I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY

England and Wales saw another busy year for private antitrust litigation in 2018,2 with a number of important developments, including the first judgment in a follow-on cartel damages claim (previous follow-on claims have all settled before judgment). There were no major legislative developments, with the rules implementing the EU Competition Damages Directive having already entered into force in 2017.3

One of the most significant developments of the year was the judgment of the High Court in BritNed v. ABB.4 This was important in particular because of the judge's approach to the calculation of BritNed's loss, and his treatment of the expert evidence – issues that send important signals for future claims.

BritNed operates the BritNed interconnector, a 1,000MW undersea cable connecting the GB and Dutch systems. BritNed procured the cable element of the interconnector from ABB. In April 2014, the European Commission issued a decision in the Power Cables case, fining international manufacturers of high-voltage power cables €302 million for taking part in a cartel that shared markets and allocated customers between them from 1999 to 2009. ABB was the successful immunity applicant, and did not appeal against the Commission's decision.

BritNed claimed damages for the loss suffered under three heads:

  1. overcharge: BritNed argued that the price that it paid for the cable was higher than it would have been in the absence of the cartel;
  2. lost profit: in the absence of the cartel, BritNed would have bought a cable of higher capacity (1,320MW rather than 1,000MW), which would have generated greater revenue and profits; and
  3. interest: as a result of the overcharge, BritNed incurred higher capital costs in commissioning the interconnector, and claimed compound interest.

The judge made some interesting initial observations about the approach to calculating damages. First, while the fact of the damage caused by a cartel must be established on the balance of probabilities (the English standard of proof in civil cases), the measure of the loss takes into account a wide range of risks and possibilities, and the court may take a 'broad brush' approach and adopt various estimates, assumptions and approximations. Secondly, the loss that the court was required to assess was the difference between the price agreed between BritNed and ABB and the price that would have been agreed – whether with ABB or another supplier – in the absence of the cartel. Thirdly, while the judge was prepared to bridge gaps in the evidence with his broad brush, he rejected BritNed's invitations to draw adverse inferences from the absence of material, and also to presume that harm had resulted from the infringement (the claim predated the requirement in the Competition Damages Directive to make such a presumption).

BritNed's economic expert compared the price of projects during the cartel with the price of projects after the cartel. The judgment explains clearly and thoroughly the economic and statistical analysis used, also drawing on the European Commission's staff working document on quantifying harm. BritNed's expert estimated the overcharge at 25.4 per cent. In contrast, ABB's expert compared the price of BritNed alone with the price of other projects after the cartel, focusing in particular on ABB's costs of supply. He found no overcharge.

The judge preferred ABB's approach to BritNed's. He noted that the approach adopted by BritNed's expert was significantly more complicated than that of ABB's expert, and therefore inherently more prone to error. It relied heavily on proxies rather than actual figures because of concerns about the reliability of ABB's costs.

Although the judge concluded that some individuals within ABB knew of the cartel and knew that ABB would face limited competition when tendering for BritNed, that knowledge did not translate into a direct influence on the direct costs of the project, which were compiled honestly and competently with a view to putting together a competitive bid. While those involved in the cartel had the opportunity to influence the common costs, in fact critical pricing decisions were taken by an individual who, the judge was satisfied, was not aware of the cartel and who priced the project competitively. However, the judge concluded that the effect of the cartel was to insulate ABB from inefficiencies in its own product. Had there been a properly competitive environment, ABB would have faced technical solutions from others involving less copper and perhaps less insulation. This 'baked-in inefficiency' resulted in an overcharge, corresponding to the cost of the additional copper that ABB would have absorbed to retain the bid. The appropriate measure of this overcharge was 15 per cent of the cost of the copper. This amounted to some €7.5 million. The judge then found a further overcharge in the form of a saving in ABB's costs resulting from the cartel, amounting to a further €5.5 million. The court later reduced this figure to a total of €11.7 million, reflecting the risk of overcompensation due to BritNed's regulatory arrangements. Each party was required to bear its own costs: although the usual rule is that the loser pays the winner's costs, in this case BritNed's award was significantly less than it had claimed (around €180 million).

