applications for security for costs can be made in collective proceedings (whereby the class representative would be required to pay the defendant's costs) but are unlikely to be ordered in cases under the FTP (see Question 18).

 
18. What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?

Stand-alone actions

In stand-alone actions for damages arising from pan-European multi-party cartels, active case management by the High Court and the CAT seeks to avoid unnecessary delays in proceedings. However, such actions have tended to proceed more slowly than stand-alone actions relating to alleged bilateral infringements of EU and/or UK competition law, and alleged abuses of dominance. For allegations of abuse of dominance, the High Court has used its case management powers to order trials of liability in relation to alleged abuses, with dominance assumed for these purposes. For example, in Arriva The Shires Ltd v London Luton Airport Operations Ltd [2014] EWHC 64 (Ch), an expedited trial of liability was ordered in June 2013, with judgment on liability handed down in January 2014.

From 1 October 2015, the CAT is able to order that proceedings before it will be subject to the FTP. The CAT may also order that the FTP will cease to apply to proceedings (CAT 2015, Rule 58(1)). Any such orders can be made at any time by the CAT acting on its own initiative, or on the application of a party. Where the CAT orders that proceedings will be subject to the FTP:

  • The substantive hearing of the claim is to be fixed to commence as soon as possible, and within six months of the CAT's order.

  • The amount of costs that a party can recover from its opponent is to be capped at a level set by the CAT.

In deciding whether to apply the FTP, the CAT is able to consider all matters it thinks fit, including (CAT 2015, Rule 58(3)):

  • Whether one or more of the parties is an individual, a micro-enterprise or an SME.

  • Whether the time estimate for the hearing is three days or less.

  • The complexity and novelty of the issues.

  • Whether any counter-claims or contribution claims have been, or will be, made.

  • The number of witnesses involved, including expert witnesses.

  • The scale and nature of documentary evidence involved.

  • Whether disclosure is required, and if so, the likely extent of that disclosure.

  • The nature of the remedy sought, and where damages are claimed, the amount of damages sought.

The CAT Guide to Proceedings 2015 indicates that the FTP is likely to be ordered only in clear-cut candidate cases. These are generally expected to arise in the context of a claim for injunctive relief, or if damages are sought in a case, where all the parties are "committed to a tightly constrained and exceptionally focused approach to the litigation" (paragraph 5.146, CAT Guide to Proceedings 2015).

At the time of writing, the CAT has applied the FTP to one action. In a stand-alone claim alleging an abuse of dominance, the CAT ordered the trial of liability to proceed under the FTP, with quantum to be addressed following the liability trial. On the facts of the case, the CAT did not consider that market definition would be significantly complex, and disclosure was not expected to be substantial. Further, only a limited number of witnesses and experts would be involved, and while the duration of the trial would foreseeably exceed the three-day guideline (possibly being heard in four days), the CAT did not regard this time period as fixed for the purpose of applying the FTP (Socrates Training Ltd v The Law Society of England and Wales, transcript of first case management conference).

Follow-on actions

In follow-on actions arising from pan-European multi-party cartels, parties have typically engaged in satellite litigation, with some years passing between a finding of infringement and any subsequent substantive trial. For example, in Cooper Tire and Rubber Company Ltd & Others v Shell Chemicals UK Ltd & Others, a claim for damages was commenced in February 2008 in reliance on the Commission's infringement decision of November 2006. Following satellite litigation on a number of issues, the substantive trial of the claim began in May 2014, with the claim subsequently settled during the trial.

Although the FTP is available in relation to follow-on actions, the CAT has indicated that the FTP is generally unlikely to be appropriate for claims for damages arising from cartels, particularly where the cartel in question has existed for several years. This reflects the inherent complexities of causation and quantum in such cases (Breasley Pillows Ltd & Others v Vita Cellular Foams (UK) Ltd & Others [2016] CAT 8).

In follow-on actions in respect of abuses of dominance, these have tended to proceed with comparative speed. For example, in 2 Travel Group plc (in liquidation) v Cardiff City Transport Services Ltd [2012] CAT 19, the CAT received notice of the claim for damages on 18 January 2011, and gave judgment awarding damages on 5 July 2012.

 

Pre-trial applications and hearings

19. Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?

Stand-alone actions

High Court. Third parties can obtain copies of statements of case filed on or after 2 October 2006 (although not documents filed with, or attached to, the same), and judgments or orders made in public, where (CPR Rule 5.4C):

  • There is only one defendant, that defendant has filed an acknowledgement of service or a defence.

  • There is more than one defendant, all of the defendants have filed an acknowledgement of service or a defence (with the court's permission required if an acknowledgement of service or a defence has been filed by at least one defendant, but not all).

  • The claim has been listed for a hearing.

  • Judgment has been entered in the claim.

These provisions do not apply to certain documents under CPR Rule 78 relating to the application of the Directive 2008/52/EC on Mediation in Civil and Commercial Matters.

In addition, with the court's permission a third party can obtain copies of any other document filed by a party, or communication between the court and a party or another person (CPR Rule 5.4C(2)). Importantly, parties to the proceedings (and any parties identified in statements of case) are able to apply to the court to "seal the file", so as to prevent third parties from obtaining all or parts of copies of statements of case (CPR Rule 5.4C(4)).

CAT. The CAT will generally publish a summary of the claimant's case, or a summary of a claim form in collective proceedings, on its website. Further, paragraph 9.66 of the CAT Guide to Proceedings 2015 provides that where a pleading, skeleton argument, witness statement or expert report is referred to or quoted in open court, the party producing that document (or for whom that document was produced), must be prepared to make a non-confidential version available to a third party on request. If access is refused, the third party can make a formal application to the CAT.

Follow-on actions

See above, Stand-alone actions.

 
20. Can a claimant seek interim measures?

Stand-alone actions

Claimants can apply for interim measures before the High Court and the CAT in both stand-alone and follow-on actions.

