Competition Section annual conference 2016
Plenary 5 –
Competition litigation
Omar Shah, Morgan Lewis & Bockius UK LLP (Chair)
Kim Dietzel, Herbert Smith Freehills LLP
Lambros Kilaniotis, RPC
Tim Ward QC, Monckton Chambers
Outline
– Overview
• Consumer Rights Act 2015
• Damages Directive (2014/104/EU)
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Jurisdiction
Forum & type of claim
Cause of action
Limitation
Disclosure
Damages
Q&A
Jurisdiction
– Brussels Regulation (1215/2102)
• Article 4: sue in state of Def’s domicile
• Article 7(2): in tort where the harmful event occurred.
• Article 8: in the state a co-Def is domiciled if the claims are
so closely connected it is expedient to hear them together
to avoid the risk of irreconcilable judgments.
• CDC Hydrogen Peroxide
• Liability of whole undertaking: Provimi/Cooper
Tire/Toshiba Carrier [2012] EWCA Civ 1190
– Choice of forum: claimant and defendant considerations
– Jurisdictional challenges
• Dixons v Mastercard [2015] EWHC 3673 (Ch)
Forum & type of claim (1)
– High Court v CAT
• Where to sue
– Key factors for claimants
– Transfers
» Sainsbury's v MasterCard 2015 EWHC 3472 (Ch)
» Sainsbury's v MasterCard 1241/5/7/15 (t) (CAT)
– Parallel proceedings
» Peugeot Citroen Automobiles UK Ltd and Others v
Pilkington Group Limited and Others, 1244/5/7/15 (CAT)
High Court HC-20140001072
– Interplay with on-going regulatory proceedings
» Streetmap.EU Ltd v Google Inc [2016] EWHC (Ch)
• Type of claim
– Individual claims / groups of claimants
– Collective proceedings
Forum & type of claim (2)
– Stand-alone claims in commercial disputes
• Applications for interim injunctive relief in the High Court
– Arriva the Shires Ltd v London Luton Airport Operations Ltd
([2014] EWHC 64 (Ch))
– Dahabshiil Transfer Services Limited v Barclays Bank plc and
Harada Limited and Berkeley Credit And Guarantee Limited v
Barclays Bank plc ([2013] EWHC 3379 (Ch))
– Packet Media Ltd v Telefonica UK Ltd ([2015] EWHC 2235
(Ch), [2015] EWHC 3873 (Ch))
• Applications for fast-track treatment in the CAT
– NCRQ Ltd v Institution of Occupational Safety and Health
– Shahid Latif & Mohammed Abdul Waheed v Tesco Stores
Limited
Cause of action
– Breach of the CA98 or Arts 101/102 TFEU is a statutory
tort
– Necessary to prove at least some harm, even on a liability
trial: Arriva the Shires Ltd v London Luton Airport
Operations Ltd [2013] EWHC 2725 Ch
– To prove losses outside the scope of EU competition law,
another cause of action is needed:
• foreign law tort?
• Interfering with business by unlawful means/conspiracy to
injure using unlawful means.
• Is it necessary to prove intent to injure these claimants?
– Air Cargo [2015] ECWA Civ 1024
– WH Newson v IMI [2013] EWCA Civ 1377
Limitation (1)
– Limitation in the High Court
• Sections 2 and 9 of Limitation Act 1980 (the 1980 Act)
• Section 32(1)(b) of the 1980 Act “..any fact relevant to the
plaintiff's right of action has been deliberately
concealed..”
• Arcadia Group Brands Ltd. v Visa Inc [2014] EWHC 3561 and
Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883
• A "fact relevant to the plaintiff's right of action" within
section 32(1)(b) is a fact without which the cause of action is
incomplete.
Limitation (2)
– Limitation in the CAT
• “For the purpose of identifying claims which may be made
in civil proceedings, any limitation rules or rules relating
to prescription that would apply in such proceedings are to
be disregarded” (Section 47A(4) Competition Act 1998)
• “…In the case of proceedings in England and Wales, the
Limitation Act 1980 applies as if the claim were an action
in a court of law…” (Section 47E(2)(a) Competition Act
1998)
– Does not apply in relation to claims arising before 1 October
2015 (Schedule 8, paragraph 8(2), Consumer Rights Act 2015)
– Rule 119 Competition Appeal Tribunal Rules 2015
Limitation (3)
Rule 119,
CAT Rules
2015
Rule 31,
CAT Rules
2003
s47A(7)(8)
CA98
Limitation (4)
– Limitation under Art 10 of the Damages Directive
• MS to lay down limitation rules, but
• Shall not begin to run before the infringement of
competition law has ceased and the claimant knows, or can
be reasonably expected to know: of the behaviour and the
fact that it constitutes an infringement; the fact it caused
harm to it; the identity of the infringer
• Limitation must be at least 5 yrs
• Suspended by competition authority action until at least a
year after it ends.
• Time does not run during consensual dispute resolution
process for the parties involved: Art 18.
• BIS proposed approach: no change to periods; “copy-out the
provisons” as to when limitation begins
Disclosure (1)
– Disclosure regime in the High Court and the CAT
– Access to Commission documents
• Case T-534/11 Schenker v Commission, 7 October 2014.
– Access to leniency materials:
• Case C-360/09 Pfleiderer [2011] ECR I-0000.
• National Grid [2012] EWHC 869 Ch
– Redactions of references to non-addressees, and allusions
to infringements where there is no finding capable of
challenge
• Art 48 of the Charter: presumption of innocence.
• T-474/04 Pergan [2007] ECR II-4225.
• Air Cargo [2015] ECWA Civ 1024: Pergan protection is
absolute, cannot be overridden by disclosure into a
confidentiality ring
Disclosure (2)
– Impact on litigation strategy
– Impact of Damages Directive
• Article 5 – disclosure requirements
– Reasoned justification
– Proportionality assessment
– Confidentiality
• Article 6(6)
– Absolute protection for leniency statements and settlement
submissions
• Article 6(5)
– Temporary protection for “grey listed” documents within the
file of the competition authority
Damages
– Quantification of damages
• Quantification in practice
• Case C-557/12 Kone AG and others v ÖBB-Infrastruktur AG
• Impact of the Damages Directive
– Article 17(1) – power to estimate
– Article 17(2) – rebuttable presumption of harm in respect of
cartel infringements
– Passing-on
• Pass-on in practice
• Impact of the Damages Directive
– Article 13 – passing-on defence
– Article 14 – indirect purchaser claims
Damages
– Damages in collective actions: CAT Rules 2015:
• R92: CAT shall give directions for assessment of how
aggregate award may be claimed by individuals, e.g.:
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a method or formula for quantification;
provision for interim payment;
the appointment of a third party to determine a dispute
a requirement that apportionment is approved by the Tribunal
• R93: in opt-in proceedings, CAT shall make an order
providing for damages to be paid to the class representative
or such other person as the CAT thinks fit
– CAT may make such an order in opt-in
Competition Section annual conference 2016
Questions