BritNed claimed compound interest on the basis that it had incurred higher capital costs than it would have done in a competitive market. ABB countered that this loss was not BritNed's but that of its parents, who had provided the funding. The judge accepted ABB's argument, but awarded simple interest to BritNed.

The judgment offers encouragement to both claimants and defendants, and will be perused very carefully in future claims. Both parties intend to appeal, and other claims in respect of the same cartel are still pending.

Throwing a lifeline to the prospects of further collective competition claims after they were damaged by the refusal of collective proceedings orders in the first two applications, the Court of Appeal ruled5 in November that it had jurisdiction to hear an appeal against one of these judgments. This was the judgment of the Competition Appeal Tribunal (CAT) in Walter Merricks v. Mastercard,6 refusing to issue a collective proceedings order in a claim involving credit card multilateral interchange fees. The proposed class included all persons who had, between 22 May 1992 and 21 June 2008, bought goods or services from businesses selling in the UK that accepted Mastercard (and who also satisfied a couple of other conditions). The value of the claim was stated to be £14 billion. In this case, the CAT had concerns about the breadth of the class: there would be so many variations in the extent of pass-through that it would not be an issue common to all members of the class. The CAT was also concerned about the methodology for calculating the compensation to which each member of the class would be entitled: it would inevitably result in significant under or over-payment to any given member of the class. The CAT also provided guidance on the proposed funding arrangements.

The CAT refused leave to appeal on the basis that a judgment refusing a collective proceedings order was not a judgment 'as to the award of damages' for the purposes of Section 49(1A)(a) of the Competition Act 1998, which lists those categories of judgment capable of appeal. The Court of Appeal held that it was, and the appeal will go ahead in 2019.

The Court of Appeal addressed another important issue in its iiyama judgment in February 2018.7 This was an appeal against two judgments of the High Court, both in claims brought by computer monitor manufacturer iiyama against members of the LCD and CRT cartels. Iiyama bought cathode ray tubes (CRTs) and liquid crystal display (LCD) panels outside the EU and incorporated them into monitors, also outside the EU, before supplying them to the claimant subsidiary companies within the EU, which sold them on to resellers within the EU. The High Court had doubts as to whether iiyama's losses fell within the scope of Article 101 TFEU. In the CRT claim, it held that the cartel was not implemented within the EU for the purposes of the Woodpulp test,8 and that the conduct had no 'substantial and immediate effect' within the EU for the purposes of the Gencor test.9 In the LCD claim, it held that there was no EU implementation of the cartel in relation to the sales of CRTs outside the EU.

The Court of Appeal relied heavily on the judgment of the European Court of Justice in the Intel case in September 2017.10 It noted that:

Intel is an important decision in the context of the present cases, and that it provides substantial support for the argument that a worldwide cartel which was intended to produce substantial indirect effects on the EU internal market may satisfy the qualified effects test for jurisdiction. Whether or not the test is satisfied will depend on a full examination of the intended and actual operation of the cartel as a whole. Such an examination can only take place in light of the full facts as they emerge and are assessed at trial. The exercise is not one suitable for summary determination on the basis of assumed facts.

The Court of Appeal also held that it was:

at least arguable with a real prospect of success that intended effects within the EU internal market of a worldwide cartel fall within the scope of Article 101, and that the production of such effects on the EU market, if substantial and of a systemic nature, may properly be characterised as immediate effects of the offending agreements.

The fact that the sales within the EU came at the end of a chain of sales outside the EU was not necessarily an obstacle to the claim.

The Court of Appeal found in favour of the claimants. The claims will therefore proceed.