The High Court has previously granted interim relief in stand-alone actions, including mandatory injunctions (that is, requiring a party to do a specific act) and prohibitory injunctions (that is, requiring a party not to do a specific act) (Dahabshiil Transfer Services Ltd v Barclays Bank plc and Harada Ltd & Another v Barclays Bank plc [2013] EWHC 3379 (Ch)). The CAT is also able to grant interim relief, including interim payments, as well as interim injunctions. At the time of writing, the High Court and the CAT have not yet considered an application for interim relief in respect of a follow-on action.

With regard to the grant of interim injunctions, the High Court will have regard to the principles developed following American Cyanamid Co (No. 1) v Ethicon Ltd [1975] AC 396. In so doing, the court will consider:

  • Whether there is a serious question to be tried.

  • If so, whether damages would be an inadequate remedy for the claimant if it was to succeed at trial.

  • If so, whether damages would be an adequate remedy for the defendant, if the claimant did not succeed at trial.

  • Whether the balance of convenience favours the grant of an interim injunction.

  • Whether there are any other factors which should be taken into account.

While the CAT has been able to grant interim injunctions since 1 October 2015, at the time of writing it has yet to do so. The CAT will apply the principles that the High Court would apply in deciding whether to grant an interim injunction (section 47D(2), Competition Act).

Interim injunctive relief may be granted by the High Court and the CAT on a quia timet basis, where the harm is threatened, but not yet manifest (Packet Media Ltd v Telefonica UK Ltd [2015] EWHC 2235 (Ch)).

In recent years, there has been a relative increase in interim injunctive relief being sought in stand-alone cases. This trend is expected to continue following the introduction of the FTP (see Question 18).

Follow-on actions

See above, Stand-alone actions.

 
21. Can a defendant seek to dispose of all or part of the action prior to a full trial?

In stand-alone and follow-on actions, the High Court or the CAT can dispose of all or part of a claim prior to a full trial by way of a strike out or a summary judgment. These can be ordered by the High Court or the CAT on its own initiative, or on the application of a party.

Strike out. In proceedings before the High Court, the court can strike out all or part of a statement of case if it appears that:

  • This discloses no reasonable grounds for bringing or defending the claim.

  • This is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings.

  • There has been a failure to comply with a rule, practice direction or court order (CPR Part 3.4(2)).

In proceedings before the CAT, the available bases for strike out are closely aligned with those before the High Court under CPR Part 3.4(2), subject to the additional base that the CAT can strike out when it does not consider that it has jurisdiction to hear or determine the claim (Rule 41(1), CAT 2015).

Summary judgment. In proceedings before the High Court, CPR Part 24.2 provides that the court can give summary judgment on all or part of a claim if both:

  • The court considers that either the claimant or the defendant has no real prospect of succeeding on the claim or issue.

  • There is no other compelling reason why the claim or issue should be disposed of at a trial.

In proceedings before the CAT, the provisions in relation to summary judgment are closely aligned with those applicable to proceedings before the High Court (Rule 43, CAT 2015).

As in any complex litigation, applications for interlocutory relief such as strike out and/or summary judgment applications are used by both claimants and defendants to undermine their opponent's case, particularly in the context of litigation arising from a Commission decision finding a pan-European infringement. For example, defendant parties have applied successfully to dismiss all or part of the claimants' claims on the basis that:

  • The claims fell outside of the scope of the territorial application of EU competition law (Iiyama Benelux BV & Others v Schott AG & Others [2016] EWHC 1207 (Ch), permission to appeal the judgment was being sought at the time of writing).

  • Part of the claim was time-barred, insofar as it was outside of the applicable limitation period (Arcadia Group Brands Ltd & Others v Visa Inc & Others [2015] EWCA Civ 883).

  • The claimants did not have reasonable grounds for bringing claims in relation to certain economic torts (British Airways plc v Emerald Supplies Ltd & Others [2015] EWCA Civ 1024).

 
22. Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?

Staying a claim

The case management powers of the High Court and the CAT enable proceedings to be stayed. Therefore, a defendant can apply to stay a claim, for example to avoid a conflict with a decision contemplated by the Commission (see Question 2). While the CAT's role in relation to considering stays of proceedings has been limited to date, the High Court has considered in a number of cases how far an action may progress when proceedings concerning the same issue are before the Commission or the EU courts (specifically, the General Court or the ECJ). In so doing, the High Court has tended to take a relatively permissive approach to allowing actions to progress.

In terms of guiding principles, the High Court has held that:

  • EU law does not prevent national proceedings from continuing to a point falling short of an actual decision or judgment (MTV Europe v BMG Records (UK) Ltd [1997] 1 CMLR 867).

  • The court has the discretion to determine what steps short of trial should be taken (Morgan Stanley Dean Witter Bank Ltd v Visa International Services Association [2001] All ER (D) 18 (May)).

  • Discretion must be exercised in light of the overriding objective of the CPR and the need to avoid a decision running counter to that of the Commission or the EU courts (National Grid Electricity Transmission Plc v ABB Ltd & Others [2009] EWHC 1326 (Ch)).

  • It will usually be appropriate to require the defendants to plead a defence (WM Morrison Supermarkets plc v MasterCard Inc [2013] EWHC 1071 (Comm)).

  • Whether further steps should be taken in the proceedings will depend on all the circumstances, including (Infederation Limited v Google Inc & Others [2013] EWHC 2295 (Ch)):

  • whether the proceedings are a follow-on action from a Commission decision, or a stand-alone action brought in parallel to an ongoing Commission investigation;

  • whether it is possible to reach a view from the status of the EU proceedings as to the likelihood of the proceedings in England and Wales progressing to trial;

  • the status of the proceedings at an EU-level, and the likely delay until a trial in England and Wales;

  • how much time has elapsed since the events covered by the allegations, and whether further delay may affect the availability and credibility of evidence;

  • whether it will be unduly burdensome for the defendants to take steps in proceedings in England and Wales at the same time as they are contesting proceedings at an EU-level; and

  • whether it is practicable to control the burden and costs of those steps by effective case management).

 
23. Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?

Where appropriate, both the High Court and the CAT are able to hear the trial of a "preliminary issue" prior to a full trial. A trial of a preliminary issue may be ordered by the High Court or the CAT acting on its own initiative, or on the application of a party, to ensure that cases are dealt with justly and at proportionate cost.

 

Evidence and legal privilege

24. Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?

Competition authority decisions

For stand-alone and follow-on actions for damages, both the High Court and the CAT are bound by final decisions (that is, decisions which can no longer be appealed) adopted on or after 1 October 2015 where (section 58A, Competition Act):

  • The Commission finds an infringement of EU competition law.

  • The CMA (or a relevant UK sector regulator) finds an infringement of EU and/or UK competition law.

  • The CAT finds an infringement of EU and/or UK competition law in relation to an appeal from an infringement decision by the CMA.

Further, unless the High Court or the CAT directs otherwise, any finding of fact made by the CMA (or a relevant UK sector regulator) during the course of any investigation is binding on the parties to an action where either:

  • The relevant time period for appealing such a finding has expired.

  • The finding has been confirmed on appeal by the CAT (section 58, Competition Act).

The following information applies in relation to decisions adopted before 1 October 2015:

  • High Court. Where national courts rule on agreements, decisions or practices under Article 101 and/or 102 TFEU, they must not take decisions which would either:

    • run counter to a decision adopted by the Commission in respect of the same;

    • conflict with a decision contemplated by the Commission.

    The High Court is bound by a decision finding an infringement of EU and/or UK competition law by any of the following:

    • the CMA (or its predecessor, the Office of Fair Trading (OFT);

    • a relevant UK sector regulator;

    • the CAT in relation to an appeal from an infringement decision by the CMA or a relevant UK sector regulator, once any time period within which an appeal may be made has expired.

    Unless the High Court directs otherwise, any finding of fact made by the CMA or the OFT (or a relevant UK sector regulator) during the course of any investigation is binding on the parties to an action where either:

    • the relevant time period for appealing such a finding has expired without an appeal; or

    • the finding has been confirmed on appeal.

  • CAT. The CAT is bound by a decision finding an infringement of EU and/or UK competition law by any of the following:

    • the Commission.

    • the CMA or the OFT.

    • a relevant UK sector regulator.

    • the CAT in relation to an appeal from an infringement decision by a relevant authority.

    Unless the CAT directs otherwise, any finding of fact made by the CMA or the OFT (or a relevant UK sector regulator) during the course of any investigation is binding on the parties to an action where either:

    • the relevant time period for appealing such a finding has expired without an appeal; or

    • the finding has been confirmed on appeal.

Judgments

See above, Competition authority decisions.

 
25. What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?

Findings of fact and/or infringement made by competent bodies in third countries are of limited evidential value to the High Court and the CAT, which are not bound or required to take judicial notice of such findings. However, the underlying evidence on which such findings have been made is likely to be disclosable (see Question 26), and may therefore be admissible in evidence.

The Antitrust Damages Directive provides that where a final decision is taken in another EEA member state, it will be capable of being presented as at least evidence of an infringement of competition law (Article 9(2), Antitrust Damages Directive).

 
26. If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?

High Court

A party "discloses" a document by stating that the document exists, or has existed (CPR Rule 31.2). The term "document" is construed widely, and means "anything in which information of any description is recorded", including electronic documents such as emails, text messages, voicemail messages, and metadata (CPR Rule 31.4). As a general rule, a party to whom a document has been disclosed is able to inspect that document, unless for example the document is no longer in the control of the disclosing party, or the disclosing party has a right or duty to withhold the document from inspection (CPR Rule 31.3).

While the parties to proceedings before the High Court can seek to agree a different level of disclosure, the position in relation to "standard disclosure" in multi-track cases is that each party is required to disclose (CPR Rule 31. 6):

  • The documents on which it relies.

  • The documents which:

    • adversely affect its own case;

    • adversely affect another party's case; or

    • support another party's case.

  • The documents it is required to disclosure under any relevant practice direction.

A party's duty to disclose documents is limited to those documents that are, or have been, in its control (CPR 31.8). Importantly, the duty of disclosure continues until the proceedings have concluded (CPR 31.11). In the context of standard disclosure, the parties will prepare and serve upon each other "disclosure lists", clearly setting out the documents disclosed by each party, and identifying any disclosed documents which the disclosing party claims a right to withhold from inspection (for example, on the basis of legal privilege (see Question 28), as well as documents which are no longer in the disclosing party's control.

Where a party has a right to inspect a document that has been disclosed, it must give the disclosing party written notice of its intention to inspect the document. The disclosing party must then permit inspection not more than seven days after the date on which it received the notice (CPR Rule 31.15). In addition, a party can inspect a document mentioned in (CPR Rule 31.14):

  • A statement of case.

  • A witness statement.

  • A witness summary.

  • An affidavit.

A party may also apply to inspect any document mentioned in an expert's report that has not otherwise been disclosed.

In addition to standard disclosure, the High Court can make orders for specific disclosure or inspection (CPR Rule 31.12). An order for specific disclosure may require a party to disclose specific documents or classes of documents, or to undertake a specific search for documents and to disclose the results of that search. An order for specific inspection requires a party to permit the inspection of certain documents that had been disclosed. Disclosure and inspection may also be ordered in relation to non-parties (CPR Rule 31.17).

CAT

The CAT will order disclosure as it considers appropriate to deal with the relevant case justly and at proportionate cost. In this context, the purpose of disclosure is "to obtain documentary material that assists in determination of the issues raised by the pleadings and it is not to be used as a weapon in a war of attrition" (paragraph 5.87, CAT Guide to Proceeding 2015). Accordingly, while the CAT is able to exercise broad powers with regard to disclosure, parties do not have an automatic right to disclosure. However, parties are able to request inspection of any document mentioned in:

  • The relevant pleadings.

  • A witness statement.

  • An affidavit.

  • An expert's report (Rule 61, CAT 2015).

If the CAT orders disclosure, it will provide directions as to how the disclosure should be given (Rule 60(3), CAT 2015) and the duty of disclosure will continue until proceedings are concluded (Rule 60(6), CAT 2015). The CAT is also able to order disclosure in relation to non-parties (Rule 63, CAT 2015).