Resolving another conflict between judgments at first instance, the Court of Appeal ruled in July on a series of appeals pitching merchants against card issuers.11 It held that their interchange fee arrangements constituted restrictions of competition. The correct counterfactual was that there was no default multilateral interchange fee (MIF) and that there was instead no or a zero rate MIF. The Court of Appeal also remitted back to the courts the question of whether the conditions for exemption were satisfied. It also commented (although not as a binding part of the judgment) that it believed that it was not necessary, to establish pass-on, to identify other claimants to whom the overcharge had been passed on. The level of damages will now be assessed by the first instance courts.

ii GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT

It has long been accepted that those who have suffered loss as a result of competition law infringements are entitled to claim damages. The House of Lords acknowledged the possibility of damages for breaches of competition law in 1984 in Garden Cottage Foods v. Milk Marketing Board.12 In 2002, the Enterprise Act 2002 inserted Section 47A into the Competition Act 1998, giving the CAT (a specialist competition tribunal that already heard appeals against decisions of the competition authorities) the power to hear follow-on damages claims based on infringement decisions of the European Commission and the UK competition authorities. Section 47B of the Competition Act 1998 also provided for limited opt-in collective claims brought by certain designated representative bodies on behalf of consumers. A number of claims under Section 47A followed. However, this procedure had a relatively low level of uptake because of deficiencies in the drafting of the legislation and rules that limited the scope of Section 47A to strict follow-on claims, and that created very restrictive limitation rules. Claims were constrained by the 'clearly identifiable findings of infringement' in the underlying decision of the competition authority and could not be based on any sort of inference from a decision.

As claimants often wish to claim that an infringement went on for longer, or was wider in scope, than expressly found in an infringement decision, this was a significant restriction of the usefulness of the CAT. The Court of Appeal also held that claimants could not bring proceedings against defendants that were not specifically named as addressees of a decision, which presented a further obstacle to claims as it is often useful to be able to claim against other members of corporate groups in order to anchor jurisdiction in the UK.13 Claimants had a period of two years after the end of appeal proceedings in respect of the underlying decision, or after the date on which the cause of action accrued, if later, in which to bring their claims.

Meanwhile, the High Court had become one of the most popular forums in Europe for competition damages claims following cartel decisions of the European Commission. Claims in the High Court are brought under the common law jurisdiction of the Court, generally as claims for breach of statutory duty.14 They were subject to the standard six-year limitation period under the Limitation Act 1980. However, the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 have now implemented the relevant provisions of the Competition Damages Directive. They inserted Section 47F into the Competition Act 1998, which in turn introduced a new Schedule 8A to the Act. Paragraphs 17 to 26 of Schedule 8A set out the new rules on limitation periods. They differ in a number of important respects from the general rule in England and Wales, set out in the Limitation Act 1980. The general rule under the Limitation Act 1980 is that the limitation period starts when the cause of action accrued. However, where the defendant deliberately concealed from the claimant any fact relevant to the claimant's right of action, the limitation period does not start to run until the claimant has discovered the concealment or could with reasonable diligence have discovered it. For competition claims, while Paragraph 19 introduces rules that are very similar to those set out in the Directive (under which time does not start to run until the claimant first knew or could have known of certain specified facts relating to the infringement), it also introduces the other key requirement of the Directive: namely, that the limitation period does not start until the infringement has ceased. In its judgment in Arcadia v. Visa15 in 2015, the Court of Appeal held that a claim by retailers in respect of losses resulting from credit card interchange fees was out of time in respect of losses suffered before 2007 (six years before the date of the claim) because sufficient facts to allow the claimants to plead their claim were available to them before that date. The Court of Appeal concluded that the Directive did not have retrospective effect, but it appears that had it done so, the entirety of the claim might still have been in time (because the infringement continued until less than six years before the date on which the proceedings were started). As such, Paragraph 19(1)(a) has potentially far-reaching effects. Paragraphs 20 to 25 set out a number of situations in which the limitation period is suspended, including while an investigation by a competition authority is ongoing, while a consensual dispute resolution process is in progress and while collective proceedings are pending.