While the duty of disclosure continues until the proceedings are concluded, a formal exchange of disclosure lists must take place well in advance of trial. The timescales for disclosure are addressed by the High Court and the CAT using their case management powers. While both the High Court and the CAT are able to order pre-action disclosure, it is relatively uncommon for them to do so.

A claimant may seek disclosure of a confidential version of a competition authority's infringement decision in the defendant's control, either in the context of disclosure between the parties, or by inviting the High Court or the CAT to obtain the relevant document from the Commission (Article 15(1), Modernisation Regulation). While the CAT has yet to address such disclosure, the High Court has previously made orders requiring:

  • Disclosure within a confidentiality ring (see Question 33) of certain parts of a confidential version of a Commission decision (National Grid Electricity Transmission plc v ABB Ltd & Others [2012] EWHC 869 (Ch)).

  • Disclosure within a confidentiality ring of a full confidential version of a Commission decision (Secretary of State for Health & Others v Servier Laboratories Limited & Others [2015] EWHC 647 (Ch)).

The Court of Appeal has confirmed that, if the disclosure of all or part of a confidential version of an infringement decision is ordered, measures must necessarily be taken to protect non-addressees' rights to the presumption of innocence pursuant to the judgment of the General Court in Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission ECLI:EU:T:2007:306 (Air Canada & Others v Emerald Supplies Limited & Others [2015] EWCA Civ 1024).

In addition, at the time of writing, a claimant can apply to obtain leniency materials submitted by the defendant to competition authorities. The High Court has previously ordered the disclosure of a limited number of documents that included leniency materials, in light of the principles established by the ECJ in Case C-360/09 Pfleiderer AG v Bundeskartellamt ECLI:EU:C:2011:389, and having regard to written observations submitted by the Commission (National Grid Electricity Transmission plc v ABB Ltd & Others [2012] EWHC 869 (Ch)). However, as considered further below, changes introduced by the Antitrust Damages Directive will close off this possible avenue by which to obtain leniency materials.

A claimant may also apply to obtain documents from third parties, including from the Commission in reliance on the application of Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents (Public Access to EU Documents Regulation). However, the case law of the ECJ and the General Court confirms that claimants are required to present clear and credible reasons before the Commission is required to consider granting access to documents. For example, where a potential claimant in respect of an infringement of Article 101 TFEU sought access to the Commission's case file and the confidential version of the infringement decision, the General Court held that:

  • Third parties do not have any "right" of access to the Commission's case file.

  • There is a general presumption that the disclosure of documents gathered by the Commission in the context of proceedings under Article 101 TFEU would undermine, in principle, both the protection of the purpose of such proceedings, and the protection of the commercial interests of the parties involved in such proceedings.

  • A person seeking compensation for an infringement of Article 101 TFEU must establish that it is necessary for them to access documents in the Commission's case file, to enable the Commission to weigh up on a case-by-case basis the interests in favour of disclosing or protecting such documents.

  • In the absence of such necessity, an interest in obtaining compensation cannot constitute an overriding public interest within the meaning of Article 4(2) of the Public Access to EU Documents Regulation.

  • The potential claimant was entitled to obtain a copy of the non-confidential version of the Commission's infringement decision, excluding any parts of that version where confidentially was still claimed by any party (Case T- 534/11 Schenker v Commission ECLI:EU:T:2014:854).

Importantly, the Antitrust Damages Directive will introduce significant changes to the extent to which documents may be obtained. In this context, Articles 6 and 7 of the Antitrust Damages Directive provide that:

  • The High Court and the CAT may only order the disclosure of the following categories of evidence after a the Commission and/or a national competition authority within the EEA has closed its proceedings:

    • information prepared specifically for the proceedings of a competition authority;

    • information that the competition authority has drawn up and sent to the parties in the course of its proceedings; and

    • settlement submissions made by the parties to the competition authority that have been withdrawn.

  • The High Court and the CAT will be unable to order the disclosure of leniency statements, and settlement submissions (as defined within Article 2 of the Antitrust Damages Directive).

 
27. Can a party oppose the provision of any documents not in their possession or control?

Parties are able to oppose the provision of documents by third parties.

Where an application for third party disclosure is made by a party in ongoing proceedings, either the High Court or the CAT can be expected to exercise their respective case management powers to require that the application is served on the parties to those proceedings. This would then enable a party to oppose the application.

In the event that the Commission decides to provide documents for use in proceedings before the High Court or the CAT, that decision may be challenged before the General Court, with interim measures sought to prevent the provision of the documents in question (Case T-164/12 R Alstom v Commission ECLI:EU:T:2012:637).

In relation to the CMA (and its predecessor the OFT), it has generally sought to resist providing documents for use in proceedings before the High Court or the CAT. In addition, section 241A of the Enterprise Act 2002 expressly prevents public authorities from disclosing specific categories of information for use in civil proceedings, including information received by the authority in connection with a competition law investigation under the Competition Act.

 
28. Can parties rely on legal privilege to withhold documents from inspection?

Where parties are required to disclose documents, specific documents can be withheld from inspection in certain circumstances (see Question 26).

For example, in proceedings before the High Court, parties can withhold documents from inspection that are subject to either:

  • Legal advice privilege. This applies to confidential communications between a client and its legal advisers for the purpose of obtaining legal advice or assistance. For the purposes of legal advice privilege, it does not matter whether or not litigation has been started, or even contemplated.

  • Litigation privilege. This only applies to communications that came into existence when litigation was ongoing or contemplated. However, it is wider in application than legal advice privilege, as it applies to both:

    • communications between legal advisers and third parties when made with a view to the litigation; and

    • communications between clients (as opposed to their legal advisers) and third parties, provided that the communications came into existence for the purpose of obtaining legal advice in connection with existing or contemplated proceedings.

Documents subject to "without prejudice" privilege may also be withheld from inspection. Additionally, in certain situations parties may be able to withhold documents from inspection on the basis of "common interest" privilege.

In proceedings before the CAT, parties are also able to claim a right to withhold inspection of documents in reliance upon privilege (Rule 64(3), CAT 2015).

 

Alternative dispute resolution

29. Can the parties seek to resolve the action through alternative dispute resolution?

Parties are able to resolve disputes through alternative dispute resolution (ADR), and are encouraged so to do; the High Court can give directions requiring the parties to consider ADR (paragraph 4.10(9), CPR Practice Direction 29), and the CAT is also able to encourage and facilitate the use of ADR if it considers this to be appropriate (Rule 4(6)(a), CAT 2015).

It is not compulsory for parties to engage in ADR. However, in proceedings intended to be brought before the High Court in particular, the claimant must consider whether ADR would resolve the dispute before issuing proceedings (paragraph 8, CPR Practice Direction on Pre-Action Conduct). The court may take into account any failure to do so when considering the apportionment of costs.

Further, in the context of collective proceedings (see Question 3), the proposed class representative must state when applying for a CPO whether the parties have used an ADR procedure (Rule 75(2)(g), CAT 2015). In considering whether claims are suitable to be brought in collective proceedings, the CAT may take into account the availability of ADR as a means of resolving the dispute, including the availability of redress through any form of voluntary redress (Rule 79(2)(g), CAT 2015).

While there is no express or implied obligation to engage in ADR in good faith,

where a party unreasonably refuses to engage in ADR, it risks subsequent costs sanctions. Further, in PGF II SA v OMFS Company 1 Limited [2013] EWCA Civ 1288, the Court of Appeal confirmed that "silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable".

Given the costs consequences that may arise from a party's failure to engage reasonably with ADR, there is a tactical advantage to be gained where a party is able to position itself as proactively seeking to explore ADR. However, before engaging in ADR, parties must be clear in their own minds what they wish to achieve from the exercise, and there should be a reasonable degree of co-operation between the parties in identifying and addressing the key issues in dispute. Without due preparation, there is a risk that a party may adopt a position that it subsequently wishes to alter. This may weaken the party's position in the ADR exercise, and/or the litigation more generally.

 

Settlement or discontinuance of an action

30. What are the tactical advantages and disadvantages associated with making an offer of settlement?

Stand-alone actions

Advantages. In proceedings before the High Court, parties are able to make a range of offers of settlement in relation to all or part of the claim, including offers of settlement made under the regime established by CPR Part 36 (Part 36 Offers).

CPR Part 36 provides for a detailed, self-contained regime, which includes specific cost consequences where the claimant at trial either:

  • "Wins" by beating its Part 36 Offer (that is, the claimant is awarded a sum equal to or more than the amount of its offer).

  • "Loses" by failing to beat the defendant's Part 36 Offer (that is, the claimant is awarded a sum equal to or less advantageous than the defendant's offer).

Unless the court considers it unjust to do so, it must make an order for specific costs consequences in relation to a Part 36 Offer, including that the "losing" party pay all (or part) of the other side's costs, together with interest on those costs. Additionally, where a claimant "wins" by beating its own Part 36 Offer, the "losing" defendant will be required to make an additional payment expressed as a percentage of the sum awarded by the court to the claimant (or the sum awarded by the court as costs to the claimant if no monetary sum is awarded), subject to a maximum of GB£75,000. In view of the costs protection potentially afforded by Part 36 Offers, parties must carefully consider whether it would be advantageous to make such an offer. Outside of the specific regime of CPR Part 36, when considering the appropriate order in relation to costs, the court will generally have regard to any offers of settlement made in the context of the dispute.

In proceedings before the CAT, parties are also able to make a range of offers of settlement. This includes offers of settlement made under the regime established by CAT 2015, Rule 45 (Rule 45 Offers), with the regime under this rule closely aligned to the regime under CPR Part 36.

Importantly, the regime in relation to Rule 45 Offers does not apply in collective proceedings before the CAT. In collective proceedings, parties may make settlement offers on a "without prejudice save as to costs" basis, whereby the CAT may take such offers into account if it is subsequently required to make an order in relation to costs. Further, in collective proceedings, the only parties to the proceedings are the class representative and the defendants; it is therefore not possible for represented members of the relevant class to make or accept settlement offers.

Disadvantages. Where parties are insufficiently informed (or overly optimistic) about the strength of their case, they may be inclined to make settlement offers which do not result in settlement or provide the offeror with any reasonable prospect of protection on costs.

Follow-on actions

See above, Stand-alone actions.

 
31. Is permission required from the relevant court or tribunal to settle any action prior to or during trial?

High Court

Part 36 Offers can be accepted without the court's permission prior to the commencement of trial, but the court's permission is required to accept a Part 36 Offer once the trial has commenced (CPR Rule 36.11(3)(d)) (see Question 30). Other offers of settlement can be accepted at any time without the court's permission.

If the parties agree to settle a claim, they will generally agree between themselves how the cost of the proceedings will be addressed. If settlement is reached by way of the acceptance of a Part 36 Offer, the applicable regime under CPR Part 36 includes specific provisions whereby the court will make an order for the payment of costs in the event that these are not agreed by the parties (see Question 30).

Where the parties agree to settle, proceedings will ordinarily be stayed, either at the parties' request, or by the application of the CPR. For example, CPR Rule 36.14(1) provides that a claim will be stayed where a Part 36 Offer is accepted. Where the settlement proceeds, the court will not deliver judgment, but will usually make an order requested by the parties (for example, dismissing the claim, and addressing the issue of costs). If only part of the claim is settled (for example, liability, but not quantum), the remainder of the claim will continue.

CAT

In proceedings before the CAT, Rule 45 Offers may be accepted without the CAT's permission prior to the commencement of trial, but the CAT's permission is required to accept a Rule 45 Offer once the trial has commenced (CAT 2015, Rule 45(7)(b)) (see Question 30). With the exception of action in certain collective proceedings (see below), other offers of settlement can be accepted without the CAT's permission at any time.

If the parties agree to settle an action before the CAT, they will generally agree between themselves how the cost of the proceedings will be addressed. If settlement is reached by way of the acceptance of a Rule 45 Offer, the costs regime under CAT 2015, Rule 48 includes specific provisions under which the CAT will make an order for the payment of costs if these are not agreed by the parties (see Question 30).