In 2015, the provisions of Chapter 2 of Part 3 of the Consumer Rights Act 2015 entered into force. They amended Sections 47A and 47B, and introduced Sections 47C to 47E and 49A to 49E, of the Competition Act 1998. They introduced a number of refinements to proceedings before the CAT. First, Section 47A extended the jurisdiction of the CAT to permit stand-alone as well as follow-on claims, addressing one of the key concerns about the previous arrangements. However, Section 47A provided only a partial fix, because there remains some doubt as to whether it provides for stand-alone claims for infringements occurring before 1 October 2015. Secondly, Section 47E aligned limitation periods in the CAT with those in the High Court. Thirdly, Section 15A of the Enterprise Act 2002 provided for fast-track competition claims where one of the parties is a small or medium-sized business and the claim is relatively straightforward.16 Fourthly, Section 47B introduced collective competition damages claims. These were intended to resolve the obstacles faced by small claimants bringing claims individually. Section 47B introduced the possibility of both opt-out and opt-in collective proceedings (where all those falling within an identified class of potential claimants are included in the claim unless they opt out, or where the claim is brought on behalf only of those claimants who have expressly chosen to participate, respectively). In both cases, the claim is brought on behalf of the claimants by a representative.

The CAT must certify a claim before it proceeds. The certification process considers the suitability of the class representative who brings the claim on behalf of the class. The CAT Rules set out a number of factors that the CAT must take into account in assessing the suitability of the representative, including whether he or she will act adequately and fairly in the interests of the class, and whether there is a conflict of interest. In practice, the CAT has also considered the level of remuneration of the representative, and the arrangements with the funders.17

The CAT must also consider whether the claims 'raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings' (Section 47B(6) Competition Act 1998). This is the central issue in the ongoing Merricks v. Mastercard proceedings, now on appeal following the refusal by the CAT to issue a collective proceedings order.

iii EXTRATERRITORIALITY

Conduct and agreements that affect trade within the UK, or that affect trade between EU Member States, are capable of infringing the UK and EU competition rules, respectively,18 wherever the undertakings engaging in the conduct or entering into the agreements are located.

In practice, one of the key battlegrounds in private enforcement in the English courts has been the extent to which foreign defendants can be sued in the English courts for losses resulting from international cartels. This issue remained the subject of litigation before the English courts in 2018, addressed both in the judgment of the Court of Appeal in iiyama (see Section I), on the subject of the circumstances in which purchases of cartelised products outside the EU can be said to fall within the scope of Article 101 of the Treaty on the Functioning of the European Union (TFEU), and in Vattenfall v. Prysmian.19 In the latter, the High Court rejected an application to strike out another claim following the Commission's High-Voltage Cable cartel decision, on the basis that there was a realistic prospect that the UK anchor defendants had knowingly implemented the cartel through sales of the cartelised products and the provision of support in respect of the sale of cartelised products. The judgment usefully develops the principles established some years previously in Cooper Tire and Rubber v. Dow and others20 and KME Yorkshire and others v. Toshiba Carrier and others.21

iv STANDING

Any person suffering loss as a result of an infringement of competition law has standing to bring a claim.22 It was clear even before implementation of the EU Competition Damages Directive that, subject to issues of causation, pass-through, etc., both direct and indirect purchasers from infringing parties could claim damages for their loss resulting from an infringement. This is now confirmed in the UK rules implementing the Directive, which set out the treatment of pass-through in the case of both direct and indirect purchasers. In accordance with the Kone judgment of the European Court of Justice,23 a number of proceedings in the English courts have included claims for umbrella losses: overcharges resulting from non-members of a cartel increasing their prices in line with the 'market' price set by cartel members. Class representatives in collective proceedings, once certified by a collective proceedings order, have standing to claim on behalf of all members of the class even if they do not themselves fall within the class.

v tHE PROCESS OF DISCOVERY

The introduction, in Article 5, of a requirement for disclosure of relevant evidence was an important and novel aspect of the Competition Damages Directive in most EU Member States. However, disclosure in English court proceedings is well-established and extensive (and has historically been one of the main attractions of the English courts in competition damages proceedings), going some way towards addressing the information asymmetry that claimants commonly encounter. Schedule 8A of the Competition Act 1998, which implements the Directive in English law, therefore introduced no additional disclosure requirements, as the implementing rules did in most other Member States. Instead, it is concerned chiefly with setting out the exceptions to disclosure, reflecting the requirements of Articles 6 and 7 of the Directive, in the case of leniency and settlement materials, and other materials generated during the course of an investigation by competition authorities. These rules are set out in Paragraphs 27 to 35 of Schedule 8A.