If the parties agree to settle, they may agree to seek an order for the withdrawal of the claim. If the claim is withdrawn, the CAT remains able to make any consequential order it thinks fit (Rule 44, CAT 2015). Alternatively, the parties may agree to seek an order that the proceedings be stayed, save for the express purpose of giving effect to the parties' terms of settlement (Rule 53(2)(k), CAT 2015).

In collective proceedings, while it is not possible to make Rule 45 Offers, parties can make settlement offers on a "without prejudice save as to costs" basis (see Question 30). In this context, there are two forms of collective settlement that require the CAT's approval:

  • Collective settlement following a CPO for opt-out collective proceedings (Rule 94, CAT 2015).

  • Collective settlement where proceedings have yet to be started and no CPO has been made (Rule 96, CAT 2015).

Importantly, the CAT can only approve a collective settlement when satisfied that its terms are just and reasonable, and it remains possible for class members and represented persons (whether UK-domiciled or otherwise) to choose to remain outside of any collective settlement approved by the CAT. If the parties choose to remain outside of a collective settlement, the CAT may permit the proceedings to continue between different parties. The CAT Guide to Proceedings 2015 sets out detailed guidance in relation to the process by which approvals of collective settlement can be sought, expanding upon the provisions of Rules 94 to 97 of CAT 2015. At the time of writing, the CAT is yet to approve any form of collective settlement.

For opt-in collective proceedings, there is no requirement for the CAT's approval in relation to a collective settlement, save that the class representative may not settle proceedings without the CAT's permission before the expiry of the time period for opting-in to the proceedings (Rule 95, CAT 2015). Further, where a class representative is also a member of the class, it must notify both the CAT and the class members if it settles all or part of its personal claim included within the collective proceedings (Rule 86, CAT 2015). This is on the basis that such settlement may mean that it is no longer appropriate for the class representative to fulfil that role.

 

Proceedings at trial

32. Are actions heard by a jury?

Trial by jury is not available in England and Wales for private antitrust litigation actions.

 
33. How is confidential information protected during the course of proceedings?

In proceedings before the High Court, a "confidentiality ring" can be established. This will typically limit the provision of confidential documents to specific individuals (generally excluding the commercial parties), and restrict reference to the confidential information in open court or in judgments. Before ordering a confidentiality ring, the court will consider whether this is practically and administratively feasible. Each individual member of a confidentiality ring will usually be required to give an undertaking of compliance to the ordered terms of use of the confidential information and, once established, any extension of the membership of the confidentiality ring generally requires the permission of the court. In proceedings before the CAT, a party can request any document (or part of it) be treated as confidential (Rule 101(1), CAT 2015). The CAT will decide whether such information is to be treated as confidential in the circumstances of each individual case, and is able to direct that documents, or parts of documents, are disclosed within a confidentiality ring (Rule 101(3), CAT 2015).

The procedural rules of the High Court may also be used to protect confidential information filed during the course of proceedings (see Question 19). Further, in proceedings before the High Court, CPR Rule 31.22(2) provides that the court may make an order restricting or prohibiting the use of a document that has been disclosed. A party to the proceedings, or person to whom the document belongs, may apply for such an order. As noted above, in proceedings before the CAT, a party may request that any document or part of it is treated as being confidential (Rule 101(1), CAT 2015).

 
34. What evidence is admissible?

While it may be possible to introduce evidence given in open court in earlier criminal proceedings into a subsequent action for damages before the High Court or the CAT, the CMA must not disclose for use in civil proceedings any information it obtains in relation to an investigation into the criminal cartel offence in the UK (section 188, Enterprise Act 2002).

However, as considered further below, evidence of fact and expert evidence is typically admitted by parties before the High Court and the CAT.

High Court

The High Court has a general power to control evidence (CPR Part 32.1). In proceedings before the High Court, the general rule is that any fact which needs to be provided by witness evidence is to be proved (CPR Part 32.2(1)):

  • At trial, by oral evidence given in public.

  • At any other hearing, by evidence in writing.

Where a party intends to rely on a witness statement in relation to any issues of fact to be decided at trial, the court will order that party to serve the witness statement on the other parties in the proceedings (CPR Part 32.4(2)). If a party has served a witness statement, and wishes to rely at trial on the evidence of the witness made in the statement, the witness must be called to give oral evidence (unless the court orders otherwise, or the witness statement is admitted as hearsay evidence) (CPR Rule 32.5(1)).

Where a witness is called to give oral evidence at trial:

  • Their witness statement will stand as their "evidence in chief", unless the court rules otherwise (CPR Rule 32.5(2)).

  • They may be cross-examined on their witness statement (CPR Rule 32.11).

With the court's permission, a witness may amplify their witness statement and give evidence in relation to new matters occurring since the provision of their witness statement (CPR Rule 32.5(3)). While the majority of witnesses appear voluntarily, a witness may be required to attend court to give evidence where a witness summons is issued (CPR Part 34.1(a)).

CPR Part 35 addresses the provision of expert evidence in proceedings before the High Court, and seeks to:

  • Limit expert evidence to that which is reasonably required to resolve the proceedings.

  • Reinforce the impartiality required of an expert.

Expert evidence may only be provided with the permission of the court, and the overriding duty of the expert is to the court, rather than to any instructing party. Expert evidence is given in a written report, unless the court orders otherwise (CPR Part 35.5(1)). An expert will typically be cross-examined during proceedings.

CAT

The CAT has a general power to control evidence (Rule 21(1), CAT 2015). The CAT is required to consider whether it would be just and proportionate to admit or exclude evidence from proceedings, having regard to factors including whether the evidence is necessary for the CAT to determine the case (Rule 21(2), CAT 2015).

Unless the CAT directs otherwise, no witness can be heard without their witness statement or expert report having been submitted in advance of the hearing, and in accordance with any applicable directions (Rule 21(3), CAT 2015). The CAT can limit cross-examination of witnesses, as it considers appropriate (Rule 21(7), CAT 2015), and may dispense with the need for oral evidence where a witness statement or expert report has been submitted (Rule 21(6), CAT 2015). The CAT may require a witness to attend court to give evidence (Rules 22 and 56, CAT 2015).

For expert evidence, the CAT will take into account the principles and procedures outlined in CPR Part 35, including that expert evidence is to be limited to that which is reasonably required to resolve the proceedings. Therefore, a party seeking to rely on expert evidence must satisfy the CAT that this evidence is admissible and relevant.

 

Available defences

35. Is a "passing-on" defence available?

While a passing-on defence has yet to be considered in detail in a final judgment of the High Court, the CAT has confirmed that defendants are able to advance a passing-on defence (Sainsbury's Supermarkets Limited v MasterCard Inc. & Others [2016] CAT 11 (however, permission to appeal the judgment is being sought at the time of writing).

In Sainsbury's Supermarkets Limited v MasterCard Inc & Others, the CAT held that the legal definition of a "passed-on cost" is an identifiable price increase by a firm to its customers where the price increase is causally and demonstrably connected to the overcharge resulting from the infringement.

On the basis of this definition, the CAT held that a passing-on defence could only succeed where the defendant has shown on the balance of probabilities that there exists another class of claimant that both:

  • Is downstream of the claimants.

  • Has had the overcharge passed-on to it.

On the facts of the case, the CAT held that the defendants' passing-on defence could not succeed. In particular, the CAT found that the defendants could not identify:

  • Any increase in Sainsbury's pricing, let alone a price increase causally and demonstrably connected to the infringement.

  • Any purchaser, or class of purchaser, to whom the overcharge was passed-on by Sainsbury's, and who would be in a position to claim damages.

In addition to the approach taken by the CAT, the Antitrust Damages Directive makes specific provision for the existence of a passing-on defence, requiring that a defendant must to able to advance such a defence in respect of all or part of any overcharge, with the burden of proof on the defendant (Article 13, Antitrust Damages Directive). At the time of writing, the UK government has indicated that it intends to amend the Competition Act to provide for this specific passing-on defence in the context of claims arising from infringements of UK competition law.

 
36. Are any other defences available?

Depending on the facts of the case, a number of different defences can be advanced in the context of actions for damages, including that:

  • The conduct that is the subject of the claim is capable of benefitting from:

  • exemption, in the case of a restrictive arrangement or cartel; or

  • objective justification, in the case of an alleged abuse of a dominant position.

  • The claimant is precluded from bringing the claim for damages by virtue of its own significant responsibility for the actual or alleged infringement of competition law that is the subject of the claim.

 

Available remedies

37. Are damages available, and if so, on what basis are damages awarded?

Damages

In England and Wales, damages in respect of tortious breach have generally been held to be compensatory (that is, to put the claimant in the position it would have been had the wrongful act not been committed, and which may include the claimant's lost profits). While restitutionary damages could at least in theory be awarded in specific cases, such damages have not been awarded by the High Court or the CAT to date.

In relation to exemplary damages, these are not available in collective proceedings before the CAT (section 47C(1), Competition Act). However, outside of the context of collective proceedings:

  • The High Court has previously considered that the award of exemplary damages was inappropriate in the circumstances of a case in which the defendant was the "whistleblower" in respect of a cartel, and had received immunity from financial penalties (Devenish Nutrition Ltd v Sanofi-Aventis SA (France) & Others [2007] EWHC 2394 (Ch)).

  • The CAT awarded exemplary damages in an action resulting from a finding of an abuse of dominance in which the defendant was not an immunity applicant, and had not been the subject of a financial penalty with respect to the abusive conduct (2 Travel Group plc (in liquidation) v Cardiff City Transport Services Ltd [2012] CAT 19).

The Antitrust Damages Directive clarifies the position regarding the availability of damages, requiring that persons suffering harm as a result of an infringement of EU competition law (Article 3, Antitrust Damages Directive):

  • Must be able to obtain full compensation to put them in the position in which they would have been but for the infringement, including compensation for actual loss and loss of profit, plus interest.

  • Must not be overcompensated, meaning that exemplary damages may not be awarded.

The UK government intends for there to be a single regime in relation to actions for damages (see Question 6), meaning it will no longer be possible to obtain exemplary damages for breaches of EU and/or UK competition law.

Interest

Interest can be awarded in relation to damages. The basis on which interest is awarded will be dependent on the facts of each case, but parties may claim interest on a range of bases, including on a compound basis.

 
38. How are damages quantified?

While the Commission has published guidance for quantifying harm in actions for damages arising from infringements of Article 101 or 102 TFEU, this guidance is not binding on the courts of member states. Further, the Antitrust Damages Directive makes clear that member states are to determine their own rules on quantifying harm, with member states and national courts determining the requirements that a claimant must satisfy to prove the harm suffered (recital 46, Antitrust Damages Directive).

Both the High Court and the CAT have experience of considering factual and expert evidence in relation to quantifying harm suffered as a result of a tortious breach, and in determining the level of damages that are appropriate to provide adequate compensation in each case. However, no clear evidential preference has emerged in relation to quantifying damages. Assessment of damages can vary from consideration of complex econometric evidence adduced by expert economists, to narrative evidence put forward by witnesses of fact as to questions such as setting of prices by the claimant, and the issue of pass-on, or indeed may be a combination of both. In part, this may be due to the fact that the evidence available in the context of each claim will vary, meaning that it is not possible to adopt a single approach to quantifying damages by category of infringement. Moreover, the CAT in particular has previously reserved its position to interpret expert economic evidence in light of its own assessment of the case, stating that "[i]t is for the Tribunal – based upon the factual evidence – to make an assessment of what would have happened in the counterfactual scenario, and this may very well involve re-working calculations done by the experts or adopting an approach which – although it draws on the work of both experts – adopts neither approach completely" (2 Travel Group plc (in liquidation) v Cardiff City Transport Services Ltd [2012] CAT 19, paragraph 397).