The basic principle in English litigation is that each party must carry out a reasonable search for material currently or previously under its control that supports or is adverse to its case. It must disclose those documents by exchange of lists to the other party and then, subject to exceptions for privilege, must provide copies of those documents and allow the other party to inspect any original documents.24 In follow-on private competition claims in the English courts it is very common for the parties to seek disclosure of specific categories of documents, for example documents provided to competition authorities, at an earlier stage than would usually be the case. The judgment in National Grid v. ABB25 provides a good example of this. There is also scope for the parties to request further information from each other in relation to issues set out in their pleadings. In addition, it is possible, subject to certain conditions, to obtain disclosure from third parties. The parties will also have to exchange detailed witness statements setting out the evidence that their witnesses will rely on at trial and upon which they will be cross-examined. There is no deposition process pretrial in English proceedings.

vi USE OF EXPERTS

The use of expert economic evidence is almost universal in private competition enforcement proceedings. Other experts are also often brought in, particularly in abuse of dominance cases, to testify as to the operation of a particular market or other technical issues.26

Although expert economists generally submit their reports when the proceedings are well advanced, it is common to involve them from the outset to provide initial advice on the scope and shape of a claim. In 2017, expert economists also appeared in the collective proceedings order hearings in the two collective actions that were heard. Their evidence was decisive in the determination of whether there were sufficient common issues as between the members of the class of prospective claimants to justify certifying the collective proceedings.27

While the standard arrangement is for each party to call its own expert witnesses separately, for them to be cross-examined by the other party's counsel, competition damages claims in the English courts are starting to see the emergence of hot-tub arrangements, in which each party's economists appear concurrently and are then questioned by both sets of counsel and by the judge, allowing their evidence to be more easily compared and tested.28 The court's assessment of the parties' expert evidence was central to the outcome of the BritNed v. ABB claim, described in Section 1.

vii CLASS ACTIONS

As explained in Sections I and II, collective proceedings for competition damages claims may be brought before the CAT. Collective proceedings are subject to certification by the CAT. If properly formulated, collective proceedings allow a much wider range of victims of anticompetitive activity to claim damages for their loss. Bringing individual claims would simply not be feasible for the value of loss typically suffered by an individual consumer. It is clear from the failure of the two collective claims to date (although the Merricks v. Mastercard claim is now being appealed) that there is and will remain a tension between increasing the efficiency of collective proceedings by framing a class as widely as possible, thereby increasing the number of members of the class, and ensuring that the class is not so wide that the issues in the claims are no longer common to all of the members of the prospective class. There are a number of other mechanisms for class actions available in the courts of England and Wales, including group litigation orders (GLOs) and representative actions (which are comparatively rarer than GLOs).

viii CALCULATING DAMAGES

Damages in private competition claims are intended to compensate for the loss resulting from an infringement of competition law. Nearly all competition damages claims to date have settled, with little or no visibility of the basis or extent of any damages agreed. However, the calculation of competition damages will typically involve an assessment of the counterfactual or 'but for' position: that is, what prices would have prevailed in the absence of the infringement. To assess what would have happened in the absence of a cartel, prices before and after the cartel period, prices of other comparable products, prices of raw materials or components, and the level of profitability of the cartel members will all be taken into account to build up a picture of the but for price. There will also generally be an assessment of the losses resulting from any reduction in sales resulting from increased prices, as well as of the run-off effect of the time taken for prices to return to a non-cartelised level after the end of the cartel. In Sainsbury's v. Mastercard,29 the CAT assessed the overcharge as the difference between the MIFs paid and the bilateral interchange fees that would have been paid in the counterfactual situation. In BritNed v. ABB,30 the High Court assessed the overcharge as the increased cost resulting from baked-in inefficiency (i.e., the fact of being shielded from more efficient competitors) and cost-savings.