In the context of collective proceedings, the CAT is not required to determine the damages to be awarded in respect of each individual claim. Instead, the CAT is able to make an aggregate award of damages in respect of the class as a whole, or in respect of smaller sub-classes (with the CPO amended as required). If it is not possible to award damages on this basis, the CAT may order the quantification of damages to proceed as individual issues in respect of each claim (Rule 88(2)(c), CAT 2015). In the event that the CAT makes an aggregate award of damages, it will give directions in relation to how the distribution of this award is to be made to each individual claim (Rule 91(1), CAT 2015), and may require that it approves any subsequent apportionment.

 
39. Are any other remedies available?

In England and Wales, both the High Court and the CAT are able to grant injunctive relief as a final or interim remedy (see Question 20). While only the High Court is presently able to grant declaratory relief (for example, that an activity does, or does not, infringe EU and/or UK competition law), at the time of writing the UK government is consulting on a proposal to enable the CAT to grant declaratory relief.

 

Appeals

40. Is it possible to appeal the judgment of the relevant court or tribunal?

Appeals may be made on points of fact or law from either the High Court or the CAT to the Court of Appeal, either with the permission of the relevant first instance venue, or the appellate court. Further, an appeal may be made from the Court of Appeal to the Supreme Court on points of law of general public importance, where permission has been obtained from either court.

In collective proceedings, appeals are limited to:

  • Points of law arising from decisions of the CAT:

    • awarding damages or some other sum (other than costs or expenses);

    • granting an injunction; or

    • finding an infringement in stand-alone claims.

  • Decisions as to the award of damages.

Appeals in collective proceedings can only be brought by the relevant class representative, or by a defendant party.

 

Reforms

41. Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?

The UK government is due to implement the provisions of the Antitrust Damages Directive by 27 December 2016. The UK government intends for the provisions of the Antitrust Damages Directive to apply to infringements of UK competition law, as well as to infringements of EU competition law (see Question 6), giving rise to a single regime for private antitrust litigation in England and Wales. The UK government is also seeking to introduce reforms to align the jurisdictions of the High Court and the CAT (see Question 1), and to ensure that remedies available before the High Court are also available before the CAT (see Question 39).

On 23 June 2016, the UK held a non-binding public referendum on its membership of the EU. The outcome of referendum was in favour of the UK leaving the EU on the basis of a simple majority. At the time of writing, it is not known if the UK does leave the EU, when it will leave, and what form the UK's subsequent relationship with the EU will take.

 

Online resources

British and Irish Legal Information Institute

W www.bailii.org

Description. Website of the British and Irish Legal Information Institute, updated with judgments of the courts of England and Wales.

Competition Appeal Tribunal

W www.catribunal.org.uk

Description. Website of the Competition Appeal Tribunal, updated with case information and judgments.



Contributor profiles

Bernardine Adkins, Partner, Head of EU, Trade and Competition law

Gowling WLG (UK) LLP

T +44 370 733 0649
F +44 370 904 1099
E bernardine.adkins@gowlingwlg.com
W www.gowlingwlg.com

Professional qualifications. Solicitor, Senior Courts of England and Wales; Member of the Brussels Bar, Liste E

Areas of practice. EU, trade and competition law; litigation.

Non-professional qualifications. LLB (Hons), Law, Bristol University; DHEE, College of Europe, Bruges

Recent matters

  • Acting for Dixons Retail in bringing claims for damages against MasterCard entities before the High Court and the CAT.
  • Acting for Thai Airways in defending contribution claims for damages before the High Court arising from the European Commission's infringement decision concerning air cargo.
  • Acting for a manufacturer in defending a substantial claim for damages before the High Court arising from a European Commission infringement decision in relation to feed inputs.
  • Acting for a manufacturer in defending a contribution claim for damages before the High Court arising from the European Commission's infringement decision in relation to copper fittings.

Languages. English; French

Professional associations/memberships

  • Member of the Advisory Board of the Competition Law Forum at the British Institute of International and Comparative Law.
  • Member of the Board of Competition Law Insight.
  • Member of the Competition Policy Committee of the American Chamber of Commerce to the European Union.
  • Member of the Competition Section of the Law Society of England and Wales.

Publications

  • Private Antitrust Litigation Global Guide (1st and 2nd editions), published by Sweet & Maxwell (1st edition) and Thomson Reuters (2nd edition), contributing author and general editor.
  • Cartels & Leniency (2016) published by ICLG, contributing author.
  • Cartels (1st edition) published by Chambers & Partners, contributing author.
  • Merger Control – Jurisdictional Comparisons (1st and 2nd editions), published by Sweet & Maxwell, contributing author.
  • Air Transport and EU Competition Law (1st edition), published by Sweet & Maxwell, author.

Samuel Beighton, Director, EU, Trade and Competition law

Gowling WLG (UK) LLP

T +44 20 3636 7972
F +44 370 904 1099
E samuel.beighton@gowlingwlg.com
W www.gowlingwlg.com

Professional qualifications. Solicitor, Senior Courts of England and Wales; Admitted to the Roll of Solicitors in the Republic of Ireland

Areas of practice. EU, trade and competition law; litigation.

Non-professional qualifications. PgDip, Economics for Competition Law, King's College London, 2016; PgDip, EU Competition Law, King's College London, 2009; PgDip in Legal Practice, BPP University Law School (2006); PgDip in Law BPP University Law School (2005); BA Hons, History of Art, University of Birmingham, 2004

Recent matters

  • Acting for a manufacturer in defending a substantial claim for damages before the High Court arising from a European Commission infringement decision in relation to feed inputs.
  • Advising various retailers in relation to bringing claims for damages against payment system operators before the High Court and the CAT arising from decisions adopted by the European Commission.
  • Acting for a major technology company in defending claims alleging competition law infringements in the context of patent litigation before the High Court.

Professional associations/memberships

  • Member of the Competition Policy Committee of the American Chamber of Commerce to the European Union.
  • Member of the Competition Section of the Law Society of England and Wales.

Publications

  • Private Antitrust Litigation Global Guide (1st and 2nd editions), published by Sweet & Maxwell (1st edition) and Thomson Reuters (2nd edition), contributing author and general editor.
  • Cartels (1st edition) published by Chambers & Partners, contributing author.
  • Merger Control – Jurisdictional Comparisons (1st and 2nd editions), published by Sweet & Maxwell, contributing author.

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