There is no provision for multiple damages as seen in the US, for example. Exemplary or punitive damages are also not available. However, in contrast to the position in the US, interest on damages runs from the date when the loss was suffered. This may be many years before payment of any damages, and interest can therefore be a very significant component of any award.

ix PASS-ON DEFENCES

There is no pass-on defence in English law. The impact of any pass-on is assessed as part of the assessment of loss generally. The rules implementing the EU Competition Damages Directive set out the treatment of pass-on in claims by both direct and indirect purchasers (see Section I). Paragraphs 8 to 11 implement the provisions of Articles 12 to 15 of the Directive that set out rules relating to overcharges, underpayments and pass-on. They provide that, if the claimant was an indirect purchaser, once it has established that there was an overcharge or underpayment to a direct purchaser, the burden of proof lies on the defendant to prove that it was not passed on to the claimant. They also provide that the burden of proof lies on the defendant to prove that any overcharge or underpayment to the claimant was passed on to the claimant's customers. The English courts have already considered this latter aspect of pass-on,31 but Schedule 8A Competition Act 1998 is useful in its treatment of pass-on to an indirect purchaser claimant.

x FOLLOW-ON LITIGATION

By virtue of the principle first set out in the Masterfoods judgment of the European Court of Justice,32 and then codified in Article 16 of Regulation 1/2003, national courts may not take decisions 'running counter to the decision adopted by the Commission'. They must also 'avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated'. In the English courts, in National Grid v. ABB, for example, this principle was interpreted to mean that while the trial should not be fixed until three months after all appeals by the defendants against the Commission's decision had been determined, the parties should proceed with the exchange of pleadings, disclosure and other preparatory steps. A similar approach has been adopted in other cases since then.

The Competition Damages Directive and the UK implementing rules set out restrictions on the use of evidence developed in the course of European Commission investigations, and on the extent to which immunity recipients and other classes of participant in enforcement proceedings by competition authorities may be liable to pay damages in subsequent private damages claims.

xi PRIVILEGES

The English courts recognise legal advice privilege, covering advice by lawyers to their clients provided in a relevant legal context, and litigation privilege, covering communications between a client and a lawyer or between either of them and a third party where litigation is underway or reasonably in contemplation, which have been made for the dominant purpose of litigation. In its judgment in SFO v. ENRC 33 in September 2018, the Court of Appeal overturned the controversial and narrow approach taken by the High Court regarding the remit of litigation privilege in the context of a contemplated criminal investigation. It declined to rule on the scope of legal advice privilege (and specifically the restrictive rule in Three Rivers (No. 5),34 commenting that it is for the Supreme Court to decide this issue. Further clarification is to be hoped for; meanwhile, care should be taken in this area.

English law does not recognise joint work product defences as such. In some circumstances, two parties may have a joint interest in the subject matter of a privileged communication such that they may share the document without loss of privilege. Similarly, communications that are already subject to legal advice privilege or litigation privilege may in some circumstances be shared with a third party (in the context of private competition enforcement, typically a co-defendant) without automatically losing that privilege where the two parties have a common interest. Again, this is a complex area and specific advice should be sought.

xii SETTLEMENT PROCEDURES

Most competition damages claims before the English courts settle – some at an early stage and some at trial – with the result that there have only been two final judgments awarding damages in competition damages claims to date.35 Settlement is encouraged. Part 9 of Schedule 8A Competition Act 1998 implements the rules in the Competition Damages Directive on settlements, providing for the value of claims to be reduced by a settling infringer's share of the loss. It also prohibits non-settling defendants from seeking a contribution from the settling defendant, so an early settling defendant that settles for less than its share of any overall damages pot cannot then be required to indemnify defendants that settle or are ordered to pay a higher proportion later. This seems likely to incentivise early settlement.

xiii ARBITRATION

Competition damages claims can be, and are, the subject of arbitration and other forms of alternative dispute resolution. This may in some circumstances be agreed at the time a claim is first contemplated. In Microsoft v. Sony,36 the High Court stayed proceedings because it concluded that the dispute was covered by a pre-existing arbitration clause.

xiv INDEMNIFICATION AND CONTRIBUTION

The general principle is that liability for losses caused by infringement of the competition rules is joint and several, and that defendants may seeks contributions from each other. However, Schedule 8A Competition Act 1998, implementing the EU Competition Damages Directive, sets out rules that limit the liability of certain parties to make contributions.

xv FUTURE DEVELOPMENTS AND OUTLOOK

A key development that is certain to affect competition litigation in the English courts is Brexit. Estimates of its impact vary considerably, and are heavily dependent on the future relationship between the UK and the EU. The advantages of litigating in the English courts are sufficiently significant that claimants and their lawyers are likely to seek to continue to bring their claims in London. What legal routes are available to them will depend on the outcome of the current Brexit negotiations.


Footnotes

1 Peter Willis and Jonathan Speed are partners at Bird & Bird LLP.

2 England and Wales is a separate jurisdiction within the UK. The Scottish legal system has distinct laws and courts. The legal system and courts of Northern Ireland are much closer to those of England and Wales. This chapter addresses only the system in England and Wales.

3 The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017.

4 Britned Development Ltd v. ABB [2018] EWHC 2616 (Ch).

5 Merricks v. Mastercard Incorporated & Ors [2018] EWCA Civ 2527.

6 Walter Hugh Merricks CBE v. Mastercard Incorporated and Others [2017] CAT 16.

7 The LCD Appeals (iiyama and others v. Samsung and others) [2018] EWCA Civ 220.

8 Cases C-89/85 etc. Woodpulp (Ahlstrom Osakeyhtio v. The Commission) ECLI:EU:C:1988:447.

9 Case T-102/96 Gencor Ltd v. Commission ECLI:EU:T:1999:65.

10 Case C-413/14P Intel Corporation Inc v. Commission ECLI:EU:C:2017:632.

11 Sainsbury's v. Mastercard, Asda v. Mastercard and Sainsbury's v. Visa [2018] EWCA 1536 (Civ).

12 Garden Cottage Foods Ltd v. Milk Marketing Board [1984] 1 AC 130.

13 Emerson Electric Co & Others v. Mersen UK Portslade Ltd [2012] EWCA Civ 1559.

14 Although there have also been attempts to characterise such claims as various forms of conspiracy – with varying degrees of success.

15 Arcadia Group Brands Ltd & Ors v. Visa Inc & Ors [2015] EWCA Civ 883.

16 See, e.g., Socrates v. Law Society [2017] CAT 10, the first fast-track claim.

17 In Merricks v. Mastercard in Section I.

18 Sections 2 and 18 of the Competition Act 1998, and Articles 101 and 102 of the Treaty on the Functioning of the European Union.

19 Vattenfall v. Prysmian and NKT [2018] EWHC 1694 (Ch).

20 Cooper Tire & Rubber Company Europe Ltd & Ors v. Dow Deutschland Inc & Ors [2010] EWCA Civ 864.

21 KME Yorkshire Ltd & Ors v. Toshiba Carrier UK Ltd & Ors [2012] EWCA Civ 1190.

22 This is expressly provided, in the case of claims before the CAT, by Section 47A Competition Act 1998.

23 Case C-557/12 ÖBB-Infrastruktur AG v. Kone and others: ECLI:EU:C:2014:1317.

24 Civil Procedure Rules, Part 31.

25 National Grid Electricity Transmission Plc v. ABB Ltd & Ors [2012] EWHC 869 (Ch).

26 See for example the useful description of the expert witnesses relied on in paragraphs 47 to 49 of Streetmap EU Limited v. Google Inc and others [2016] EWHC 253 (Ch).

27 See Gibson v. Pride [2017] CAT 9 and Merricks v. Mastercard, footnote 6.

28 First used in the High Court in Streetmap v. Google [2016] EWHC 253 (Ch); a hot-tub arrangement was also employed in the CAT in Socrates v. Law Society, see footnote 16.

29 See Section I and footnote 11.

30 Footnote 4.

31 Most recently in the credit card appeals: see footnote 11.

32 Case C-344/98 Masterfoods Ltd v. HB Ice Cream Ltd: ECLI:EU:C:2000:689.

33 The Director of the SFO v. Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006.

34 Three Rivers District Council & Others v. The Governor and Company of the Bank of England [2003] EWCA Civ 474.

35 Sainsbury's v. Mastercard, footnote 11 and BritNed v. ABB, footnote 4.

36 Microsoft Mobile OY (Ltd) v Sony Europe Ltd & Others [2017] EWHC 374 (Ch).